The State: Required, Prohibited or Permitted?

A common dispute among libertarians concerns whether justice requires the nation-state or whether justice prohibits it. Minimal-state libertarians (minarchists) argue that justice generally requires a nation-state in order to ensure the provision of minimal services like defense, etc., whereas market anarchist libertarians typically argue that the state is prohibited by justice because it unjustly claims a monopoly right of provision for at least some significant set of goods and services.

Now, minarchists rarely deny that a market anarchist order could never be justified. Further, while many market anarchists think that states are always morally impermissible, they acknowledge the conceptual possibility that a community of people could actually consent to nation-state arrangements. So bear these qualifications in mind.

Given this, here is my question: Why don’t more libertarians hold that the nation-state is permitted but not required by justice? On this view (quick: someone make up the relevant prefix for “archy”), states are generally just but so are anarchic arrangements. That is, either limited nation-states or market anarchist political orders could prove morally legitimate.

To my knowledge, libertarians rarely explore this area of conceptual space. Why is this?

Well, the view may initially seem contradictory. How could justice fail to require one arrangement or the other? Isn’t justice a matter of what we most owe one another? So how could justice permit two conflicting arrangements?

I’m not moved by this worry – justice is a lofty and indeterminate ideal and so probably is multiply realizable in different institutional forms. That is, unless you define justice in terms of a strict interpretation of the non-aggression principle, in which case market anarchism probably is entailed by justice. But the non-aggression principle rests on the self-ownership principle that most moral philosopher libertarians reject as a foundation for libertarianism.

If I had to guess, I would say that the autarchist view remains unexplored due the structure of popular libertarian political theory. On familiar utilitarian views, we owe one another the best institutional arrangements we can bring about, and a description of “the best” seems to prima facie require one arrangement or the other (assuming the content of utility can rank order the two types of arrangement).

On familiar self-ownership deontological views, the justice of the state comes down to a determine debate about whether the state can arise in a way that doesn’t violate individual rights, refrains on the old NozickRothbard debates. Roughly speaking, these debates have two sides – those who follow Nozick in thinking that states will almost always arise under anarchic conditions such that states are typically the best expressions of justice, and those who follow Rothbard in thinking that states can never arise without violating principles of self-ownership/non-aggresion.

But even these theories are flexible. You might think that maximizing utility sometimes requires abolishing states and sometimes requires constructing them. Similarly, you might think that states will arise without violating rights under some common conditions but not other common conditions.

So I am left a bit puzzled. Why has this position remained relatively unexplored?

  • they acknowledge the conceptual possibility that a community of people could actually consent to nation-state arrangements

    I don’t. If it’s one-time consent, it’s an attempt to transfer inalienable rights, and so invalid. If it’s sustained consent, the result is not a state.

    • Wait, why isn’t it a state if it has sustained consent?

      • I’ll give this a try: A state is defined by a monopoly on legitimate use of violence, often to enforce particular norms of behavior among its citizens. If a subject could declare their independence from the state simply by withdrawing consent, the state wouldn’t be able to punish lawbreakers because they would simply declare themselves not subject to its laws. I think there are a few ways out of this line of thinking, but they have their own flaws. You could interpret withdrawing consent as self-banishment, for example, in which case the state wouldn’t have to punish former subjects any further. This would require closed borders, though, which themselves seem coercive and objectionable. Or you could view state violence against its former subjects as somehow legitimate. In either of these cases, the state is exercising its power over people who do not consent to it, it’s just no longer regarding them as its citizens. And if all we’re demanding is someone’s sustained consent, a monarchy would count as such a state, albeit with only one citizen.

      • For the same reason that someone who you hire, and can fire at any time, isn’t your boss.*

        * Even if, say, you hire her as a personal manager or coach, and her job is to tell you what to do from day to day, and even if (as a matter of fact it turns out that) you consistently do whatever she tells you to do.

        A political arrangement that nobody can be forced to participate in, which any individual, as an individual, can withdraw from at will and without lasting obligation, may be desirable or undesirable, depending on the breaks, but it just doesn’t count as successfully claiming the kind of sovereignty over individuals, or imposing the kind of enforceable positive obligations on them, that rights-based anarchist arguments objects to when they object to states as necessarily rights-violating.

        Now, you could of course say something like, “Well, but if everyone agrees to participate, as long as they agree, that is at least a territorial monopoly on the authorization of force, isn’t it?” But the distinction between de facto monopolies and de jure monopolies is important to bear in mind here. Most anarchist arguments pushing a conclusion to the effect that government necessarily practice an illegitimate or unjust form of domination (e.g. Roy Childs’s argument, or Murray Rothbard’s, or Spooner’s various later arguments) are specifically concerned with, and arguing against governments not just as de facto, but as de jure monopolies on the authorization of force.**

        And you might want to challenge the claim that sovereignty over individuals, or enforceable duties of obedience, or de jure monopolies on the authorization of force (call these “ruling,” perhaps, for short), really are essential features of the state as such; or whether you could instead have a hypothetical at-will arrangement without these features that might still, in virtue of other features, count as an actual, full-bodied state, even if it only operates by universal, sustained consent. But I’d need to hear some argument in order to be convinced that it could count as such, and I’d need to hear something about what features are supposed to be essential features of states, if it’s not the sovereignty or the obedience or the de jure monopoly; otherwise, my view is that no matter what forms you adopt, if it stays safe, sane and consensual, then it’s not really ruling; at most it is some pretty elaborate role-playing.*** And if there’s no ruling going on, that’s a pretty strong reason to say that there is nothing you could call a state.

        ** Of course there may be other reasons why a de facto monopoly would be undesirable, or wouldn’t be a stable equilibrium under conditions of equal freedom, or whatever.

        *** There may of course be other reasons to object to it. Maybe you’re just not into that kind of thing.

        • I was imagining an intermediate arrangement, where you let the monopolist have just enough authority to hold you for a year or more – so that you can’t withdraw your consent at *any* time – but that is still regularly renewable. Its the political equivalent of a cell phone contract. In that case it seems like we have a state (it really can exclude competitors and within limits interpret its own law), even if only for small time slices, that is based on “sustained” consent but that doesn’t seem to obviously violate market anarchist strictures. Or does it?

          And if that’s not a state, does it matter? My point in the post can be modified to say that market anarchists are willing to countenance the conceptual possibility that something-everyone-else-would-call-a-state can be legitimate.

          • Kevin:

            Well, that’s an interesting possibility, but if it’s one-time consent that’s enforced over yourself at a future time, even if within a fixed period, that seems like it comes under Roderick’s first horn (“an attempt to transfer inalienable rights, and so invalid”). Of course what you think of the nested inference within that horn depends on what you think about inalienability, and there are forms of “market anarchist strictures” that don’t depend on an inalienability claim.

            I don’t want to spend too much more time on the definitional issue here, but (1) I am inclined to doubt that what you describe here counts as a state, all things considered (again because of the radical departures this involves from ordinary views about state sovereignty, territoriality, obligation, etc.); (2) I’m not as sure as you are that everyone looking at it would obviously call it a state (except in the sense that many people seem initially inclined to describe literally any form of institutionalized decision-making or social dispute-resolution a “state,” which is I think a confused intuition that anarchists already have to deal with in another form, and which people tend to give up under examination); but (3) it doesn’t matter much, because what you describe is objectionable for the same reason that states are objectionable.

            I don’t think that any of this affects the central question of your post; while I reject the claim that states are permissible but not mandatory, my rejection of it depends on some strong ethical commitments that a lot of anarchists don’t necessarily share (e.g. to inalienable rights and to a conception of rights as side-constraints on worthwhile ends); and I agree that that’s an interesting location in conceptual space that ought to be better mapped out.

            (Another thing I’d like to see mapped out here are some of the modalities. For example, almost all anarchists seem to be of the view that there is nothing that could possibly count as a state that exercises legitimate authority over individuals, under any condition. And this is in fact my view — call it “hard anarchism.” And all minarchists seem to be of the view not only that there is something that could count as exercising legitimate authority over individuals, but that there is in fact actually at least one state in the world which does so — call this “practical archism.” But that seems like a tendentious empirical claim, which has no necessary connection with the standards for legitimate authority that most minarchists propose; if meeting some set of standards would qualify a state as legitimate, that’s no guarantee that any actual state is going to meet them and so qualify. So it seems like there ought to be a third possible view left between hard anarchism and practical archism. You might be a “soft anarchist” — you might hold the view that it’s perfectly possible for there to be a state that exercises legitimate authority under the right conditions; but in fact there is actually no such state that does, so therefore, at least for the time being, there are no legitimate states in @, although there may be in other possible worlds, and there might be in the actual past or the future. A “soft anarchist” view presumably requires the claim that states are morally permissible. And it’s compatible with the claim that they are not mandatory. But it may even be compatible with the claim that they are mandatory — if failing to have a state is morally impermissible for some reason, but all the available states do something else which is morally impermissible for other reasons, etc. etc.)

            In both cases, I agree that the lack of discussion seems to indicate that there is something puzzling going on. Although I guess not necessarily unpredictable or surprising. My best guess is that these parts of the conceptual map tend to go unexplored because at a fundamental level many or most people still tend to line up in debates about the State in ways that seem to be driven as much by rationalizing loyalty to, or rejection of, actually existing politically dominant authorities, as by an effort to defend a philosophical claim against all logically possible alternatives. Which I think is too bad, and has constrained the debate.

    • If it was a small, local “state” that indeed had sustained consent, could it be valid? Or do you think that could never happen?

  • Sean II


  • good_in_theory

    What is this state that is in theory arising or not arising? How do I tell whether or not we have a state?

  • Let me see if I can express this properly: my reaction is that the idea of the state – that a group can claim monopoly on ‘just’ use of force within a certain geographic area – is a big enough deal that it seems strange that anyone would simply permit the idea if they didn’t think it was necessary for achieving justice.If we believe the state is superfluous in the way we’d have to to simply PERMIT it to exist, why WOULD we permit it to exist? If we don’t think that there is some positive benefit to a group of people claiming a monopoly on the right to ‘justly’ use force within a given territory, why would we even permit any group to reserve such power to themselves? It seems a rather large concession if we really think that such concession is not necessary.

    I really hope I explained that well. I suppose I am trying to get at a presumption of anarchism whereby if it can’t be shown that a state is necessary to preserve justice, I don’t see any reason to ‘permit’ a state to exist as a (rather large) superfluity.

    • This is a good point, and perhaps connected with the very long tradition of liberal thought on the state which has tended to see it as a “necessary evil,” justified only by, and to the extent that it improves on, the inconveniencies of the state of nature. If it turns out that it is not necessary to flourishing social order after all, then it is by that line of thought just an evil, and therefore not permissible.

  • Fritz

    “To my knowledge, libertarians rarely explore this area of conceptual space. Why is this?”
    My guess is that there’s no point in “exploring” a conceptual space. The state *is*, and no amount of libertarian theorizing will make it go away.

    • No point for you, or no point you can see, maybe. But philosophers (libertarian or otherwise) do have reasons to try to theorize, and to analyze concepts, and to try to get clear on arguments, other than whatever short-term political gains they think that they might be able to get out of it.

  • djw

    I’m not a libertarian at all, but “permitted” seems obviously right, at least at fairly high levels of abstraction. If an alternative arrangement could be shown to better achieve the demands of justice, it would be absurd. Now, at lower levels of abstraction, the state looks required by justice to me, but that’s a contingent view, revisable as new information or changing circumstances warrants.

    I am reminded of your colleague Jacob Levy’s argument against political a teleology of political forms.

    • djw

      strike first ‘political’ from last sentence

    • djw

      aaand second sentence needs more words: “it would be absurd to insist otherwise.”

      And to think I spent all morning copy-editing.

  • Because it’s not about finding a solution, it’s about justifying one’s dogma.

    Sorry, that was a bit cynical.

    Wait, i’m not sorry.

    • greg byshenk

      Slightly less cynically, it seems to me that those attracted to either form of libertarianism are those who wish to derive the “correct” form of social organization from first principles. Only ‘required’ or ‘prohibited’ will allow such derivation to the correct form of social organization.

  • Glen

    The assumption in the post, and in some of the comments, seems to be that the “permissible but not required” position requires either (a) some empirical uncertainty about which institutional arrangement is actually best, or (b) some rough equivalence between institutional arrangements, such that it’s a matter of indifference which occurs.

    But I wonder if there’s another possibility: supererogation, which is the notion that something may be morally praiseworthy without being morally required. For instance, an act of self-sacrificing heroism would be considered supererogatory in some philosophies. No element of equivalence or uncertainty need be involved; we could be certain the heroism is better, yet not believe it should be mandatory. So, maybe there’s a plausible argument that the state (or anarchism, depending on your perspective) is supererogatory — something that would be nice to have from a moral/justice standpoint, but that is not required by morality/justice.

    I will leave it to the professional philosophers to sort out whether that makes sense; I’m not sure. I just wanted to throw the concept of supererogation into the mix.

  • David Gross

    I thought the permitted-but-not-required option was more or less the thesis of Anarchy, State & Utopia, and as such has been vigorously discussed in anarchist/libertarian circles.

    • I don’t think so. Since Nozick thinks the state is required to resolve critical disputes about the interpretation of justice, then it is required by justice to a large extent.


        Could you please cite to the pages in ASU where you find this idea?


        Having after two days not received a response to my question, I will more directly express my skepticism about the claim that Nozick ” thinks the state is required to resolve critical disputes about the interpretation of justice, then it is required by justice to a large extent.” In Part I of ASU Nozick does not,attempt to directly justify the state on moral grounds, but rather relies on the idea that it would emerge from the natural monopoly that exists for protective services. He says nothing that I can tell about the need for the state to “resolve critical disputes about justice.” His actual argument was (properly) blasted from across the ideological spectrum. I think that the case for libertarianism presented in Part III (Utopia) is also inconsistent with Kevin’s idea.

  • Undefined_View

    A la cartarchy.

    • James

      I have heard the word “Panarchy” used to label what Kevin describes.

    • I have heard the word “Panarchy” used to label what Kevin describes.

  • Your answer is in this sentence. “justice is a lofty and indeterminate ideal”. I find such arguments to be arcane and circular. Now you might better ask if the minimalist even believes that the anarchist position is achievable. I do not. the very act of trying to set up a set of mutual rules that would allow an anarchic society to function would create a government itself. It is rather like a sub atomic particle, it cannot be observed because the act of observing it changes it.

    • Old OddJobs

      Yes, but is it a political government or not?

  • A related issue: why aren’t libertarians more friendly to first world governments? From a comparative perspective, looking at economic growth, rule of law, happiness, etc. indices, first world countries are much, much better than third world countries. Clearly there is something quite good about first world countries and their governments.

    • “Clearly there is something quite good about first world countries and their governments.”

      One reason may be that the effects of first-world governments have on people are not limited to the effects that they have on people within the borders of “their own” countries. In fact these effects often are dropped on third-world countries from high-altitude bombers or launched from offshore battleships.

      In other cases, first-world governments sell or loan their effects to third-world governments (e.g. in Iraq and Iran, or in Egypt, or in Indonesia, etc.) so that they can do the massacreing themselves, on scales and by methods that they could not possibly have managed but for the assistance from governments that are skimming off a much larger supply of economic growth and high-tech development. This may in fact be one of the reasons worth noting when we ask why bombed-out countries have some of the problems they have with “economic growth, happiness, etc.” Of course there are many other reasons also worth noting, but it seems to me that the fact that the activities of “first-world governments” killed literally hundreds of millions of people over the course of the past century might be worth pausing over.

      It may also be a reason for libertarians not to be “friendly” with the governments that do this, even if the people that they tax within their official borders happen to be enjoying a relatively high standard of living.

  • Agnarchy: Being agnostic about whether or not we need a state.

    Heard Jason Kuznicki coin that one.

  • jth

    policy discussions > political discussions!

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