Among those who promote liberty, it is a fundamental principle that the proper role of government is to “secure the rights and freedoms of individual citizens.” Further, government can only perform those functions delegated to it by “the people”. Since the people have the inherent authority to defend themselves and retaliate against wrong-doers, they are able to delegate that authority to others. The people do not have the authority to take the honestly acquired property of one person or group of people, without their consent, and give it to others. Thus, the people’s government cannot possess such authority. This is the great fallacious foundation of socialism and communism, and every other form of statism and collectivism. Under this principle, it must be asked if the institution known as “the state” operates under the proper role of government. I seek to answer that question in this brief essay.
The State
We must first consider what exactly the state is. Murray Rothbard, in his definitive essay on the anatomy of the state, first explains, using Franz Oppenheimer, the two different ways that Man acquires property. These are the “economic means” and the “political means.” The economic means involve production and exchange, whereas the political means involve using force and violence to seize the property of others. Understanding this, Oppenheimer defines the state as the “organization of the political means.” Rothbard adds, “it is the systematization of the predatory process over a given territory.”
There are two types of force Man can use against others, “initiatory” and “retaliatory”. Initiatory force is Man initiating an aggressive act against another. Since Man has no inherent or legitimately delegated authority to do such, initiatory force is unjust. Retaliatory force is Man retaliating with an aggressive act against the initiatory, aggressive act of another. This is a just use of force since the one retaliating has been the receiver of unjust aggression. This type of force can be delegated to others, ie. a sheriff and his deputies.
Therefore, we can define the state as that institution “in society which attempts to maintain a monopoly of the use of force and violence in a given territorial area; in particular, it is the only organization in society that obtains its revenue not by voluntary contribution or payment for services rendered but by coercion.” Even if a government did collect revenue voluntarily, holding a “monopoly of the use of force” would make it a state. Explains Ayn Rand, “The difference between private action and governmental action—a difference thoroughly ignored and evaded today—lies in the fact that the government holds a monopoly on the legal use of force.”
The Proper Role of Government
As has been explained, the only proper roles the government can act under are those delegated to it by the people. The people have the authority to retaliate against initial aggressors (assault, theft, vandalism, etc.), so are able to delegate that authority to others. The state claims a monopoly on the use of force in a given territorial area. This means the state only allows itself to retaliate against initial aggressors in the form of arrests, convictions, and punishments. How can the state prevent others from doing this?
The only way the state can prevent others from engaging in retaliation against initial aggressors is to initiate aggression against all would be competitors. The state is then in stark contradiction with itself. Any government that acts in this regard is acting illegitimately. It is initiating aggression by enforcing its monopoly on the use of retaliatory force. This act is unjust, and contrary to the proper role of government.
Allowing Competition
If the state were to allow competition with itself, that is allow some other entity to arrest, try, convict, and punish wrong-doers, it would not only be operating under the proper role of government, but it would no longer be a state. It would be one among possibly many “defense agencies” in a given territory. It would be simply a non-coercive institution in the anarcho-capitalist tradition. Only then would such an organization be legitimate, moral, and just. And only then can it be honestly supported by those who believe in limiting government to its proper role.
Short and to the point. I agree. What role do you see the jury in this context? My understanding is that they block government from being able to enforce punishment where no guilt (regardless of laws being broken) is found, and are a tribune of the people not a department of the government.
I have yet to study the various ways that particular aspect of, at least our government, would be worked out in a stateless society. Of course, any theories are just those, theories, but there isn’t any reason to believe a free society wouldn’t solve this problem. Common law would evolve and there wouldn’t be what we know as “legislation”. Maybe there’s something here to learn from the Nephite judges.
The Constitution provides that the accused be tried by the law and by the voice of the people under the common law both in criminal cases and in civil cases. As John Jay explained a common law jury can judge of the law and of the facts including the motive.
The Book of Mormon uses these exact phrases as the due process for the Nephites.
In the Sparf Case of 1895 the supreme court ruled that the jury could no longer judge of the law thus converting the common law jury into a Roman Civil Law jury or in other words to a government tribunal. As Jefferson explained no one under natural law can be a judge in his own controversy yet after the Sparf Case the government wrote the law and became the judge of the law thus becoming a judge in its own controversy. Of course the accused can not be the judge. So is the judge? Under Constitutional Law a third disinterested party known as the common law jury of your peers. these peers don’t want to live among criminals so if you are guilty beyond reasonable doubt. On the other hand they do not want to live under a despotic government so if the State fails to prove you are guilty they will set you free. The Book Of Mormon government was based upon the Statutes and Judgments of the Law of Moses as were government of the old testament. Of these statues and judgments the Lord said; Thou shalt not add to nor take away.” He said a similar thing of our constitutional government set up on the foundation of those statues and judgments.
“Thou art justified in befriending the law of the land which is Constitutional……anything more or less than this cometh of evil.”
References and quotes can be found in “The Law of Moses: Foundation of the Western World” by D.L. Hatton