Gibbons

[From Mike Acree (970929.1213)]

At the point last June when Bill suggested that Hugh Gibbons had
provided a defense of the state (or of something more than Humboldt's
night-watchman state) consistent with PCT, I withdrew from the political
discussion until I had a chance to read his article. Gibbons himself
never responded to my request for a copy, and it took 6 weeks to get one
on interlibrary loan. Now a response seems in order.

It was exciting to see someone taking up, in some depth, the issues I'm
interested in here, about the justification for the state; and Gibbons
has also read lots of good folks, including Powers. But the piece makes
a very odd impression overall. He starts off in the first half with a
thoroughgoing libertarianism, and then mysteriously, and astonishingly,
gives it all away in the second half. The overall effect is
unpleasantly like the libertarian, small-government rhetoric of the 1992
Clinton campaign. My sense is that, unlike Clinton, he actually likes
the early American libertarian rhetoric, but also wants to justify the
modern American state, and doesn't notice all the slips that allow him
to get from one to the other.

There is also some ambiguity, or tension, in the empirical status of his
claims. The Chomskyan subtitle, referring to "the deep structure of
American law," suggests empirical description (albeit at a "deep" level)
of a particular historical system, yet much of the piece is cast in
terms of what ought to be, creating a Panglossian impression that what
actually happened was just what ought to have happened. In a way that
he probably did not intend, I think he may have provided a pretty good
empirical description of what has happened in American law, just by
virtue of the incoherence of his own argument. The Bill of Rights is a
good example. Gibbons writes as though it still provided (and ought to
provide) a major constraint on state power, when in fact invocation of
the Bill of Rights these days marks one as quaintly old-fashioned, or
worse. If it were up for vote today, it would be opposed by well over
90%; I know of no one other than self-identified libertarians who would
support even the first two Amendments, in the stark form in which they
are stated.

Gibbons is careful, at the beginning, to delineate the ambit of state
concern: "coercion may be used only to avoid coercion, not to produce
benefits." He also distinguishes sharply between liberty and freedom;
the latter refers to the absence of natural rather than arbitrary human
constraints, and is not the province of the state. But then this
fine-sounding principle turns out to apply only where the consequences
of actions are known with certainty. With respect to individuals, he
argues, plausibly, that, where there is uncertainty about the impact of
our actions on the will of others, we may still act (and presumably be
prepared to pay for unforeseen damage). Then by the same logic, he
argues, the state enjoys the same freedom of action in the realm of
uncertainty. But the logic isn't the same. In his fundamental blunder,
from both ideal and empirical standpoints, he misses a distinction that
was crucial to the original authors of American law, which was embodied
in the Ninth and Tenth Amendments: that, whereas individuals may do
whatever is not expressly prohibited, the state, as intrinsically an
instrument of coercion, may do nothing except that which is specifically
permitted. (I am not sure, in this context, what to make of his
unelaborated contention that most state action does not involve
coercion. Is he thinking of things like typing and mailing draft
notices? Shopping for electric chairs?) Gibbons here unleashes the
monster, in contending that the state may do whatever it pleases, unless
the effects of its actions can be proven harmful. It's obvious where
that leads: disagreement about future consequences suffices to
establish uncertainty, and so in practice there are essentially no
principled constraints on state action. This is one of the ways, I'm
tempted to say, that Gibbons unwittingly gets it right with respect to
empirical description: his oversight of the Ninth and Tenth Amendments
parallels that in the history of American law, where they have provided
the basis for very few cases. (The Ninth Amendment, along with the
Thirteenth, was the basis for an eminently reasonable, but also
unsuccessful, challenge to the constitutionality of the draft 30 years
ago.)

In the realm of uncertainty, Gibbons argues, we are dealing with
"policy" rather than rights, and outcomes "supported by the claim of
rightness" "justify whatever law is necessary to achieve them." But his
use of the passive participle hides who is making, or justifying, the
claim, and it is not clear, even granting his utilitarian calculus in
the realm of policy, what evidence would suffice to overturn such a
claim of rightness. One would think the evidence for net harm were by
now rather clear in the case of, say, the wars on drugs or poverty--the
latter having not only failed to narrow the income gap after 30 years
but having gone a long toward destroying the Black family in the
process. It is interesting that the one example Gibbons gives of a
mistaken policy happens to be probably the only one that has ever been
repealed, namely the Eighteenth Amendment--as though any law that
remained in effect were de facto "right."

As the realm of policy expands against the domain of rights, Gibbons
loses sight of his own distinction between liberty and freedom, now
become largely irrelevant anyway. One illustration is his interesting
discussion of welfare, where he argues that income redistribution is
justified as a matter of policy, since its consequences to human liberty
are uncertain, but that recipients cannot claim a right to so-called
entitlements unless a connection could be established between material
goods and will. There is, in fact, a connection, but it is not the one
he needs to justify redistribution: the concept relating material goods
and will is not liberty, but freedom, as he defines these terms. State
action, such as redistribution, would be entailed only by constraints on
liberty, such as theft, and not by constraints on freedom, such as
mental, physical, or moral disability. So redistribution, were it
justified at all, would on his theory have to remain in the realm of
policy rather than of rights.

The more important instance where he appears to lose his own
distinction, however, is in his discussion of what he calls the "captive
audience" problem. You have something I want very badly, and I can't
get it anywhere else, but you are unwilling to part with it in exchange
for anything I'm prepared to offer. Are you coercing me? Gibbons would
evidently say yes, at least in certain cases. The extreme example I
think may be due to Locke, of someone refusing to sell you water at an
oasis in the Sahara. If he has more than he needs, and if you'll
otherwise die of thirst, are you justified in killing him to get the
water? In knocking him unconscious? Emergency situations like this are
a philosophers' staple for testing principles; another, which Gibbons
does not discuss, is the problem of shields (an invading army straps
young children on the front of its tanks). They require a quick
decision between repugnant alternatives in a life-or-death situation,
and I am not sure principles can be formulated for such contingencies;
it is correspondingly hard to fault people for whatever choice they
make. It may be to Gibbons' credit that he is not concerned with such
rare emergencies, but with the more everyday situations they shade into.
I recently agonized over whether to pay $600 for a plane ticket to
Washington. That was a lot more than I wanted to pay, but the airlines
had me captive; I didn't have time to make the trip any other way. Had
I decided to go, it would have been with considerable reluctance that I
parted with several hundred dollars more than I expected to. Perhaps
this example loosens the concept of captive audience to the point where
Gibbons would agree that I have not been coerced, and that it would be
wrong to force the airlines to sell me a ticket at a lower price; my
concern is that, contrary to his own claim that coercion is not to be
used simply to promote well-being, he seems ready to use it simply to
relieve me of hard choices.

The biggest problem with Gibbons' approach to the captive audience
problem, of course, is that he simply replaces isolated captive audience
problems with a MUCH BIGGER captive audience problem: the state
intrinsically makes us all a captive audience--many states literally
impose restrictions on leaving--and, enjoying a legal monopoly on
coercion, is in a position to extract "acquiescence" far more
effectively than a coal-mining company.

This dilemma is in fact characteristic of all attempts to solve problems
by creating a state. Everyone I know who thinks a state is necessary
does so for the same reason as Gibbons: that the axiom of respect is
not hard-wired in. What's interesting is that that's precisely the
reason that makes me question the idea of the state: would not that
argue for diffusing power as widely as possible, rather than
concentrating it in the hands of a few? You end up needing the
assumption that those in power are a better class of people than the
hoi-polloi--else how could they be trusted with special powers not
granted the rest of us? (I actually think some such tacit assumption
lurks in the attitudes of many of my liberal friends. My sense is that
it comes more naturally to those born to an educated elite. Not that
public officials are inferior, either; but I take seriously Acton's (?)
aphorism about power corrupting, which Gibbons also acknowledges. Karl
Hess recognized the threat first-hand in the Goldwater campaign: riding
around everywhere in a limousine, with a police escort, being insulated
from everyone except others in positions of power, it is easy to come to
feel that you are special, and above the rules to which the rest of us
are subject. He left politics at once and made his living thereafter as
a welder--but that is not the usual reaction to the experience of
power.)

To speak of "diffusing power," of course, implies that it is ours in the
first place to distribute in one way or another, but we are merely
talking about the properties of various possible systems. I assume
power inequalities would arise without anyone having been coerced; the
question is whether we gain anything by organizing a super-gang that can
beat up anybody else. Compare, following Leopold Kohr, the prospects
for peace in a world of many nations not too disparate in size with
those in a world with one or a few nations much bigger than the rest.
Anarchy, of course, is all we've ever had on the international level.
The historical record leaves something to be desired, but then so does
the continuing phenomenon of civil war (Bosnia, Rwanda, Northern
Ireland, the U.S., etc.); so it's not clear that a world government
would leave us any better off.

I know the standard response--it is certainly Gibbons'--points to the
power of the people in limiting the state, and to the fact that power in
American law is more diffused than in many other states. But some of
the mechanisms for this diffusion are notoriously weak; compare the
difficulty of trying to get even the local school board to make a major
policy change with the option of simply taking your business (your kids'
education) elsewhere, as you do in the private realm. Others have been
deliberately weakened by the state. A good example is the concept of
jury nullification, which the Founding Fathers clearly regarded as an
important check on state power. John Adams wrote, for example: "It is
not only [the juror's] right, but his duty . . . to find the verdict
according to his own best understanding, judgment, and conscience,
though in direct opposition to the direction of the court." Jury
nullification--"voting your conscience"--was famous for overturning the
Fugitive Slave Law, when the state couldn't get a conviction for
harboring fugitive slaves. But a century ago judges began telling
juries, with no basis in law, that their task was only to judge the
facts and not the law. What is interesting now is to see the reactions
to the Fully Informed Jury Association, which seeks to write this
informal tradition (which was upheld by the U.S. Supreme Court as
recently as 1972) into law. The major media are solidly opposed, the
usual argument being that it would lead to anarchy. Increasing state
power is not perceived as threatening; returning to "the people" some of
their former power is. I don't know what Gibbons thinks of FIJA, since
it was formed after his article was published; but arguments about
powers retained by the people ring hollow if they are coupled with
indifference or actual opposition to such efforts. Regardless of his
position on this particular issue, the general point is that popular
checks on state power are weak. We may well have passed the point of no
return on Gibbons' nice curve, where the growth of state power will
continue until societal breakdown forces a reversal, as it has in some
totalitarian regimes. (That point might arguably have been passed in
the Civil War, or in the Progressive Era.)

I should also say something about Gibbons' interesting remarks about
ownership. He argues that, because there is no intrinsic connection
between people and things, any such relation must be established by
_authority_. (In a less hierarchical way, one could imagine it
established by agreement, unless Gibbons means "authority" to include,
say, the way the rules of golf are established.) But is it just a
matter of decree, or convention, that we experience a closer connection
between you and (what we call) your house (your bed, your underwear,
your savings account) than between me and your house (etc.)? Gibbons
isn't strict about this; he wants to allow some "minimal" concept of
ownership (unspecified). Will a bureau actually decide how many pairs
of shoes I can claim as my own? Can I get a boot allowance if I don't
wear pajamas? Or can I have all the shoes I want but no more than 900
square feet of living space, unless I'm a bureaucrat who can get a
special exemption?

Gibbons argues, in particular, that it is difficult to justify the
concept of land ownership. And in a nomadic society, with essentially
unlimited access to land, such a concept is indeed irrelevant. But once
civilization (living in cities) begins, we confront issues of where we
can pitch our tent. How could anyone invest in a house without a claim
also to the land it occupied? (This is not wholly a rhetorical
question; maybe there are arrangements I haven't imagined.) Gibbons
wants to honor privacy, and he also acknowledges that privacy requires a
_place_; does that mean, absent ownership, that if I want to do anything
"in private," I have to sign up for a space? If the concept of
ownership is difficult to justify on theoretical grounds, the practical
case would appear to be clear, most importantly in relation to land.
People take better care of what they own (who washes rented cars?), and
the scandalous cases of destruction of natural resources all occur on
"public" or state-owned land--clear-cutting, overgrazing, or river
pollution.

It is still interesting to me, as I think I said in a previous post, how
little attention is given, by people, like Gibbons, who profess a
concern for identifying forms of social organization which respect (his
use of that word as fundamental is probably my favorite thing about his
essay) individual will, to thinking of alternatives to coercion.
Gibbons takes it for granted, for instance, that the state can only be
financed by taxation--overlooking such obvious counterexamples as the
lottery. I'm not particularly a defender of state lotteries, but they
raise, I think, more money than is actually needed in some cases; and
very little of it, I'm sure, comes from a spirit of charity, as Gibbons
implies it would have to. Why is he not considering, for example, the
way arbitration is currently financed?

I remain more convinced of PCT than of my own political opinions; but
I'm afraid I still find Chapter 17 of B:CP a much more coherent
application of PCT to social organization than Gibbons' article.

Mike

[From Bill Powers (970929.1956 MDT)]

Mike Acree (970929.1213)--

I appreciate your long critique of Gibbons' work, but I'm not the one to
argue about it. I think you should keep trying to get a response from Hugh.

Best,

Bill P.