Libertarians sometimes take their analogies too far. From the plausible insight that taxation is like forced labor certain respects, they jump to the entirely implausible conclusion that taxation is forced labor. To libertarians, this move appears to be a penetrating insight into the “essence” of taxation. To non-libertarians, it appears to be a kind of stubborn blindness to the multitude of respects in which the phenomena are different. Other examples, unfortunately, abound.

Take, for example, the oft-repeated libertarian claim that passing a law that requires him to do something is like pointing a gun at someone’s head and telling him to it. (See here and here for two recent examples from my recent exchange with Bryan Caplan) As with other analogies taken too far, there is a kernel of insight here. The insight is that laws are, ultimately, backed by the threat of coercion. The government does not merely request that you pay your taxes. It demands it. And if you refuse and are persistent and effective in your resistance, then at some point men with guns will show up at your door to compel your compliance or to lock you away.

As important as this insight is (and I do not deny its importance), libertarians nevertheless take it too far when they identify the coercive authority of law with a gunman issuing orders. To see this, I want to take a simple pair of examples dealing with a different sort of authority and then draw out two lessons from them.

Example 1: A parent orders his eight year old child to go to his room and stay there for a while as punishment for misbehavior. The parent is willing to use a moderate level of coercion to enforce this command, should it be necessary.

Example 2: A parent points a gun at his eight year old child’s head and tells him to stay in his room for a while as punishment for misbehavior.

The first and most obvious lesson of these examples is that even if laws are coercive, not all coercion is the moral equivalent of pointing a gun at someone’s head. The parent in example 1 is acting in a way that most of us would probably not judge as wrong, while the parent in example 2 clearly is. Alternatively, even if you think the parent is acting wrongly in both cases, the wrong in example 2 is clearly of a different and more serious kind. So not all coercion is morally equivalent.

Can we say anything more about this difference? I think we can, but let’s first move to a different pair of examples that illustrate the thesis in question more precisely.

Example 3: The city government posts a stop sign at an intersection in your neighborhood.

Example 4: I walk up to your car at that same intersection, point a gun at your head, and tell you to “stop.”

Let us grant that both examples 3 and 4 involve the use of coercion. Even still, an important difference between them has to do with the range of options that the two actions leave open to their target, and hence, I think, with the degree to which they involve interference with the target’s negative liberty. In example 4, my action leaves you with precisely two options: stop, or be shot. In example 3, however, your range of options is considerably broader (though still narrower than it would have been had no law been passed). You can stop, or (assuming you are being watched) you can pay a fine. Or, if you don’t want to pay the fine, you can go court and try to appeal. If the appeal doesn’t work, you can, I suppose, either pay the fine or perhaps have your wages garnished. If you somehow escape discharging your financial debt in either of these ways, you can go to jail peacefully when the police come to get you. If you resist and the police use force to try to bring you to jail, you can resist that force to the utmost, or you can give in. If you resist the force to the utmost, then and only then might you get shot. More likely you’ll be pepper sprayed or beaten.

That’s no picnic, to be sure, but it’s certainly a less substantial an infringement upon your liberty than getting shot. And the fact is, the threat of physical violence manifests itself only after you have made a number of decisions that could have gone otherwise, and that would have involved a much less substantial infringement upon your liberty. As a result, your ability to control your own life is substantially greater in example 3 than in example 4.

Another morally relevant distinction between examples 3 and 4 has to do with the form of the restriction. Example 4 involves a single, isolated command whereas example 4 involves a general rule. Liberal theorists have long thought that there is something significant about the generality of law, though they have disagreed about what precisely it is. Friedrich Hayek, for example, sometimes wrote as though truly general laws would not really be coercive at all. And this is quite implausible. What is plausible, on the other hand, is his contention that the generality of laws lessens the impact of their coerciveness on our freedom.

The coercion which a government must still use for this end is reduced to a minimum and made as innocuous as possible by restraining it through known general rules, so that in most instances the individual need never be coerced unless he has placed himself in a position where he knows he will be coerced. Even when coercion is not avoidable, it is deprived of its most harmful effects by being confined to limited and foreseeable duties, or at least made independent of the arbitrary will of another person. Being made impersonal and dependent upon general, abstract rules, whose effect on particular individuals cannot be foreseen at the time they are laid down, even the coercive acts of government become data on which the individual can base his own plans. Coercion according to known rules, which is generally the result of circumstances in which the person to be coerced has placed himself, then becomes an instrument assisting the individuals in the pursuit of their own ends and not a means to be used for the ends of others.(The Constitution of Liberty, p. 21)

So laws, even if coercive, and even if morally wrong, are not the moral equivalent of pointing a gun at someone’s head. Which leads to the second lesson, a lesson at which I will only gesture here. That lesson is that it is a mistake to think of coercion as the essence of law. What is essential to law is its claim to authority. Coercion is important, but both in terms of the way the law perceives itself and in terms of the way it is perceived by the majority of its subjects, coercion is at best of secondary significance compared to the law’s claim to authority.

The same is true of the parent in example 1. Perhaps coercion does lurk in the background behind the parent’s command. But far more important than coercion in understanding the parent-child relationship is the parent’s claim to, and the child’s acceptance of, the parent’s authority to order.

In some ways, this distinction receives its most famous exposition in H.L.A. Hart’s masterpiece of jurisprudence, The Concept of Law, especially chapter 5. In the first half of his book, Hart engages in a thorough critique of the theory of law espoused in John Austin’s The Province of Jurisprudence Determined. The core of Austin’s theory is that law is nothing more than an order backed by a threat, given by someone to whom others are in a habit of obedience, and who himself is in a habit of obedience to no one. Hart’s critique of this position is one of the most devastating takedowns in the history of 20th century analytic philosophy, and libertarians (who are often intuitively attracted to something like the Austinian theory of law) would do well to read it. This recent paper (gated) by Christopher Morris, develops the distinction between coercion and authority in greater depth, and is also well taking a look at.

To be clear, I am not claiming that state’s actually have authority in any normative sense. Hart was a legal positivist, and so whatever notion of authority flows out of his writings is a purely descriptive one, though one that describes, in part, the normative attitudes that citizens and state officials typically have. Nor am I claiming that state coercion is unimportant, or nothing to worry about, or something we shouldn’t have much, much less of. State coercion is a problem. But to solve the problem, we have to accurately understand it. And the gunmen metaphors to which libertarians so often resort are not very helpful.

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  • Hume22

    Matt,

    I disagree with the Razian view that law claims legitimate authority and the Hartian/Razian view that coercion is not an essential feature in understanding the nature of law.  Although I may not be able to persuade, here is link to my thesis that argues against these positions that you may be interested in reading (see Section 6 on law’s normative claims and Section 7 on the role of coercion in Hart and Raz) : http://lsolum.typepad.com/legaltheory/2011/12/gerry-on-philosophical-anarchism-the-nature-of-law.html

    • http://independent.academia.edu/DannyFrederick Danny Frederick

       I agree that there is no political obligation, so that, where laws do not reflect (objective) morality, they have no authority. But I think it is still true, as Matt says, that laws CLAIM authority. We think the claim is often spurious; but it is still of the character of law that it carries that claim with it.

      • gcallah

         “I agree that there is no political obligation, so that, where laws do not reflect (objective) morality, they have no authority.”

        Objective morality as you declare it to be, no doubt.

        • Hume22

          It’s probably better to say even where they do reflect objective morality they (those laws)*still* have no authority. 

    • Hume22

      Here is the correct (SSRN) link to my paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1969980

      Danny,

      I understand the distinction and I realize that it is the majority position among legal positivists (and some non-positivists as well).  I believe, however, that this Razian view is misguided.  If you are interested in my arguments, take a look at that paper linked to above (Section 6, pp. 45-62).  I welcome any and all criticisms/suggestions/etc.    

      • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

        Thanks Hume. I’ll add to my reading list! Would it be possible, though, for you to briefly summarize your argument and its relation to my own?

  • Kevin Vallier

    I agree with this post entirely. I think the traditional libertarian will respond that because the state is prepared to use ultimate force in the off-chance you continuously resist compliance that state coercion is the equivalent to putting a gun to your head. After all, the paradigmatic robber need not start robbing you with a gun. He can simply threaten to beat you up. If you resist, then and only then will he use a gun.

    Here’s my reply: without a presupposed theory of rights at work in the background, we cannot determine who the escalator is. One cannot conclude without presupposing some moral theory that state coercion is equivalent to pointing a gun to your head because its not clear that it is the representative of the state that is solely responsible for the conflict rising to the use of deadly force. The apparent resistor shares responsibility (unless he is entitled to resist, but that’s just to presuppose a moral theory).

    In the end, I see your post as part of a broader BHL project of convincing libertarians to distinguish more carefully between facts and norms. Consider that many libertarians claim that it is a fact that we own ourselves, and then conclude from this purported fact that certain moral claims are valid. But insisting that self-ownership is a fact just is to make moral claims. But SO libertarians frequently miss this. Similarly, the only way that state coercion is equivalent to putting a gun to your head is if state representatives are morally responsible for the escalation of the use of force.

    • 3cantuna

      In the same token one can call the state an inferior even destructive means to ends, if taking prosperity as a given end, without resorting to normative judgments. It just so happens that the NAP dovetails with economic analysis. For as crude as the NAP appears to BHLs, it works more than it doesn’t. Newton’s mechanics works more than not. Yet we are dealing with human beings with immediate needs/wants. Why should everyday rules for everyday people require sophistication or perfection?  I realize it provides jobs for rent-seekers. E.g. there is not a human being capable of knowing a tiny fraction of all the laws, regulations and executive orders spewed by Washington DC.   The point is that this epic proliferation is a product of the means, the state. Can the law ever be better than the quality, morally and rationally, of means chosen to attain it?   

  • frostbytex

    The simplest sentence structure consists of a subject, then a verb, and then a noun. Sometimes an adjective may modify a noun, and sometimes an adverb may modify a verb. In order to indicate temporal, spatial or logical connection between nouns, you might gravitate towards prepositional phrases. Then we get into a whole world of introductory clauses, indirect objects, and other such tantalizing grammatical elements. I cannot even begin to describe the wonders in the English language.

    I suspect you have a similar problem.

    Ron Paul 2012

  • Mark LeBar

    Matt, I suppose it depends on just what you mean by ‘authority.’ If it means something like a capacity to obligate in ways which justify the use of coercive measures to enforce, which I’d think would be essential to any adequate understanding of the authority governments claim to have in, say, putting up stop signs, then I’d think authority and coercion do not pull apart nearly as tidily as I take you to be suggesting. The relevant authority *just is* the authority to coerce as a way of issuing and ensuring compliance with commands. So while you’re right that the stop sign and me holding a gun to your head are not quite the same thing, if I claim the *authority* to compel you to stop, there is a level at which they are identical. Take the gun out of my hand while leaving me some sort of authority to command you to stop, and the analogy ends. The gun does indeed matter.

    • Kevin Vallier

      Adding to Mark’s comment, I’d put it this way: Law L has authority over agent A only if (i) A has a duty to comply with L and (ii) representatives of the state are permitted to force A to comply with L. Authority at a minimum consists in a claim-right on behalf of the law-making body to compliance with its dictates. I can’t see that law L has authority if you drop (i) and I can’t see that you have a law at all if you drop (ii). 

  • Gabe Ayers

    Due to the grammatical errors in this article I can’t tell if I agree or disagree. If you could send this to an editor and repost it that would be great!

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      My apologies. I’ve fixed some of the most egregious mistakes. Let me know if there’s anything remaining that interferes with your understanding, and I’d be happy to try to clarify.

  • Hume22

    In light of reading Gaus, I wonder if I can make the following additional argument.  Claiming authority is not a distinctive and central feature of law.  Social morality claims authority.  What is distinctive about law is a claim to coercive superiority, that is, a claim to an ability and willingness to actively *enforce* its norms (whether those norms are prescriptive (i.e., providing reasons for action) or imperative (stipulated as those not based on the reasons that apply to the norm subject)).

    • Hume22

      The more I think about, Raz would likely respond by pointing to the institutional nature of law (law as an “institutionalized normative system”) as distinct from social morality.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      I’d be interested to see what you think of Chris Morris’ paper. Here’s one thought experiment he presents:

      Suppose that a particular state is legitimate, its basic structure
      and its laws are just, and those subject to its laws are obligated to
      obey them. Suppose that the latter are always motivated to comply with
      just laws; they do not, for instance, suffer from any weakness of the will
      or any other problem which might lead them to fail to do what they ought
      to do. Then, coercion and force would not be needed to enforce the law.
      This possibility—admittedly fantastic and utopian—seems perfectly coherent.
      There is nothing in the nature of a law which requires that compliance
      be assured coercively. It does not seem to be, then, a conceptual truth that
      states are coercive. (State Coercion and Force, p. 35)

      And more:

      not see coercion and force as supplementary to authority. Coercion and
      force are needed when the state’s claimed authority is unappreciated,
      defective, or absent. Unjust states, recognized widely as such, will need to
      rely heavily on force; just states presumably need much less force.46 The
      latter will have recourse to coercion or force only when applying the law
      against the ignorant, the irrational, and those who may lack a sufficient
      reason to comply. (p. 40)

      • Hume22

        This is very similar to Raz’s thought experiment in Practical Reason and Norms (1975) where he has us consider a society of angels.  I try to answer Raz in my paper (pp. 68-74).  An excerpt summing up part of my argument:

        As
        a result of these considerations, it appears that coercive superiority is
        essential for understanding “our” concept of law.  Kenneth Himma thus seems correct in his
        assertion that a “society with a working normative system in which the
        norms are not coercively enforced strikes me as a society that, as a Marxist
        might put it, has transcended law.”[1]  I also agree with Jeremy Waldron in his claim
        that the presence of coercion is “indispensible to the ordinary notion of law.”[2]  Thus, a society of law-worshipping beings
        guided by a normative system that does not provide for the enforcement of its
        norms is unlikely to be recognized as governed by a system of laws at all

        [1] Himma, Law’s Claim of Legitimate Authority, supra note 277, at 308, n. 42.

        [2] Waldron, The Concept and the Rule of Law, 43 Ga.L.Rev.
        1, 30 (2008).

      • Damien S.

        “Mutual coercion, mutually agreed upon.” — Garrett Hardin.  The state, or any other organization, can be legitimately coercive when people agree that no one should be allowed to do X, because it harms other people or has bad long term effects.  These same people have to be coerced from doing X if it is advantageous to the individual doing it.  They put up with it as the price of making sure everyone else doesn’t do X; OTOH, everyone’s ideal would be to be allowed to do X themselves, while preventing anyone else from doing it.  Thus, reasonable and legitimate coercion.

        Some people may not agree in reality, of course.  But then, if X does harm other people, then there’s a right to stop it, right?  If there’s disagreement about whether X is harmful, well, back to Hobbes.

      • 3cantuna

        “Suppose that a state is legitimate…”   Well, if this supposition is a necessary device to make what follows seem reasonable then Morris is in trouble.  What is a state?  Where do they come from?

        • Hume22

          You should read his An Essay on the Modern State. I highly recommend it, even though I strongly disagree with the Razian/Leslie Green view that a claim to authority is essential.

          • 3cantuna

            Thanks, Hume. I have read snippets of Morris already and find it intriguing. Will read more when get a chance. He cites Strayer (and Munro presumably), the top notch Medieval historian, e.g., whom I suspect of writing history as a dialectic between oppressive decentralized power and corrupt but more promising central authority…. 
            But what happens when one views the Monarch as just another conquering baron that merely happens to be more successful than the others? 

            I will need to look up Raz/Green too.

  • Jessica Flanigan

    I’m confused by the ending of this post.

    Like you, I think the best account of coercion is moralized, coercion depends on authority and entitlements. So for example, A coerces B if A deprives B of choices that B is entitled to make. For an act to be coercive B must be genuinely deprived of a choice and she also must be entitled to make that choice in the first place.
     
    So far then, I agree, this will all back up to authority, but coercion still matters because the best definition of coercion presupposes a theory of authority. You then say “ I am not claiming that states actually have authority in any normative sense.” But if the state doesn’t have the normative authority to make a law, e.g. taxation, then it’s hard to see why the state is any different from a gunman who lacks the normative authority to take your money.

    It sounds like you want to resist this move, but you aren’t resisting the gunman analogy, instead you are giving an argument that this particular gunman (the state) is entitled to coerce. But why? Because a lot of people seem to think it is entitled to coerce? Say the gunman puts on a police uniform and then goes around robbing people, he still doesn’t have the normative authority to take the money so he’s still wrongly coercing them. Just because
    public officials dress it up in the language of authority doesn’t mean that they’re entitled to enact coercive policies.
     
    For anyone who is skeptical about political authority then, the gunman analogy remains apt.

    • Aeon Skoble

      What Jessica said. 
      But just for the sake of saying something original, I’ll add that I disagree, Matt, with your claim that coercion isn’t the essence of law, authority is.  There are plenty of examples of non-coercive structures that have authority (think the chem lab).  What makes the state the state isn’t its claim to authority but that it can force you to accept its authority.  You don’t have to be a Rothbardian to see this; Narveson makes the same point.  Your examples 3 and 4 don’t work, since no one thinks Joe Randomguy should be allowed to act this way, but people do think the state can do this.  Their use of force is taken to be legitimate.

      • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

        I didn’t intend to claim that a claim of authority was a sufficient condition for statehood, which is the only claim your second sentence seems to really target. I do think it is necessary though, in a way that coercion is perhaps not (again, see my response to Hume above).

      • gcallah

         “There are plenty of examples of non-coercive structures that have authority (think the chem lab). ”

        So, if we have many cats around, but only one wearing a bell, then the essence of that cat must be the bell?

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Hey Jessica,
      Maybe I’m a little confused by the ending of my post too. 

      I didn’t mean anything I said in this post to take sides on the debate over whether coercion is best understood in moralized or non-moralized terms. I’ve argued for a moralized conception elsewhere. But, honestly, it’s an issue about which I’m less than 100% certain. In some ways, I think non-moralized accounts fit our linguistic practice better. Criminals who are subject to punishment are coerced, I think, even on the assumption that their punishers are entitled to act as they do.

      I did indeed want to resist the normative claim that states have authority in anything other than a purely descriptive sense. The point I was trying inarticulately to make, I suppose, was that for a wide range of questions we might want to ask about the state, the concept of authority provides a better understanding than does coercion. State-actors themselves see authority as more central to the business of law making and enforcement than coercion. Most people obey laws because of their belief in its authority, not because of the threat of coercion. Conceptually, the concept of authority seems essential to states in a way that coercion does not (see my response to Hume above). So that’s all I had in mind. 

      I do think states are like gunmen in some sense. I actually suppose a mafia would be a better analogy, since mafias utilize rules and authority in a way that gunmen do not. And libertarians have certainly used the organized crime metaphor a lot. I probably should have discussed this in the original post.

  • Javier Hidalgo

    I have a question about the difference between the gunman and the state. Apart from claiming authority, you say that the main difference is that state coercion gives people more choice. But does this really show that state coercion is different from the isolated gunman?

    Imagine that the gunman gives you more options. He says: “I’ll shoot your (or beat you) if you do X, but you can still do X1, X2, or X3.” More concretely, suppose that the man says “I’ll beat you if you don’t stop at the stoplight, pay me a fine, and come to prison quietly, but I’ll hold back if you either stop at the stop light, pay the fine, or come to prison quietly.”

    It seems like the lone gunman and the state are pretty much the same again, especially if you’re a philosophical anarchist.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      That’s a nice point, Javier. I agree that the more options the gunman gives you, the more like a state it looks. That still leaves us, though, with the second kind of difference which I illustrated with the quote from Hayek. There’s a difference, and a morally significant one I think, between the coercion involved in isolated commands and that involved in general rules. I don’t claim that this difference will be enough to make the latter non-wrongful. But wrong things can be wrong in interestingly different and important ways.

  • http://profiles.google.com/michael.giberson Michael Giberson

    Frequently, as a practical matter, the government will seize your property instead of sending in agents pointing guns. You don’t pay your taxes, government reasserts its claim to the taxes, you continue to resist, and then the government seizes your bank accounts, paychecks, and sometimes your physical property.

    Seizing property seems morally distinct and less of an imposition than threatening with a gun (though here again some libertarian theorists would say they are essentially the same, given that if you succeeded in resisting property seizures, then the government would ultimately backstop its claim using guns).

  • http://twitter.com/99guspuppet Gus S. Calabrese

    How many angels can dance on the head of a pin ?

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      42.

      • j_m_h

        Right answer but it was the wrong question.

  • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

    To me it doesn’t matter how quickly or slowly government withdraws its gun from the holster. It’s still a gun. 

    • gcallah

       Just like that gun that enforces private property rights, correct?

  • http://profiles.google.com/aretaeblog K Aretae

    Matt,

    As far as I can tell, you’re proposing a hidden position that many libertarians  dismiss out of hand.  Your assertion:  Someone can have legitimate authority over another (without informed consent).  While many people, non-libertarians especially, think of this as an uncontroversial position…Libertarians find the opposite position as obvious (legitimate authority clearly does not exist).  

    You are asserting that state/legitimate authority is an out from the law/tax = violence.  But law/tax = violence is (generally) a result of the prior rejection of legitimate authority.  So I am less convinced by your response.  

    Do I misread you?

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Perhaps, though it’s probably largely my fault. See my response to Jessica above. I didn’t mean to be claiming that state have legitimate authority, much less that it’s obvious that they do. And I’m actually not trying to claim that taxes/laws are morally legitimate. Just that they’re not the same thing as orders issued by a gunman.

  • Wilson263

    On Examples 1 and 2, the key variable is the level of coercion; moderate (whatever level you want to put that at) and extreme/severe. Arguably, that state is only offering the latter (or rather all other forms of coercion that the state offers up are ultimately backed by such severe coercion). To rework the examples, are “Go to your room or I’ll spank you, and ultimately shoot you if you resist that” and “Go to your room or I’ll shoot you” really that different? I don’t think so.

    That naturally leads into Examples 3 and 4, where the key variable is ‘range of options’ In example 3, “The city government posts a stop sign at an intersection in your neighborhood”, there are a lot of possible outcomes between you and actual, physical violence. In Example 4, the threat of violence is more ‘near/immediate’, “I walk up to your car at that same intersection, point a gun at your head, and tell you to ‘stop.'”. Admittedly, the optics there are different. But what if we add an additional example to equalize the range of options between you and the violence…

    Example 5: I walk up to your car at the same intersection, point a gun at your head, and tell you to “Stop, or I will issue a fine to you. You can appeal the fine, but if your appeal is rejected and you refuse to pay, I will garnish your wages. If you somehow manage to escape discharging your financial debt, I will attempt to take you to jail peacefully. If you resist, I will attempt to physically force you into jail. Depending on the level of resistance, you might be shot, or perhaps pepper sprayed  and beaten into submission.”

    So is Example 5 really that different from Example 4? In both, there are a wide range of options/outcomes between you and being shot or beaten by the state. Would it make an difference if, in a sixth example, the stop sign merely contained the informational content of Example 5? In all instances, you are disallowed from not-stopping and in effect may only choose how far to take your protest. Does that matter, really?

     

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Good points. I had thought about addressing the first point you make in the post, but decided to leave it out for reasons of space. It certainly looks as though the maximum level of violence that the parent will escalate to in case one is far less severe than the level threatened in case 2. But I’m not so sure. Consider how much one has to do in order to provoke the state into using deadly force. And then imagine that the child acts that way – not only continually disobeying your commands, but violently resisting you, and threatening you with credible deadly force. I suspect most parents probably wouldn’t pull out a gun if their child do it. But they might very well call the police, who bring their own guns. So perhaps 1+2 aren’t quite as different from 3+4 as they appear?

      Your second point is a good one too, and similar to the point raised by Javier above. What do you think of my response to him?

      • Wilson263

         

        But they might very well call the police, who bring their own guns. So
        perhaps 1+2 aren’t quite as different from 3+4 as they appear?

        Thanks! That was essentially my conclusion as well. Once you equalize the level of violence offered, the distinction between the two sets of examples isn’t that large. The main difference then would seem to be what you called the ‘range of options’ and what I called the ‘distance’ to the use of force (i.e., how many hoops you have to jump through before there is literally a gun to your head).

        Your second point is a good one too, and similar to the point raised by
        Javier above. What do you think of my response to him?

        That still leaves us, though, with the second kind of difference which I
        illustrated with the quote from Hayek. There’s a difference, and a
        morally significant one I think, between the coercion involved in
        isolated commands and that involved in general rules. I don’t claim that
        this difference will be enough to make the latter non-wrongful. But
        wrong things can be wrong in interestingly different and important ways.

        True, but I wonder just big of a difference it is. Looking at this third variable (“rule generality”/arbitrariness), we can do the same kind of equalization. Contrasting with Example 3 , “The city government posts a stop sign at an intersection in your neighborhood”, and (new) Example 6:

        “A man with a gun sits at the intersection and says “[insert text of Example 5 here]“. He says this to each and every driver that comes by, does so every day, had done so for as long as anyone can remember, and credibly promises to do so for all the rest of time (he will choose a replacement upon retirement).” (If it helps in equalizing arbitrariness, suppose that there are other gunman in other intersections doing exactly the same thing).

        Is this gunman substantially different from the government? Admittedly, the government is a very odd gunman compared to one we might see in the news (substantial ‘distance’ between you and actual violence, hypothetically non-arbitrary demands), but I think it’s ultimately a gunman (or fair to analogize it as such).

  • j_m_h

    As with other analogies taken too far, there is a kernel of insight here. The insight is that laws are, ultimately, backed by the threat of coercion. The government does not merely request that you pay your taxes. It demands it. And if you refuse and are persistent and effective in your resistance, then at some point men with guns will show up at your door to compel your compliance or to lock you away.

    Isn’t there a bit more than a kernel of insight? Caplan was actually raising the question “Should the government even be able to escalate to such violence in just any case?” (At least that’s the question I see being raised.)

    My concern with many of the libertarians that support the laws = gun at the head is that they really don’t care that laws will allow someone to point a gun at someone’s head. They only seem to care about what are and are not laws. For the laws they agree with they are more than happy to have the government point guns and many even claim the right to do so for themselves.

    Do we really want to say government is unlimited in it’s application of force when enforcing any law, regardless of how trivial even if legitimate? 

    I do think that there are some constraints on such excavation of violence but they do seem to be eroding and more seem to be internal regulation and cultural constraints in the form of avoiding bad press. I certainly think it’s worth discussing what limits the government (and others) might have in terms of enforcing specific classes of laws–which is distinct from what penalties are imposed on violators.

    • http://independent.academia.edu/DannyFrederick Danny Frederick

      Good point. One of the advantages of a fine is that it allows you to break the law, and pay the fine, if breaking the law is worth more to you than paying the fine.

      • j_m_h

        For me the issue is a bit deeper than merely offering flexibility in adherence to the law. It’s more in line with the idea that two wrongs don’t make a right. Even if there was an initial wrong/transgression that certainly does not grant anyone carte blanch escalation privileges — there’s clearly a balance between the transgression and the response.

        While is suppose there’s a potential role for allowing people to either pay a fee as the only consequence for the violation I’m not sure how widely that can be applied — this of course speaks to difference classes of law.  I would wonder what characteristics a law would have that we’d say it’s okay to break the law if the violator just pays a fine to the government? Why do we even need such a law?

        But there is also another aspect of the proposal that I find difficult to reconcile — Rule of Law. Allowing some to buy their way out of various laws can create divisions within society and, at least on the surface, would seem to reject the notion of a Rule of Law. The distribution of wealth has a significant impact in this area. (As does the issue of the marginal utility of a dollar — which then is problematic for any fixed level fine stated only in dollar terms.)

        • http://independent.academia.edu/DannyFrederick Danny Frederick

          Let us suppose (contrary to fact) that our laws reflect moral principles. Laws are general rules. There are always circumstances in which the rule gives the wrong result, even if it generally gives the right one.  In those circumstances people ought to break the rule and take the punishment for it. So long as they are punished, the rule of law applies; and so long as they accept their punishment, they are showing respect for the law and for the principle of the rule of law. One reason why the punishment should be proportionate is to allow people to break the law when the benefits of doing so are great.

          Should the punishment ever be a fine received by the government to be used at the government’s discretion? I doubt it. The fine should represent compensation to the victim and be passed on to the victim. If there are no victims, there should not be a law. If the victims are dispersed throughout society (general environmental damage, for instance), the fine could be used to ameliorate the environment. And so on.

          The fact that rich people can more easily pay a given fine, or amount of compensation, than poor people is a red herring. Assume absolute equality, or whatever form of equality you find appealing. What I said above is still true. If equality is a serious issue (which I deny), it should be dealt with separately.

          • j_m_h

            Danny, clearly there are arguments to be made that support your position. However, you are presupposing a theory or law where more than one exists; several have merit. One alternative theory of law assumes a deterrent to violations not merely compensation for damages and costs. Under such a regime, in cases where the punishment is a monetary fine then clearly the idea of differential fines given one’s financial conditions may make sense. 

            In fact, we currently observe such behavior in existing legal proceedings.I don’t see how the issue of mitigating circumstances belongs in the discussion — that’s a question for the trial process as far as I’m concerned.

            Again, the more important question in my mind is that of limiting the escalation of actions to some point of violence; putting guns to heads, without consideration of the actual violation itself. Whether or not there are fines for someone to pay is hardly getting to the core issue of the question I posed.

          • http://independent.academia.edu/DannyFrederick Danny Frederick

            I agree there are some law violations where compensation and costs would not be sufficient, because of fear and such like. And I take your point that, whatever we think about equality, ability to pay may need to be taken into account in deciding on a financial penalty.

            I was not really talking about mitigating circumstances, at least not in the sense of a plea that may be made by a culprit. I had in mind cases where the culprit accepts the full penalty, perhaps even demands it, but broke the law because the benefits were worth paying the full penalty.  The general point here is that each of us has to make his own moral judgement about what to do and, even in cases where he thinks the law is generally a good one, he might think that, all things considered (including the penalty to be paid for breaking the law), this law should be broken in these circumstances.

  • Michael Zigismund

     

    I appreciate your expounding this aforementioned point in a longer
    post, Matt.

    When I first heard the gun metaphor, I was also taken aback,
    but I simply couldn’t find any logical way to shake it. The following are friendly,
    respectful challenges in that spirit.

    1) Re: the parent-child relationship ex-1/2, there is no necessary
    gun in the room in ex-1. You explain that “not all coercion is the moral
    equivalent of pointing a gun at someone’s head,” but we are not talking
    about all coercion. We are talking only about state coercion, which does
    involve the gun at the end.

    2) Re: the gun, or pepper spray and a beating, the
    libertarian critique remains the same. Are you willing to pepper spray me if I choose
    not to participate in your law? Are you willing to beat me? Are you willing to
    lock me up? Etc.

    3) Re: ex-3/4, the ‘range of options’ distinction is more a ‘range
    of time’ (are we to be shot now or later?), and thus offers no moral distinction.
    In ex-4, at any time before the gun is shot, either the outlaw could choose to obey
    the gunman or the gunman could choose to forgive the outlaw. Ex-3 is exactly
    the same, except the time the outlaw or the gunman have to change their minds has
    been lengthened. This descriptive distinction does not change the end in practice,
    and so does not entail a moral distinction.

    4) Which brings us to Hayek, whose concept of coercion was
    absolutely decimated by Rothbard in his Ethics of Liberty. To Rothbard, who also
    quotes your excerpt from Constitution of Liberty, Hayek’s logic “leads to
    a patently absurd weakening of the concept of ‘coercion,’ and the inclusion of
    aggressive and patently coercive actions under a benign, non coercive rubric.”
    His case is worth a look: http://mises.org/rothbard/ethics/twentyeight.asp

    5) Re: the state’s claim to authority (if we assume the legitimacy
    of a social contract), coercion of the individual still exists, whether the
    majority votes or not; the gun in the room remains.

    • gcallah

       “Re: the gun, or pepper spray and a beating, the libertarian critique
      remains the same. Are you willing to pepper spray me if I choose not to
      participate in your law? Are you willing to beat me? Are you willing to
      lock me up? Etc.”

      Which is exactly what the libertarian intends to do to those who will not participate in his property-based system of law.

      • 3cantuna

        The state is also a property based system of law.

  • geoih

    Your scenarios are completely uncompelling. The parent child relationship is based on biology. Parents have authority over children only temporarily, in order for children to become mature enough to survive on their own. At that point the parents’ authority is terminated (at least in theory, but less so in practice with the state continuously inserting itself as parent to all children). The parent child relationship is one that could (and often is) easily abused, but it is a product of biology, not human invention.

    Your second scenario (examples 3 and 4) is a better illustration of the exact point you’re trying to dispel. Somebody randomly walking up to a car with a gun and ordering it to stop is the same thing as what the state does with it’s stop sign. If the state posted armed men at each stop sign, what do you think would happen to anybody that refused to stop? Simply because the state does not have the resources to post men to enforce every stop sign does not change this fact. It simply illustrates the impotence of trying to create morality through force.

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      I suspect there’s a good deal more to parental authority than biology. Biology would seem to be neither necessary (adoption cases) nor sufficient (abusive/negligent parents) for parental authority.

      Regarding your second point, I guess I just have to balk. Somebody randomly walking up to a car with a gun and ordering it to stop is just not, for the reasons articulated in my post, the same thing as what the state does with its stop sign. If the state posted armed guards at each stop sign, I do not think it would shoot people who ran through them. Have you ever been pulled over in a speed trap? A cop, with a gun, waits on the side of the road for people to break the speed limit, and pulls them over when they do. This happens a lot. In very, very few cases, I suspect, does the perpetrator get shot.

      • geoih

        Quote from Matt Zwolinski: “If the state posted armed guards at each stop sign, I do not think it would shoot people who ran through them. Have you ever been pulled over in a speed trap?”

        You’re maginalizing the reality of the force being wielded by the state. Simply because virtually nobody chooses to run from a speed trap (and be chased, physically apprehended, etc.) doesn’t change the fact that the state’s speed trap is premised on coercion and force. It’s precisely because of this premise that people do stop. It is the same logic that causes most people to hand over their wallet when being robbed.

        As for parental authority, where does it come from if not biology? It’s the same biology that drives a person to adopt an orphan, or for an entire beehive to support offspring that are the queen bee’s. It existed before any state and is driven by something entirely different than politics. True parental authority only exists as long as the child chooses to recognise that authority.

        • gcallah

           ”
          the state’s speed trap is premised on coercion and force.”

          As is all law, including the whatever law would exist in libertopia.

          • Hume22

            Gene, I have not read your paper yet on liberty.  I know you argue for liberty-as-nondomination.  How much in agreement are you with Pettit, particularly the consequences he argues are the result of such a conception of freedom (i.e., new republicanism)?

          • geoih

            So, your position is that all law does ultimately flow from the barrel of a gun (i.e., the libertarian analogy is correct and Mr. Zwolinski is wrong).

  • http://twitter.com/dullhawk Kent McManigal

    The penalty is ALWAYS “death”.  http://www.nostate.com/116/the-penalty-is-always-death/

    • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

      “The power to tax is the power to destroy.” John Marshall, McCulloch v. Maryland (1819).

      There is hope, however, because the Constitution creates two classes of taxation, direct and indirect, which incidentally too few lawyers know about.

      The federal government instinctively avoids direct taxation like the plague because this kind of tax makes state governments into buffer zones between the IRS and the individual.

  • JW Ogden

    But of course sometimes it is appropriate to point out that some laws will require the cracking of some heads.  When my friends propose higher taxes on cigarettes I remind them that there is already a black market and that it is tempting to young men and so some will end up in prison.   Same with broad bans on gun ownership.  

    • http://www.sandiego.edu/~mzwolinski Matt Zwolinski

      Agreed.

  • good_in_theory

    Ran across this quote today and it reminded me of this thread:

    [Referring to the first form of legitimate kingship]

    “The king has not the power of life and death, except in certain cases, as for instance, in ancient times, he had it when upon a campaign, by right of force.  This custom is described in Homer.  For Agamemnon puts up with it when he is attacked in the assembly, but when the army goes out to battle he has the power even of life and death.  Does he not say: ‘When I find a man skulking apart from the battle,  nothing shall save him from the dogs and vultures, for in my hands is death’?”

    -Aristotle, Politics Book III

    The underlying point, of course, is that the laws matter, and that judgment mediated by law is superior to the simple judgment of men (as is argued later in Book 3.)

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  • JCLester

    What is distinctive about political/government/state ‘law’ is not that it involves coercion (force and the credible threat of force) but that it is aggressive coercion rather than defensive coercion. If it were all and only defensive coercion it would not be political.

    • gcallah

      Hi Jan. How have you been?

      1) The political is unavoidable in human society, even in ancapistan, where there still need to be political decisions made about when coercion is aggressive and when it is defensive.
      2) Those decisions will be enforced on others who will see that enforcement as aggressive.
      3) Therefore, there is nothing unique about the state in this regard.

      • JCLester

        Hi Gene, busy. How about you?

        1) No state = no politics.
        2) It is an objective matter whether enforcement is aggressive or defensive.
        3) Only the state is inherently aggressive.

        • Hume22

          Deciding whether to have a state is political.  Thus, the political is not dependent on the existence of a state.

          • JCLester

             Political theory is not political activity. I only object to the activity.

        • good_in_theory

          “It is an objective matter whether enforcement is aggressive or defensive.”

          Hardly.

          • JCLester

             Can you give an example that is not objective?

          • good_in_theory

            Not really interested in examples.

            An objective determination of aggression and defense would require a clear, objective set of boundaries established between individuals with respect to all things in which they have an interest.  Without such boundaries, there is not an objective way to identify transgression in all cases.

            No such set of boundaries exists.

          • JCLester

            “Not really interested in examples.”

            Not really interested in offering one concrete counter example to a universal theory? Or not really capable?

            “An objective determination of aggression and defense would require a clear, objective set of boundaries established between individuals with respect to all things in which they have an interest.  Without such boundaries, there is not an objective way to identify transgression in all cases.”

            “No such set of boundaries exists.”

            Happy to provide them. To the extent that one person proactively imposes upon another in his person and property he is thereby aggressive. To the extent that the aggressed-on person tries to resist such proactive impositions he is thereby defensive. Do you have an example that this does not fit?

          • good_in_theory

            What do I have property in and how do I obtain it?  What counts as proactive imposition?

            I’m not going to give examples, because for any example you will come up with a story about what the property rights could or should  be,  based on your arbitrary intuitions about what people could or should do to establish their property rights, even though such elaboration is not possible ‘from first principles.’

            But there is no objective story about what does or does not count as proactive imposition and what does or does not count as my property, nor could there be, because our interests outstrip our ability to turn them in to property or to rigidly fix what counts as ‘proactive harm’ (as if not being proactive in how one harms is even exculpatory.)

          • JCLester

            >What do I have property in and how do I obtain it?

            If interpersonal liberty is to be observed (I am not in this reply advocating it), you have property in whatever you can possess, by whatever means, without proactively imposing on others.

            > What counts as proactive imposition?

            proactive imposition Any disvalued effect on other *persons and their *legitimate property that someone initiates (i.e., the effect is not a, proportional, reaction to something those others did first) can be said to be a ‘proactive imposition’ on those others. This expression enables us to explain and theorize social or interpersonal *liberty as the ‘absence of proactive impositions’ (and so where clashes are unavoidable it is *libertarian to minimize proactive impositions). It can be useful to view this formulation of liberty in two related ways: 1) the pure pre-propertarian, *state of nature, interpretation, and 2) the rule-of-thumb propertarian interpretation.
            1) Here ‘impositions’ are interpreted only as *costs, meaning the opposite of benefits rather than *opportunity costs. From applying this pure interpretation of liberty in a state-of-nature thought-experiment, we can derive the existence of *self-ownership itself, *initial acquisition and *private property generally, *intellectual property, and *contracts, and also resolve paradoxical or problem cases.
            2) Here ‘impositions’ are interpreted as the flouting of self-ownership, private property and contracts, which therefore presupposes some such derivations as occur in 1, in order to deal with apparently clear property cases rather than start from first principles every time.
            Libertarians usually have a good intuition of what is libertarian in practice and are very able to defend it. But without some explicit libertarian theory of liberty it is hard to do such things as give a clear account of what makes one thing liberty and another thing *license, or to deal with novel or difficult cases in any principled way, or to answer even fairly simple *philosophical questions or *criticisms with any clarity or cogency. So the above theory appears to be an advance on merely assuming that self-ownership and private property are manifestly what constitutes liberty.

            >I’m not going to give examples, because for any example you will come up with a story about what the property rights could or should be,

            False. I offer a theory about what property is if interpersonal liberty is observed. It is a separate issue whether such a state of affairs is desirable.

            > based on your arbitrary intuitions about what people could or should do to establish their property rights,

            False. This theory is not based on anything, nor about what people “could or should do to establish their property rights”. It is a conjecture about the nature of the liberty that libertarianism entails.

            “even though such elaboration is not possible ‘from first principles.’”

            False. It is indeed possible to derive self-ownership and external property from applying the first principle of what interpersonal liberty is in the sense theorized.

            >But there is no objective story about what does or does not count as proactive imposition and what does or does not count as my property, nor could there be

            False. The above account is value-free with clear property implications.

            >because our interests outstrip our ability to turn them in to property or to rigidly fix what counts as ‘proactive harm’ (as if not being proactive in how one harms is even exculpatory.)

            This does not appear relevant—especially “harm”.

  • http://twitter.com/VelizCF CFV

    Although I don’t agree that it is “entirely implausible” to equate (at least some forms of) taxation as forced labor,  I think there is another important difference between “passing laws” and “pointing guns.” Law also fulfills an “expressive function”: http://www.jstor.org/pss/3312647
    That observation can be relevant here, because this “expressive” or “symbolic” meaning of the Law could be counterproductive in some other cases, but  I believe it is arguably not the case in drowning children examples, since most people are sufficiently motivated anyway – that is, they are “Good Samaritans” independently of the threat of coercion –  to help (avoid) drowning children.

    • 3cantuna

      The acts of tax collection are incumbent on employers. This is forced labor.

      • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

        Yes, there is an unholy relationship between the IRS and employers. 

        An employee can’t claim that his/her wages are property (and not income) without also putting the employer on notice that the employer is potentially liable for discrimination if the employer continues to withhold after the claim is made. 

        Employers are not allowed to discriminate against employees who claim a valid Constitutional right, but I’m not talking about frivolous income tax arguments:  http://www.irs.gov/taxpros/article/0,,id=159853,00.html

        • 3cantuna

          Just to be clearer, Rick. I mean firstly that an employer is doing uncompensated labor for the state while collecting and processing taxes for the state. This may not be slavery, but an implication that the state owns people and their labor to some extent; a form of involuntary servitude is at play.  Agree?

          • http://www.facebook.com/people/Rick-DiMare/100000504645309 Rick DiMare

            Great point. You’re discussing what initiated the great debate over income taxes in the 1895 Pollock case. 

            Although the Pollock case was about whether a tax on rental income was a direct tax on landlords, the real issue was whether former slaveholders could be taxed, commandeered, and/or regulated by the state simply for continuing to employ former slaves. In other words, does the state have jurisdiction over someone simply because s/he controls the labor of another human being?

            At the time, the Supreme Court in effect said “not sure” and struck down an 1894 income tax, which means that between 1895 and ratification of the 16th Amendment in 1913, taxes on income derived from property sources (land, labor or capital), which I often call IDPS for short, were unconstitutional and the state could not get employers to help them collect taxes, or tax employers for their paid-out wages. (However, the Constitutionality of taxes on “income derived from non-property sources” (IDNPS) have never been in doubt in the U.S. and don’t need support from the 16th Amendment, though that’s a subject for another day.)

            So, to cut to the chase, yes today the employer is being “commandeered” to collect taxes for the state, but no this does not mean “the state owns owns people and their labor.” The state has every right to tax and/or regulate employers

            The tax that causes you to think that the state “owns people and their labor” is a completely different income tax (and avoidable by the way), a tax on IDNPS that we’ll save for another day.  

  • Hume22

    I just remembered this passage from a BHL’er:

    “We might think of the ballot as the symbol of democracy.  But a more appropriate symbol would be a ballot attached to a gun.”  Jason Brennan, The Ethics of Voting 119 (2011).

  • http://www.facebook.com/people/Rod-Engelsman/822499328 Rod Engelsman

    So what is the moral difference between a rule imposed by a private landowner vs. a state? If we lived in an An-Cap paradise and the roads were privately owned and operated, wouldn’t there still be rules (laws)? And if, as the private operator, we wanted those rules to be followed, wouldn’t those rules need to be enforced, eventually to the point of a (privately operated) gun?

    Am I somehow less dead or injured by being shot by a rent-a-cop than a real one?

    • 3cantuna

      These questions are spot on. To me it comes down to investing in concepts that foster competitive property, borrowing Steve Horwitz phrase, as opposed to non-market monopolies. It is true that a giant private landowner, like a King, may have property rights that rule out competition.  The Monarchy and its holdings cannot peaceably be challenged and is seen by the general populace as legitimized in perpetuity.  Same with the modern state, like the USA. Sure, particular offices within the state may be bid on, bought/sold politically anyway. But it is considered illegitimate to want to dissolve the USA altogether.  What happens when the general populace no longer invests in this kind of monopoly and prefers market competition over status granting arrangements- like king or state?  Notice that a key point is what is in the general populace’s mind.  What will an independent road baron, self-identified, be able to force on travelers when these travelers and potential travelers will not respect attempts at statism and caste creation?  What happens to slavery when confronted by more market based wage labor? 

      It does seem that BHLs, minus profs Chartier and Long, want to rationalize the state as means. The pro-state contingent wants to downplay the inherent caste creating structure of the state. After all, coercion backs any law by anybody, right?  Why not concentrate on the quality of law rather than how it is made?  Besides, law is no good if it can’t be backed-up by guns. And the state is the only structure capable of producing enough threat in a just way, yada yada yada. It just so happens that supporters of the state on this blog all support some particular welfare agenda and it maybe they fall victim to their own self-righteousness. “I can use the state to fix X, because I am right.” 

      The modern state, says Franz Oppenheimer, Albert J. Nock, Murray Rothbard, has come about through conquer and is driven by the desire to exploit the conquered for the benefit of the minority conquering class. Are there any historical exceptions?  Even so, is it possible to form a state voluntarily? Would this last point matter when the state is, as a means, always exploitative? 

  • http://www.facebook.com/people/John-T-Kennedy/1044231338 John T. Kennedy

    “You can stop, or (assuming you are being watched) you can pay a fine. Or, if you don’t want to pay the fine…”

    But of course I would not even consider jumping through any of these hoops if not for the perfectly real threat of deadly force. Remove just that threat and what happens? Nobody jumps though even the first legal hoop: Nobody pays the fines. Nobody appeals in court. Nobody’s wages are garnished and nobody shows up for jail. Coincidence? No, people are really only complying with such laws because of the threat of deadly force.

    • Damien S.

      Just like their compliance with your claims to private property.

      Libertarian property, backed up by the barrels of a gun and threats of deadly force.

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  • G Booker

    Interesting article. I discuss many of the issues raised by Matt, including disussions of Hart,  Morris, Hayek and many others in my COERCION, AUTHORITY, AND  DEMOCRACY [PhD Thesis, University of Waterloo, 2009] 

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