Why the State Needs a Justification

Obviously, Hume is thinking that the answer to the second question, “Why should we keep our word?” is “because society could not otherwise subsist.” Why not give that answer in the first place?

There is one feature of this argument that I think is a potential distraction. Hume assumes that what has to be justified, if anything does, in order to make the state a just or legitimate institution, is the idea that we owe it obedience. I doubt that this is how Locke frames the problem. In his treatment of the subject, the aspect of the state which seems to get the most attention from him is what one might call the “monopoly of force” aspect: specifically, the fact that the state backs up its edicts with threats of punishment (including, in his account of the matter, the death penalty) and forbids others from doing the same.

Further, aside from any issues involving the interpretation of Locke’s theory, it seems to me that Hume’s assertion, that society could not subsist without obedience to the state, seems rather doubtful in itself. For one thing, during the greatest part of the history and prehistory of the human species, life subsisted without any state at all. Our ancestors got along for many tens of thousands of years in small hunter-gatherer bands based to some extent on the extended family. During that time, they presumably lived together in relative peace by following customary rules of behavior. It is these features of a group of people – that they live together by following shared rules – that I would think make them a society. Society, understood in this way, antedates the state by a long, very long stretch of time. Further, one can doubt that, even in our times, society depends on obedience to the state. Over the years, I have asked undergraduate students whether they think that they have an obligation to obey the law, apart from any fear they might have of being caught and punished. Invariably, an overwhelming majority says that they do not, and a significant number even seem to find the question puzzling. For the most part, people seem to do what the law requires because of either a) the fear of being punished, b) the intrinsic wrongness of the act itself (for instance, stealing your neighbor’s wallet) or c) what might be called the adverse natural consequences of the act itself (for instance, driving on the wrong side of the road). There may be certain advantages in a social system in which people obey state-made law just because it is the law – for instance, the system might thereby save on enforcement costs² – but it is extremely doubtful that society would collapse without such a feature.

However, Hume’s focus on obedience is, as I have suggested, a distraction from the main point. One could probably reformulate his argument in terms of some other feature of the state in a way that would preserve its essentials. It would be prima facie plausible to say, for instance, that society, or at least a certain kind of society, the kind that we want to live in, could not subsist without (some) standing organization that both deliberately manufactures rules and backs them with coercion (which is of course not the same thing as rules that one is somehow obligated to follow even apart from the coercion).

A potentially more serious problem with Hume’s argument (a more serious problem than his apparent misinterpretation of Locke) lies in the fact that he rests his own argument on a debatable assumption. He is saying that if you are to complete Locke’s defense of the state correctly, that is, in Hume’s way, the most distinctively Lockean feature of this defense becomes a pointless extra step, one that actually weakens the case Locke seeks to make. Once we explain why we should keep our promises, we have an explanation that, it should be immediately obvious, also applies directly to the state. The problem with this is that Hume’s way of completing the explanation is not the only way. He is assuming some form of utilitarianism, that the ultimate standard of right and wrong is social benefit. This is clearly not the way that Locke thinks about such matters. In his political philosophy he is a natural law theorist, not a utilitarian.

Nonetheless, Hume is making a point that goes well beyond his quasi-utilitarian assumptions, one that can be appreciated independently of whether we agree with him about the fundamentality of social benefit. Here is one way to look at it (there are probably others just as good, but this one brings out the aspect of the situation that I want to emphasize). Locke is concerned with the grounding of what we might call “the political realm.”³ A “realm” in this sense, is a an array of reasons that people routinely give for either doing or believing things, in which these reasons are (sometimes very loosely) governed by a smaller array of fundamental principles. In this case, the reasons are of course political reasons. Because the king said so or because he is the king are political reasons for doing what the king said to do, or for believing that what the king did was right. Locke wanted to give an account of the circumstances in which these alleged reasons can become genuine reasons, can show that something is right or true. He thought that by doing so we can discover what the fundamental principles of the political realm are. The strategy by which he sought to achieve this end was to ground the realm of the political in the realm of the moral. Because you promised is a moral reason and not a political one. His theory is that the alleged reasons we encounter in the political realm become genuine reasons when we can give good enough moral reasons why they should be accepted. By giving an account of what the relevant moral reasons are, he thought he could establish that the basic principles of the political realm consist of a small number of specific goals (the state is to pursue the general good and protect individual rights) and a tight set of constraints on state action: it must pursue these goals without violating rights.

The sort of theory that Locke is practicing is a very powerful one, in that (supposing we have a right to use it) it yields an abundance of results: namely, ideas, analyses, and principles about the political realm. Hume’s point is to raise a doubt about whether we do have a right to use this method, or one that is anything like it. At bottom, the logical character of Locke’s theory is that of an explanation: it purports to explain why the would-be reasons in the political reals are (sometimes) genuine reasons. Now, we only have a right to accept any particular explanation as long as we have no reason to think that there is a better explanation, one that explains the same phenomena but explains them with a more plausible set of assumptions, or a greater appearance of logical rigor, or explains these phenomena and others in addition to them, and so forth. Regardless of what one thinks of appeals to social utility, the deeper point of Hume’s argument remains: that there might well be a better explanation than Locke’s, better even than the general type of explanation that Locke gives. Hume’s triumphantly italicized declaration, because society could not otherwise subsist, is obviously meant to bring home to us that there is indeed an explanation that is far more plausible than Locke’s because it involves far fewer fanciful assumptions and appeals only to commonly available facts, and at the same time is clearly relevant to the issue at hand, which is: why is it a good idea to have such a thing as the political realm? This bare fact, that Hume can give the sort of argument that he does give, calls into question the need to ground the political in the moral, because it points up the possibility (which is so obvious once we notice it) that there can be other ways of explaining the political realm, aside from explaining it in terms of the moral realm. Why can’t both these realms. the political and the moral, be explained in terms of the socially advantageous? Or indeed in some other sort of reason? In fact, once we come to entertain such possibilities, why not go beyond Hume and consider the possibility that the realm of the political and that of the moral might both be completely autonomous, with their own sort of peculiar logic?

3. The problem of the double standard. Hume’s argument raises at least three questions regarding Locke’s strategy. First, why should we seek to explain the political in terms of some other realm at all? Second, why should we explain the political in terms of the moral? Third, why must we explain it in terms of the particular moral reason that Locke chooses as the foundation of his theory (“because you promised”). I will only concern myself here with the first two issues. Although my own view is that on these two issues Locke was fundamentally right and Hume was fundamentally wrong, I think we can only see why Locke was right by taking at least one step beyond the ideas that his theory contains. Admittedly, Hume is right about one thing: Locke was rather too quick in supposing, without further argument, that the political needs to be explained in terms of some other realm. However, I think we can see the need for such an explanation if we add something to our notion of what the explanandum phenomenon, the thing to be explained, is.

The additional element I have in mind is something that might be called “the double standard.” It is something that is actually quite familiar to us all. Consider what officers of the state are doing when they collect taxes. They are not passing a hat and asking for money. They are telling you to pay, and if you fail to give them the amount they demand, they have various ways, all more or less painful, to make you sorry you did not cooperate. Of course, private citizens sometimes act the same way, but when they do, we call them thieves and insist that the be stopped and punished. When ordinary individuals do it, it is called stealing, but when representatives of the state do what, in a perfectly straightforward way, seems to be the very same thing, it is called taxation. The same sort of thing can be said about what the state is doing when it practices military conscription. Here they are forcing people, in some cases very much against their will, to do work that is not merely unpleasant but may very well be fatal to them. If private individuals do such things, these practices are called abduction, kidnaping or perhaps something worse, and we stop them if we can. When done by representatives of the state, they are treated and spoken of completely differently, even by people who think such policies are unnecessary or ill-advised.

Finally, consider what officers of the state are doing when the try to keep individuals outside or, as it may happen, inside the nation whose state is represented by those particular officers. They are coercively preventing people from crossing an imaginary line on the ground, somewhat in the way you or I might prevent an unwanted guest from entering our homes. But of course the imaginary line on the ground in this case does not represent the boundaries of the officer’s property. Further, even if the line it does happen to coincide with the boundary line of some individual’s property, that individual may have no interest in preventing the coerced person from crossing it. The officer’s right to do this, if it exists, is not based on the sorts of consideration that could give a private individual a right to do something similar. In this case, what the officer is doing is something that private individuals, including criminals, don’t do at all, but the same point can be made here as in the case of taxation and conscription: we do not treat or speak of the officers in anything like the way we would tread private individuals who did the very same thing.

Rather obviously, this process can be repeated in connection with a vast array of government activities. The questions thereby raised are accordingly also multifarious. Why isn’t taxation theft? Why isn’t conscription abduction? Such questions can be multiplied at great length. The problem I am pointing to here is accordingly rather large and amorphous, but there is one conspicuous feature that unites the examples I have given so far. In each case, we have individuals pursuing their goals by using force against others. Two simple facts are sufficient to make these questions real issues. First, according to the moral ideas we apply to our own conduct and that of our fellow human beings, we are not generally permitted to pursue our goals by the use of force. Ordinarily, it makes no difference how morally lofty my purpose is. I may know that you are about to spent the contents of your wallet by going to a movie, whereas I would donate the same amount of money, if I had it, to a highly effective charitable organization, which might actually use it to save a human life. Still, taking the money would be stealing, and for that reason I do not do it. Second, the officers in my examples are individual human beings like you and I. There is no obviously good reason why the standard I apply to myself and my neighbors should not also apply to them. And yet we do seem to apply some completely different standard to them. What, if anything, might justify this? This is what I call this the problem of the double standard.

The problem, to generalize just a bit, is that by the light of moral ideas that we tend to find highly intuitively plausible, it is possible to see judgements we ordinarily make about activities of the state as counter-intuitive. So far, the problem is in a way like the problem of skepticism in epistemology: there is a simple, intuitively appealing argument in Descartes’ Meditations that makes it possible for me to entertain the possibility that I am always dreaming. However, our current problem is much more serious than the problem raised by the dream argument. We know in advance what the outcome of the best analyses of the dream argument will be: you are not dreaming. It is as simple as that. But we cannot say that all the state activities I have described above are perfectly in order as they are. It is not that simple at all. This difference between these two problems is linked to another difference between them. The problem raised by the dream argument is of purely academic interest: there is no pressing practical problem of distinguishing dreaming from waking. On the other hand, there is a practical problem, as pressing as it can be, of deciding which of these state actions, or which forms and permutations of them, are right.

Even those readers who most stubbornly resist the idea that there is something morally problematic about the state are aware that the practices I have described are all, as we might say, morally explosive: when they go wrong they can go very wrong indeed. Americans who support tougher measures to keep Mexicans on one side of the Gadsden Purchase line were offended when the East German government coerced East Germans to stay on one side of the Berlin wall. Defendants at the Nuremberg trials were prosecuted for the crime of using conscript labor – by states that were at that very moment using conscripted military personnel. The idea that these functions of the state are simply legitimate as they are is not likely to strike anyone, on reflection, as very plausible. It would seem to commit one immediately to a particularly ugly sort of moral nihilism.

In that case, where is the solution to my problem likely to lie? Clearly, the most obvious way to avoid underwriting the actions of the state with an amoral blank check would be to find the elements of morality the we find intuitively gripping, and assemble an account that can explain not only why the officers of the state are acting within their rights in doing things that the rest of us may not do, but in addition why they are not acting within their rights when they are not. This answers the second of the three questions I said were raised by Hume’s argument, namely: why must we explain the political in terms of the moral? The answer is that morality is more intuitively gripping than politics is. They do not stand on an equal footing, in the manner suggested by Hume’s argument. Further, the political is by moral standards somewhat counter-intuitive. Part of what it is to understand the political realm, to produce an adequate theory of it (supposing that this can be done) is to resolve this counterintuitiveness. And the most obvious way to do this is to explain the political in terms of the moral. Further, the search for such an explanation is not a merely academic exercise, aiming at understanding as an end in itself, but a practical one which aims at drawing a line between right and wrong.

The idea that the political needs to be explained in terms of the non-political is one of the most distinctive features of the social contract tradition. More exactly, it is the idea that lies behind one feature of this tradition: that it attempts to derive (in some sense of this word) the state from the state of nature. What, after all, is the state of nature? It does not, or at least does not necessarily, represent the “natural” aspect of human life in the sense of being purely animal or pre-social. It is arguable that in Hobbes and Rousseau it does represent the merely animal, or something close to it, but Locke makes it abundantly plain that people in his state of nature live together in (more or less) peace because they regulate their behavior (though with imperfect success) by basic rules that enable them to do so. What the state of nature always represents is of course the pre-political. What I have tried to do here is to exhibit the logic and plausibility of state of nature theory, interpreted as the project of explaining the political by grounding it in another realm.

4. The asymmetry of the moral and the political. Having come this far, I am of course aware many will have failed to follow me for a variety of reasons: either they do not have the intuitions on which I have relied, or they will resist having them or (most interestingly) will have them but refuse to trust them. I will now turn my attention to this last source of resistance.

Of course, someone might say, there is a sense in which our intuitive, pre-theoretical use of our moral ideas clashes with our intuitive, pre-theoretical application of our political ideas. When I think about myself, my next-door neighbor, or my uncle Harry, I think that, whenever any one of us promotes his or her goals by using coercion against someone who is not bothering anybody, we are doing wrong. When I think about a tax collector or an immigration official, I think pre-reflectively that they are right to go after the tax-evader and the Mexican immigrant, even though the tax evader and the Mexican are not bothering anybody. I think of the immigration official as if they were on a different plane from me, from my neighbor, from my uncle Harry. But why isn’t each way of thinking perfectly okay, on its own plane?

In a way, I have already responded to this line of thinking. If we simply accept our pre-theoretical immersion in the political at face value, without tempering it with skepticism, it seems to put the individuals who carry out state policy on a different plane from everyone else. And this seems to lead directly to the blank check problem, which I have already discussed. If the reason they can do what they do is that they are on a different plane from the rest of us, doesn’t that mean that what they do is alright just because they (on this higher plane) are doing it? And wouldn’t this mean they may do what they do, whatever it is? But there is a positive point to this line of thinking that is worth considering: Is there any reason, apart from the blank check problem, to be more skeptical about our political intuitions than about our moral intuitions?

I can give one such reason. It has to do with what I think is the most plausible sort of causal explanation of our intuitions, an explanatory story of their origins. More exactly , it has to do with certain features that such an explanation would have to have. Our ideas of right and wrong, whether political or moral, no doubt evolved over a long period of time, much of which has left no record of itself, so any account of their origins is necessarily speculative. I don’t wish to speculate about them here, but merely to point out that the nature of these ideas implies certain constraints on the possible ways in which they might have come about.

Morality and the state have certain features in common, which enable us to compare them in illuminating ways. Both are features of the social world which serve to regulate individual behavior, and both do so, to a very significant extent, by means of rules of conduct. But there are two enormous and obvious differences between rules by means of which they accomplish this regulatory function, between moral rules and state-made rules. First, moral rules are ones that people think they have reason to follow quite aside from the possibility of being caught and punished for not following them. This is in fact a necessary feature of a morality. It is one implication of any reasonable definition of a morality. Among state-made rules, it is not. Some people believe they have an obligation to follow state-made rules, others do not, and yet they are state-made rules just the same. Further, as I have suggested, such rules do not seem to need the support of such a belief in order to function. Whenever they require people to do things that might go against their current desires, state-made rules are backed by deliberate coercion. The second difference lies in the fact that, in the case of moral rules, there is no one who is in the position of making it true, simply by declaration, that a given idea is a rule in the system.⁴ Moral rules that comprise the moral code of a given group of people – and here it should be remembered that I am talking about what might be called “positive morality,” the source of our pre-theoretical moral impressions – are ones that exist simply because the members of the group (perhaps to different degrees) accept them as binding. Wherever these rules come from, whatever their content might be, they must be ones that everyone can accept as right and binding on them without their being coerced into accepting them. Though the content of these rules can obviously vary widely from one group of people to the next, there are limits to what sorts of rules could exist in this particular way. In fact, if we suppose that people are always influenced by their own self-interest in accepting rules, then it would follow that the rules of a morality are (to the extent that they are so influenced) beneficial to all members of the group.⁵ Indeed, if we consider the sorts of moral rules that seem to exist in all cultures, it seems obvious that they are beneficial to all. All cultures seem to have rules that obligate one to keep one’s promises, that protect property (of some sort), that protect the family (in one or more of the many forms the family can take), and it is obviously in everyone’s interests to have rules that perform these functions.

In order to explain moral rules, and through them the moral intuitions that derive from them, we must create an explanation that shows the rules, and resulting intuitions, to be mutually acceptable to the individuals to whom they apply. If in addition we assume that this process is driven (to some extent) by self-interest, our explanation will predict that the resulting rules and intuitions will be (to that extent) mutually beneficial. As the reader has no doubt noticed, the situation with state-made rules is entirely different. Here self-interest has a completely different sort of significance, leading not to mutual benefit but to exploitation. Because they are coercive and need not be unanimous, these rules can be forced on people contrary to their perceived interests. This is something that others can indeed have an interest in doing. It is possible to have rules that transfer benefit from one person or sub-group to another, where such rules are in place because they do have that feature. We might call such rules “norms of exploitation.”⁶ Further, if we suppose that self-interest drives the formation of these rules to a significant extent, and in addition that peoples’ interests are not (in some relevant sense) perfectly harmonious, then we can predict that systems of state-made rules will include norms of exploitation, unless by some clever device people prevent it from doing so.

The prospect becomes yet more depressing if we make one more assumption, a very plausible one I should think. Suppose that the state has a mystique of authority, such that people have to some degree a tendency to believe that its rules, whatever they might be, are right.⁷ This would mean that the state has a significant tendency to corrupt the human intellect and conscience. People who are being exploited, if they possess this tendency, are apt to think that it is right that they be treated this way. Worse yet, those who are doing the exploiting, to the extent that they have the same tendency, will do so with a clear conscience: they too will believe that their victims deserve no better treatment.

Though I have made a number of unjustified assumptions in what I have said so far (that people are to some extent influenced by self-interest in creating or accepting rules of conduct, that they tend to accept state-make rules as right, and so forth), the point is of course that these are not implausible assumptions. And if they are true, then the ideas that we use in the political realm deserve our irony and skepticism in a way that moral ideas do not.

I am aware, however, that the dichotomous distinction I have drawn between the moral and the political will seem artificial to some. They will want to raise something like the following objection. Clearly, morality too can include norms of exploitation. Racism and patriarchy are (or very, very recently were) part of our own positive morality. Slavery itself was, once, protected by moral norms as well as legal and political ones. The unanimous consent that arises within a hierarchical situation, in which some have power over others, will tend to be of this sort. In such a situation, the unspoken ground of the agreement will often be something like, “Unless you agree that your function is to serve me, I will use my power to make things very unpleasant for you.” Rules that arise in this way will be rules of exploitation. Throughout history, a great many moral rules have been like this.

All of this is true, but it doesn’t constitute an objection to the position I have argued for here. It is true that the moral can be contaminated in this way. The political on the other hand is necessarily characterized by the factors that cause this sort of corruption. The difference between the merely possible and the necessary is a profound one. Further, this objection admits, indeed insists upon, my own main point, which is that coercion – or if you prefer, hierarchy – is corrupting. If hierarchy is corrupting, then what human institution could possibly be more corrupting in its influence than the state?

Another possible objection would rest on a charge of circularity. The idea would be that I have argued for the primacy of the moral over the political on the basis of ideas that are actually moral in nature. What I have said, essentially, is that political ideas have a certain tendency to be unfair, and unfairness is a moral failing. According to moral ideas, moral ideas have more authority than political ideas. It is an argument that morality can’t lose.

My answer to this objection would be that whether an argument is circular depends on what its conclusion is, and this objection mischaracterizes my conclusion. I do not argue to the conclusion that political thinking tends to be unfair or immoral, but that it tends to be distorted thinking. It contains a bias in favor of ideas and principles that license hierarchical relationships, in that it tends to do so without good enough reason. It is a sort of thinking about which skepticism is a perfectly rational response. The objection to it is epistemic and not moral.

5. Evolutionary explanations. I have already commented briefly on the similarity, and more importantly the difference, between the problem of the double standard, as I have called it, and a the problem of skepticism raised in Descartes’ Meditations. I will conclude by making some more general remarks about the difference between this problem and other core philosophical problems. Robert Nozick offered an interesting evolutionary explanation of the core problems of philosophy, an explanation of the fact that they are problematic. He suggested, as a “hypothesis,” the possibility that all of the seemingly intractable problems of philosophy – including the problems of induction, of other minds, of the existence of the external world, of the justification of morality – “all mark assumptions that evolution has built into us.”⁸ Human beings, for example, are very good at “reading” faces. Children learn just a few days out of the womb to look at a smile and smile back. They nimbly leap from observed behavior to a conclusion about what is going on in the mind that goes with the face. Over many millennia, the capacity to make leaps like this were selected for and strengthened. One day, Descartes looks out his window at people walking by and realizes that what he sees, strictly speaking, is “hats and coats, which may cover automatic machines” and he finds that he cannot construct a rational argument that starts with what he observes and ends with the idea that these are people and not automata.⁹ The transition from the one thought to the other does not seem to have the right steps, linked in the proper way, to make it a genuine rational justification. Nozick’s hypothesis is, in effect, that with regard to problems like this one, philosophy attempts to do, by means of rational thought, what evolution has designed us to do by instinct. His point (or part of it) is that, given the origin of the problem, we should not be too optimistic about the possibility that this can ever be done.

How does this apply to the double-standard problem? It seems to me that it does not apply to it, does not explain why it is a problem. But the reason why it does not apply, doesn’t entail that it is any more tractable than the problem of other minds, rather the reverse. There is a big and directly relevant difference between the problem of the double standard and a problem like Descartes’ problem other minds. We are descended from hunter-gatherer bands and, before that, from group-dwelling primates who had a constant need to decipher each other’s thoughts and emotions. Those who were able to leap to reliable conclusions about such things were more likely to pass their traits on to offspring than were their less intuitive neighbors. On the other hand, we did not descend from bands who constantly dealt with immigration officials and tax-collectors. A mere one thousand years ago, there were large areas of the earth where people had little or no contact with states at all, and those states that did exist were, by our standards, little more than brutal gangs of thugs. Even today, there are human beings here and there who still live beyond the effective reach of the states that nominally rule their territories.¹⁰ Insofar as our evaluative intuitions can be explained by evolutionary means, they would have to be ones that can hold the individuals in a small band together: personal loyalty, tit-for-tat notions of justice, fairness in the division of the proceeds of group efforts such as hunting and raiding, promise-keeping, property rights, obligations based on kinship and marriage. Clearly, bands of individuals who are disposed to learn these behaviors quickly and act on them reliably would be more “fit,” in Darwin’s sense, than bands that are constantly split and hobbled by greed, squabbling, and back-stabbing. Our most deeply rooted moral ideas, this hypothesis would maintain, are ones that bind individual o individual.

This seems to immediately yield an explanation for the problematic status of what I have been calling the problem of the double standard. More precisely, it explains the asymmetry of intuitions that underlies the problem, the fact that moral intuitions are more gripping than political ones. The notions that I apply to my neighbor and my Uncle Harry are so gripping because they are these basic ideas that bind the band together. What we see in the problem of the double standard is that these notions are very poorly adapted to understanding the state as a legitimate institution. So far, the explanation of the problem sounds rather like the explanation that Nozick gives. The difference lies in the fact that his explanation takes the form of claiming that, in the contexts he is discussing, instinct outruns reason. His explanations include a certain assurance that we will continue make the right inferences. I am not about to stop seeing my Uncle Harry as having a mind just because I cannot reconstruct the inferences involved as knock-down arguments. Nested inside this assurance as the additional assurance that ther is a right answer, selected by the evolutionary process.

The difference between this and the evolutionary explanation of the problem of the double standard is that in the latter case, both sorts of assurance are missing. Here, the problem is not the difficulty of getting to a place, by means of reasoning, that we normally arrive at by means of intuition. The problem is that intuition seems unable to get there at all. In constructing a justification of the state, unlike in the problem of other minds, reason is really entirely on its own. And that, when you pause and think seriously about it, is quite disturbing.¹¹

Lester H. Hunt

University of Wisconsin - Madison