Nobody asked but …

I’ve just been listening to a BBC report about the reconciliation of BREXIT to the supposed desires of Northern Ireland, the Republic of Ireland, the EU, and the UK.  Sorry, but I have to say “I told you so.”  The leaving of overcomplicated situations is overly complex.  The software design principle reapplies —  high cohesion, low coupling.

— Kilgore Forelle

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Consent of the Governed, Revisited

What gives some people the right to rule others? At least since John Locke’s time, the most common and seemingly compelling answer has been “the consent of the governed.” When the North American revolutionaries set out to justify their secession from the British Empire, they declared, among other things: “Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.” This sounds good, especially if one doesn’t think about it very hard or very long, but the harder and longer one thinks about it, the more problematic it becomes.

One question after another comes to mind. Must every person consent? If not, how many must, and what options do those who do not consent have? What form must the consent take ― verbal, written, explicit, implicit? If implicit, how is it to be registered? Given that the composition of society is constantly changing, owing to births, deaths, and international migration, how often must the rulers confirm that they retain the consent of the governed? And so on and on. Political legitimacy, it would appear, presents a multitude of difficulties when we move from the realm of theoretical abstraction to that of practical realization.

I raise this question because in regard to the so-called social contract, I have often had occasion to protest that I haven’t even seen the contract, much less been asked to consent to it. A valid contract requires voluntary offer, acceptance, and consideration. I’ve never received an offer from my rulers, so I certainly have not accepted one; and rather than consideration, I have received nothing but contempt from the rulers, who, notwithstanding the absence of any agreement, have indubitably threatened me with grave harm in the event that I fail to comply with their edicts. What monumental effrontery these people exhibit! What gives them the right to rob me and push me around? It certainly is not my desire to be a sheep for them to shear or slaughter as they deem expedient for the attainment of their own ends.

Moreover, when we flesh out the idea of “consent of the governed” in realistic detail, the whole notion quickly becomes utterly preposterous. Just consider how it would work. A would-be ruler approaches you and offers a contract for your approval. Here, says he, is the deal.

I, the party of the first part (“the ruler”), promise:

(1) To stipulate how much of your money you will hand over to me, as well as how, when, and where the transfer will be made. You will have no effective say in the matter, aside from pleading for my mercy, and if you should fail to comply, my agents will punish you with fines, imprisonment, and (in the event of your persistent resistance) death.

(2) To make thousands upon thousands of rules for you to obey without question, again on pain of punishment by my agents. You will have no effective say in determining the content of these rules, which will be so numerous, complex, and in many cases beyond comprehension that no human being could conceivably know about more than a handful of them, much less their specific character, yet if you should fail to comply with any of them, I will feel free to punish you to the extent of a law made my me and my confederates.

(3) To provide for your use, on terms stipulated by me and my agents, so-called public goods and services. Although you may actually place some value on a few of these goods and services, most will have little or no value to you, and some you will find utterly abhorrent, and in no event will you as an individual have any effective say over the goods and services I provide, notwithstanding any economist’s cock-and-bull story to the effect that you “demand” all this stuff and value it at whatever amount of money I choose to expend for its provision.

(4) In the event of a dispute between us, judges beholden to me for their appointment and salaries will decide how to settle the dispute. You can expect to lose in these settlements, if your case is heard at all.

In exchange for the foregoing government “benefits,” you, the party of the second part (“the subject”), promise:

(5) To shut up, make no waves, obey all orders issued by the ruler and his agents, kowtow to them as if they were important, honorable people, and when they say “jump,” ask only “how high?”

Such a deal! Can we really imagine that any sane person would consent to it?

Yet the foregoing description of the true social contract into which individuals are said to have entered is much too abstract to capture the raw realities of being governed. In enumerating the actual details, no one has ever surpassed Pierre-Joseph Proudhon, who wrote:

To be GOVERNED is to be kept in sight, inspected, spied upon, directed, law-driven, numbered, enrolled, indoctrinated, preached at, controlled, estimated, valued, censured, commanded, by creatures who have neither the right, nor the wisdom, nor the virtue to do so. To be GOVERNED is to be at every operation, at every transaction, noted, registered, enrolled, taxed, stamped, measured, numbered, assessed, licensed, authorized, admonished, forbidden, reformed, corrected, punished. It is, under pretext of public utility, and in the name of the general interest, to be placed under contribution, trained, ransomed, exploited, monopolized, extorted, squeezed, mystified, robbed; then, at the slightest resistance, the first word of complaint, to be repressed, fined, despised, harassed, tracked, abused, clubbed, disarmed, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold, betrayed; and, to crown all, mocked, ridiculed, outraged, dishonored. That is government; that is its justice; that is its morality. (P.-J. Proudhon, General Idea of the Revolution in the Nineteenth Century, trans. John Beverley Robinson. London: Freedom Press, 1923, p. 294)

Nowadays, of course, we would have to supplement Proudhon’s admirably precise account by noting that our being governed also entails our being electronically monitored, tracked by orbiting satellites, tased more or less at random, and invaded in our premises by SWAT teams of police, often under the pretext of their overriding our natural right to decide what substances we will ingest, inject, or inhale into what used to be known as “our own bodies.”

So, to return to the question of political legitimacy as determined by the consent of the governed, it appears upon sober reflection that the whole idea is as fanciful as the unicorn. No one in his right mind, save perhaps an incurable masochist, would voluntarily consent to be treated as governments actually treat their subjects.

Nevertheless, very few of us in this country at present are actively engaged in armed rebellion against our rulers. And it is precisely this absence of outright violent revolt that, strange to say, some commentators take as evidence of our consent to the outrageous manner in which the government treats us. Grudging, prudential acquiescence, however, is not the same thing as consent, especially when the people acquiesce, as I do, only in simmering, indignant resignation.

For the record, I can state in complete candor that I do not approve of the manner in which I am being treated by the liars, thieves, and murderers who style themselves the Government of the United States of America or by those who constitute the tyrannical pyramid of state, local, and hybrid governments with which this country is massively infested. My sincere wish is that all of these individuals would, for once in their lives, do the honorable thing. In this regard, I suggest that they resign their positions immediately and seek honest employment.

Addendum on “love it or leave it”: Whenever I write along the foregoing lines, I always receive messages from Neanderthals who, imagining that I “hate America,” demand that I get the hell out of this country and go back to wherever I came from. Such reactions evince not only bad manners, but a fundamental misunderstanding of my grievance.

I most emphatically do not hate America. I was not born in some foreign despotism, but in a domestic one known as Oklahoma, which I understand to be the very heart and soul of this country so far as culture and refinement are concerned. I yield to no one in my affection for the Statue of Liberty, the Rocky Mountains, and the amber waves of grain, not to mention the celebrated jumping frog of Calaveras County. So when I am invited to get out of the country, I feel like someone living in a town taken over by the James Gang who has been told that if he doesn’t like being robbed and bullied by uninvited thugs, he should move to another town. To me, it seems much more fitting that the criminals get out.

Second addendum: The foregoing (along with a few ill-considered sentences that I have now deleted) was first posted by The Beacon blog in June 2010. I stand by it except for the small revisions just mentioned. However, ultimately, in recognition of the zero probability that the U.S. government would ever treat me decently and would almost certainly only demand greater abasement from me over time, I emigrated from the USA in October 2015. I did not go to a free country; no such country exists. But I did escape some of the more menacing and humiliating aspects of life under the U.S. government as well as the state and local tyrannies that hold the American people hostage.

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Lysander Spooner Quote #21

Majorities, as such, afford no guarantees for justice. They are men of the same nature as minorities. They have the same passions for fame, power, and money, as minorities; and are liable and likely to be equally — perhaps more than equally, because more boldly — rapacious, tyrannical and unprincipled, if intrusted with power. There is no more reason, then, why a man should either sustain, or submit to, the rule of the majority, than of a minority.

— Lysander Spooner

We are bound head to toe in the snares of democratic politics.  We have elected a horrendous POTUS with only 1-of-5 votes from the American population.  (I count the entire population because every man, woman, boy, or girl alive in the US today is affected by the current inadequacy of the office and the person of POTUS).

I am certainly not a fan of the Orange POTUS, but please be assured that my estimation of all occupants of the Oval Office is 0-good, 45-bad.  Even estimable occupants, such as Thomas Jefferson, were sorry excuses for governmental administrators.

If one is not a reader of Lysander Spooner, one should be.  Here is a link to electronic versions of most of Spooner’s work.

Now, we should be sure that Spooner is not advocating either majority elections or minority elections.  He is only pointing out the abject failure of such an innumerate idea.  Majority rule was a byproduct of democracy as founded by Cleisthenes in Athens.  Vote-counting on up-or-down issues was a pragmatic tool for crystalizing decision-making.  It was ingenious, as a method for converting indecision to a binary determinant.  Any question that could be couched so as to be answerable with a “yes” or a “no” could be converted to a unary action.  But this was on a very small scale, and those who did the voting were directly interested in the outcome.  They also had the ability to change a vote, restate the matter under consideration, argue a position, explain a position, and a practically unlimited scope of considerations.  This idea, however, is not scaleable.  Today, we often claim that we have a democratic system here in America, but technically we are a republic, where representation replaces direct accountability for the running of a community.  With 300 million people, we cannot give each interested party a vote.  I suspect that Spooner would advise us to scale back to something we could handle.  That would be my recommendation, humbly, as well.  If one bites off more than one can chew, handle it!  Make the next bite right-sized.

Individual A must deal with Individual B — there is no practical means for A interacting with B when it can only be done through Individual C.  The first failing point is that either Individual C would have to declare herself superior to A and B, to make anything stick, or C would have to be empowered by Entity D to rule over A and B.  Any working arrangement that involves more than two individuals has too many moving parts, too many points of friction, too many points of failure.

For a 3-way relationship to work, unit C must be totally indifferent to the outcomes of matters between A and B.  Yet C must devote its very existence to the watching of A and B.  What could go wrong?  One has to wonder how C could be bound to the oversight of A and B, if C had no interest in the doings of A and/or B.  What if it is not beneficial to C to make a decision that is acceptable to A and B.  Shall C be indifferent?  Worse yet, what if other relations of C, say E and F and so forth had their very lives dependent on C making a decision that would make A and/or B very unhappy?

I have taken a great deal of interest lately in international practices of partition or inclusion.  A very hot case right now would be where there is sentiment in Catalonia, a province of Spain, to secede from Spain, to become an independent sovereign.  My sympathies go with Catalonia, as they would with any other secession that is initiated within the territory of the would-be seceder.  But then, I run into the problem of how exactly is determined the true inclination of the territory?  If there is a vote initiative, what percentage of the voters would indicate a fair consensus for or against secession?  Would a simple majority of registered voters do the trick?  I say no, since voter registration laws always work to the reduction of the population who are even qualified to express an opinion.  Therefore a majority of registered voters is not automatically a majority of the whole population.

To solve that problem, might we (and who is “we?”) require a super majority like 60% or two-thirds of the voter base, or a majority, greater than half, of the population?  Then, what of the people in the minority?  Is there any justification for changing the statehood status for a whole block of people based on an arbitrary part of the whole?

To take a current example, I am assured in saying that there is some remnant of Northern Ireland who are vitally interested in staying loyal to the British Crown, just as certainly as there is a block who wish to become loyal to the Republic of Ireland.  This should not be to exclude those who would opt for independence of Ulster.

In the British Isles, there have been two recent plebescites that have left many unhappy excluded people in their wake.  Scotland narrowly decided to stay in the Commonwealth, disappointing the slightly smaller contingent who wanted separation.  Then the UK voted in BREXIT to leave the European Union (EU).  Since we know that vote was very close, we know that either way there is no method for figuring out how a true majority of the total population would have chosen.  We do know that BREXIT may have been viewed differently in Northern Ireland, where perhaps a majority wished to remain in the same politico/market basket with the rest of the Irish Island.

Another problem in Catalonia was that the people there were contemplating secession in a relatively peaceful manner, demonstrating and voting.  But then Spain, in the embodiment of central government from Madrid, tried to prevent a peaceful vote by intervention, ousting officials and usurping police powers.  Spain went so far as to close down polling places by force, as I understand it.  Let me state another principle here.  The retention of a former state or the formation of a new state should not be as a result of intervention from beyond the territory in question.

While we see that the Catalonia story is hanging from coercive, authoritarian, statist action, we know that in other parts of the world self-determination is being forestalled or advanced through military action, plainly, warfare, such as invasion, bombing, embargo, and sanctions.  Whichever contingent is pursuing territory by violence  is in the wrong.  But two wrongs don’t make a right.  Partitioning by third parties — as in the Iraq coalition thinking about dividing Iraq into Kurdistan, Sunnistan, and Shi’istan  — has little chance of being satisfactory.  One need look no further than Pakistan, India, and Bangladesh — an unsettlement created as a parting shot by the British as they were escorted from the Indian subcontinent.

I am not sure what is the right course, going forward, but I am a strong proponent of Spooner’s sentiment that subjugation of any territory by any statist construct is wholly objectionable — to the extent that such should be resisted to the nth-degree, with one’s last dying breath.  There are no cases in this world where a corralled peopled were better off than if they had not been corralled.  It would be much simpler if we had established principles of non-imperialism two centuries ago.

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Secession / Unification

Nobody asked but …

I know how I feel relative to the problem in Catalonia.  I favor Catalonian Independence. But it makes me really examine how I feel about separatist situations in general.

I look first at the situation with the province of Ulster in Ireland, a province that was broken out and retained by the British Crown when the Irish had finally impressed upon them the idea that they wished to be free. In the case with Ulster, it was that an interloper in Ireland had cordoned off a section of the country that they wished to keep as extortion for the freedom of the rest of the country. I feel Ulster should be rejoined to Ireland — then if they want to be separate from Dublin, so be it.

In Catalonia it is a case where ancient territorialism is coming into play. I am in favor of the separatists just as I am in favor of any other province of Spain breaking apart from the statist whole. I was in favor of the efforts in Scotland to separate from Great Britain. I am in favor of any fictionalized territorial group deciding to break free from their historical masters.

In this country, I generally favor secession of any state that wants to do it. For instance, right now I’m kind of pulling for California to secede, not because I have any sympathy for Californians, but because I am curious to see whether it will work.  In principle, I support any action that is generated from within the territory by the people themselves, in other words, self-determination. I am suspect of any action that is generated by outsiders.  This leaves the not inconsiderable problem of how decisions get made (as in referenda, or voting events of any stripe, or street movements).  Stay tuned.

— Kilgore Forelle

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Is Secession by Referendum Libertarian?

I have concerns about secession by referendum. Individual secession, of course, is no problem; that’s simply libertarianism. Before I get into my reasons, let me stipulate that smaller political jurisdictions are on net preferable to larger ones if for no other reason than the lower cost of exit. That in itself may constrain government impositions. Competition is good, and a race to reduce oppression would obviously be laudable by libertarian standards. But governments of any kind may find ways to collude with one another to minimize the effects of competition. Governments today cooperate with one another to catch tax evaders.

Let me also put on the record my conviction that nation-states have no right to use force to stop any component from seceding. They have no legitimate claim on anyone’s allegiance.

However, let’s not forget that smaller, more local governments can be oppressive too, possibly more so than larger centralized ones. Many things factor into this. At any rate, Little Nationalism can be as destructive of human flourishing as Big Nationalism.

My concerns about group (not individual) secession are over the process of peaceful separation, namely, the referendum. Libertarians have long criticized political democracy — that is, the settling of “public” matters by majority vote either directly or through so-called representatives — as inherently violative of individual rights. By what authority does a majority lord it over a minority?

Well, doesn’t this critique apply to referenda on secession? The chance of unanimity is tiny in any particular case, so why should the individuals who constitute a numerical minority be forced to dissociate from a nation-state and be subjugated by a new nation-state simply because the majority decreed it? A dissenting minority might not be concentrated in one area that could easily secede from the newly seceded territory and remain with the original country or form its own country. What then?

True, dissenting individuals would presumably be free to relocate, but why should people have to abandon their homes because of a majority’s preference? That hardly seems fair. It sounds like “love it or leave it.”

In the recent referendum in Catalonia, over 177,000 people, nearly 8 percent of the 43 percent of registered voters who cast ballots, voted against secession. A lot of people don’t want to split from Spain. Of course, this does not justify the central government’s violent interference with the referendum or the separation. There’s is nothing sacred about today’s nation-states, which were all built from conquest, myth, and historical contingency. But the rights of the members of a minority in a secessionist community still ought not to be ignored by advocates of individual liberty. Too often libertarian defenders of particular acts of secession talk as if the population unanimously favored the spit. Individualists shouldn’t overlook individuals.

The case of the Southern secession from the United States is even clearer than the one in Catalonia. No public referendum was held. Instead, so-called representatives did the voting. But even if a public referendum had been held, slaves would not have been allowed to vote — and they were the reason for the secession in the first place (at least in the lower South). Again, this doesn’t justify Lincoln’s war, but it certainly cast a shadow over secession as a libertarian act.

Some of the best criticism of democratic decision-making came from the legal scholar Bruno Leoni, whose collection of papers, Freedom and the Law (expanded third edition), deserves more attention than it gets. In the final chapter of the expanded edition (but not in the original), “Voting versus the Market,” Leoni dissected majority rule in a coercive state context. (I discuss Leoni’s analysis in “The Crazy Arithmetic of Voting.”)

Leoni took issue with Anthony Downs’s famous description of majority rule, in which Downs wrote,

The basic arguments in favor of simple majority rule rest upon the premise that every voter should have equal weight with every other voter. Hence, if disagreement occurs but action cannot be postponed until unanimity is reached, it is better for more voters to tell fewer what to do than vice versa. The only practical arrangement to accomplish this is simple majority rule. Any rule requiring more than a simple majority for a passage of an act allows a minority to prevent action by the majority thus giving the vote of each member of the minority more weight than the vote of each member of the majority.

To which Leoni responded:

This argument seems to be the same as saying that we must give a one dollar bill to everybody in order to give each one the same purchasing power. But when we consider the analogy at closer quarters, we realize that in assuming that 51 voters out of 100 are “politically” equal to 100 voters, and that the remaining 49 (contrary) voters are “politically” equal to zero (which is exactly what happens when a group decision is made according to majority rule) we give much more “weight” to each voter ranking on the side of the winning 51 than to each voter ranking on the side of the losing 49. It would be more appropriate to compare this situation with that resulting in the market if 51 people having one dollar each combine in buying a gadget which costs 51 dollars, while another 49 people with 1 dollar each have to do without it because there is only one gadget for sale….

The fact that we cannot possibly foresee who will belong to the majority does not change the picture much.

In other words, in a representative or direct democracy, 50 percent plus one equals 100 percent and 50 percent minus one equals zero.

Does this mean we libertarians have no remedy for people who wish not to live under the central government of a large nation-state? Of course we have: anarchism, in which each individual is sovereign and free to contract with market firms for security and dispute resolution. I realize anarchism isn’t on the menu today, but there’s an idea that may be more acceptable to people: panarchism. Roderick Long explains:

The concept of panarchy comes from an 1860 work of that title by the Belgian botanist and political economist Paul Émile de Puydt (1810-1891). The essence of his panarchist proposal is that people should be free to choose the political regime under which they will live without having to relocate to a different territory.

Under panarchism, individuals could in effect secede, but their next-door neighbors need not. Problem solved! This may not satisfy nationalists big and small, but it would protect individuals.

Long notes that advocates of panarchism have had differences over details but adds, “I would resist calling the panarchist’s political regimes ‘states’; and I have no problem regarding panarchism, at least in its modern form, as a species of anarchism.” But we need not settle this now.

The editors of a recent anthology,  Panarchy: Political Theories of Non-Territorial States, to which Long contributed a chapter, describe the term as “a normative political meta-theory that advocates non-territorial states founded on actual social contracts that are explicitly negotiated and signed between states and their prospective citizens.”

“This characterisation, with its call for explicitly signed contracts,” Long comments, “is a somewhat narrower use of the term than is common in contemporary anarchist circles, or at least those in which I move. John Zube, who has done more than anyone to popularise the concept, defines it a bit less rigidly as the ‘realization of as many different and autonomous communities as are wanted by volunteers for themselves, all non-territorially coexisting … yet separated from each other by personal laws, administrations and jurisdictions….’”

It sounds like a recipe for peace and social cooperation.

No doubt people will say that overlapping non-territorial governments couldn’t possibly work. But an editor of the anthology, Aviezer Tucker, writes that “there have been many historically functioning models of mixed, overlapping, and extra-territorial … jurisdictions.”

I have not taken leave of my senses. I realize that panarchism is not on today’s agenda. But it will never be on it if we never talk about it. With secession and conflict in the news, what could be a better time?

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Voluntary Law and Order

People are not all the same, and they make different choices because they have different values, circumstances, and levels of understanding. Sometimes those choices are peaceful and wise; sometimes they are not.

So what are the best ways to promote good choices and cooperation while preventing and providing resolution for conflict?

In answering such questions, it is important to recognize that there are unavoidable limitations. The idea of a perfect society where there is no conflict and all outcomes are equal is an absurd utopian fantasy, and so is the idea of a deus ex machina that can magically swoop in to make everything right. Imperfect knowledge and ability, conflicting interests, transaction costs, and other collective action problems will always be barriers to a perfectly peaceful and productive society.

In economic terms, there are markets for law and order just like there are markets for food and clothing. They are composed of scarce goods whose supply is in demand and which must be allocated among competing uses. Economic analysis of governance mechanisms offers tremendous insights, not least of all because it accounts for the crucial impact of incentives and constraints on human behavior.

History and reason show that private governance does an excellent job of protecting property rights and facilitating peaceful exchange. They also show that government interference distorts and obstructs justice.

Principles of Justice

Justice is the preservation and restoration of rights under natural law, and is required for peace and harmony in society. Justice is also the foundation upon which mercy and charity must be built. Victims may choose to grant mercy to violators to appease the demands of justice, but denying justice to victims leads to perpetual conflict and misery.

True justice is based on protection and restitution, not revenge. Two wrongs can’t make a right. Retaliation tends to escalate conflict and waste resources, often at the expense of victims. Restitution compensates victims, eliminates desires for revenge, and provides contrite offenders with a path to redemption.

Violations of natural law are always violations of property rights. This is obvious with typical property crimes like theft, but even your life and liberty are based on self-ownership. This underscores the importance of clear property rights because without them, there is no basis for victimhood or restitution. No property, no victim. No victim, no violation.

Rights violations in a free society would be treated as torts. Many offenses currently considered “crimes” would still be illegal, but compulsory puritanism would be unlikely. Proponents of victimless crime laws (e.g. laws against drug use or prostitution) are rarely willing to bear the costs of enforcing them.

Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another. Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.
Lysander Spooner

Read the entire essay at LivingVoluntary.com.

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