Copyright © 1998 by Paul F. deLespinasse, Adrian College
For details of generous permission to copy or
link, click here.
Document may not print if you have not
clicked here first.
Footnotes are at the end of the chapter.
"Certainly most people seem to think that mastery is statesmanship, and they have no compunction about inflicting upon others what in their own community they regard as neither just nor beneficial if applied to themselves."Aristotle, The Politics
No subject draws our attention to the unpleasant realities of government faster than military conscription. A draft treats individuals in ways that are nearly unique in modern conditions. Normal laws threaten people in general with bad consequences if they take prohibited actions. Individuals who obey the law are let alone and allowed to live according to their own personal plans. A draft, in sharp contrast, tells specific individuals that they must act as ordered by the government rather than determining their own personal plans.
A draft commandeers an individual's life and orders him to do things that are forbidden by prevailing religious and moral codes and, indeed, by the laws of every civilized society. Deliberately killing other human beings, not in self-defense, not because they have violated a law calling for capital punishment, not as a helpful act of mercy based on a request or implied request, is never considered proper when done as the result of a personal decision. But conscripts can be ordered to do it.
Private individuals who attemp to "draft" other people even to engage in peaceful labor clearly violate American law. The courts would find that it violates legislation enacted under authority of the Thirteenth Amendment's prohibition, not just of slavery, but also of "involuntary servitude." But the U.S. Supreme Court ruled flatly in 1919, when the World War I conscription was challenged, that it did not constitute involuntary servitude and was not unconstitutional on any other grounds either. Footnote 1.
Military forces, recruited one way or another, appear to be an essential part of any government. They are organizations that wield the power of the sword, the power to inflict "deprivations" of "life, liberty, or property" (to borrow from the terse formula of the Fifth and Fourteenth amendments to the U.S. Constitution) on collective groups of people. They are one manifestation of the distinctive characteristic of government, as compared with all other types of human associations: its claim to a legitimate monopoly of the power of the sword.
No government needs to conscript people in order to have military forces. The power of the sword is not the only type of power available to government. It is theoretically possible to recruit an army strictly by means of the power of the pen, the power of pure persuasion. "Uncle Sam needs you!" "Join the navy and see the world!" "Remember the Maine!"
In practice, however, pure persuasion has very limited ability to secure volunteers. Most people are not independently wealthy. Joining the army means giving up--for the time-being--the occupation by which one otherwise would be earning a living. Some financial compensation for serving will therefore be necessary in addition to the pure persuasion of the pen. But such compensation is an example of the third kind of power wielded by government, the power of the purse.
The power of the purse is the power to induce people to do what is wanted by government. It can induce people to volunteer for military service. If a given level of inducements (salary, etc) proves insufficient to attract sufficient numbers of qualified volunteers, the supply of volunteers can be increased by offering increased inducements.
This alternative to military conscription, of course, does not mean that government could exist without using the power of the sword. The whole purpose of military forces is to wield that very type of power. And if we look beneath the surface, we find that even an all-volunteer armed force is actually recruited by means of the power of the sword.
Conscription recruits soldiers by directly and selectively using the power of the sword. Specific individuals are singled out and ordered to serve, or else . . . ! Those who refuse to serve will be punished by the direct application of the sword to them, personally. They will be fined, imprisoned, or (in some countries) executed.
An all-volunteer army likewise is recruited by means of the power of the sword, but here the sword is used indirectly and generally. The individuals who enter the armed forces are induced to do so by economic means rather than by the threat of the sword. But government acquires the money needed to induce these volunteers by taxing the general population. Taxes, of course, are not mere requests for donations! Government is not like the United Fund. Taxes are collected at the point of the sword. Without the power of the sword, then, even an all-volunteer army would be impossible for all practical purposes.
It is widely recognized that its power of the sword is the distinguishing characteristic of government. Mao Tse-tung, the Chinese Communist leader, put it most succinctly: "All political power grows out of the barrel of a gun." Or as sthe great Catholic philosopher St. Augustine put it, "Justice being taken away, then, what are kingdoms but great robberies?" Can there be any doubt that robbery is a manifestation of the power of the sword?
Max Weber, the distinguished modern social scientist, says it this way: "A state is a human community that (successfully) claims the monopoly of the legitimate use of force within a given territory." Footnote 2.
"The sword," of course, is only a metaphor. We readily understand that Mao Tse-tung's, "gun" points to exactly the same underlying reality. The underlying reality of government is its ability to deprive some people of "life, liberty, or property." The specific method by which it imposes the deprivation is not the essence of the matter.
Despite wide recognition that "all political power grows out of the barrel of a gun," the western world has endured several centuries of rhetoric attempting to deny this plain fact. But when some schoolteacher, professor, or Fourth of July orator tells us that government (at least our government) is based on "the consent of the governed," we cannot take these words literally. Clearly, the government in question came into existence without our consent, since we weren't even born yet. Nor will it come to a screeching halt tomorrow if we decide to withhold our consent to its continuing existence.
We are called on to vote about many things, but we are never asked to vote for or against the continuing existence of government. Government isn't like that!
An important school of political philosophers has tried to maintain that government results from conclusion of a "social contract." Since a contract binds only individuals who consent to it, these social contract philosophers have had to claim that a current government whose existence they support was originally established by the unanimous consent of the relevant population.
There is and could be no evidence of any such unanimous "social contract" in actual history. Combining respect for historical fact with belief that only the unanimous consent of contract can make a government legitimate, we would have to conclude that no existing government is legitimate. But to require unanimity is to hold government to an impossible standard. It will always be in some individuals' interest to hold out.
A less implausible theory of social contract might hold that unanimity is not necessary in order to create a legitimate government, only the consent of a majority. But a government must have control over everybody in its jurisdiction, and people who consent to a contract cannot thereby delegate to the organization created by that contract authority over individuals who have not consented to the contract. The trouble then with social contract theory is that it would require a unanimity which is neither historically nor politically credible, whereas mere majority support is insufficient to constitute a contract giving the resulting government authority over everybody.
The situation is further confused by the fact that many of our associations with government are voluntary. That is, they are created by the mutual consent of the relevant individuals or private associations, on the one hand, and of the government, on the other hand. To return to our original discussion, for example, the association between a government and the members of its all-volunteer army is a voluntary one, established by the mutual consent of all the parties. This is just a special case of the employment relationship between government and its officers in general. No one is threatened with "deprivations of life, liberty, or property" if they refuse to accept a position with the State Department, the NASA, or the U.S. Postal Service. The employment relationship is just as consensual when a government is the employer as it is when the employer is a private individual or organization.
Likewise, when government purchases goods or services from private corporations, the association between government and corporation is voluntary, created by the mutual consent of both sides to the deal. If the terms proposed by one side are not satisfactory, the other side is completely free to say "no deal!" and walk away. And the same is true when government provides goods or services for private consumption. The person who elects to use the U.S. Postal Service or to attend a government operated university is associating voluntarily with government.
There can even be voluntary associations between governments. When the U.S. federal government, for example, makes grants-in-aid to state governments, subject to state compliance with certain conditions, the association between these governments is a voluntary one. At the world level, the United Nations is a voluntary association based on a multilateral treaty consented to by all of the member governments.
The many voluntary associations to which government is a party must not confuse us into thinking that government itself is a voluntary association. The special ability of government to be a party to voluntary associations is rooted in its power, not of the purse or of the pen, but of the sword. It is through taxes, as we have noted, that government secures the resources needed in order to induce people to enter into voluntary associations with it. Taxes, to repeat, are the epitome of legitimate government, and they are not voluntary donations.
Few people object to government's claim of a monopoly on the right to employ the sword. A society where the sword could be employed by large numbers of private persons and groups would obviously be intolerable, a "war of all against all," as the philosopher Thomas Hobbes put it over three hundred years ago.
On the other hand, it is widely understood that it is not prudent to allow government a monopoly of the power of the pen. The First Amendment to the U.S. Constitution with its categorical prohibition, "Congress shall make no law. . abridging the freedom of speech, or of the press . . . ." seeks to prevent exactly such a monopoly. The dramatic impact when glasnost arrived in the Soviet Union in the late 1980s showed once again just how dangerous the previous government attempt to monopolize mass communications had been.
General awareness that governmental monopoly of the power of the purse is equally dangerous and unnecessary has only developed recently with the final breakdown of the Marxist experiments in central Europe, the Soviet Union, and elsewhere.
Although we may defend or criticize the existence of particular governments, it is useless to seek arguments in favor of or against existence of government in general. Government is inevitable. The only alternative to the existence of one government in a given area is existence of more than one. It is just as futile, and just as unnecessary, to try to justify existence of government in general, as it would be to justify existence of Ohm's Law, the Second Law of Thermodynamics, or the law of gravitation.
Imagine a society in which absolute anarchy--the total absence of all government--prevailed. (A world in which there is no universal government having jurisdiction everywhere may be considered only a relative anarchy, since there is no location which is lacking a government of some type.) The distinctive thing about such a society would be the tremendous opportunity it would present for a few individuals to get together, agree among themselves to form a gang, and announce that anybody not paying protection money to their gang would be killed. The only choice people would have in this situation would be to knuckle under, or to fight. But to fight successfully they too would have to band together in groups, for isolated individuals cannot cope with an organization. Once organized, such defensive groups would themselves have the ability to extract resources from individuals who remain disorganized.
Bertrand de Jouvenel is expressing this view of the origin of government when he tells us that:
Conquest and nothing but conquest gives birth to large formations. . . . . It follows that the state is in essence the result of the successes achieved by a band of brigands who superimpose themselves on small, distinct societies; this band, . . . is itself organized in a society as fraternal and as full of thieve's justice as you could please . . . . Footnote 3.
The origins of government can far more plausibly be found in protection rackets than in a social contract. Unanimous consent exists among the individuals who organize the crime until and unless the resulting organization starts conscripting rather than inducing people to join its own ranks. But the "knuckling under" of the rest of the population is not the kind of consent that can constitute a contract, since it is produced by threatened sanctions rather than by the offer of inducements.
We must not, however, let ourselves be confused by the fact that government's origins are extremely maculate. The functions, or general social consequences, of an organization or action can be quite different from the purposes of the people who create the organization or take the action. Government's ignoble origins are no basis for condemning the existence of government. What starts as a "robber band" (St. Augustine) may yet end up promoting justice.
Precisely because the basic relationship between government and governed is an involuntary association that "grows out of the barrel of a gun," government can provide certain very needful services that purely voluntary associations could not do. As H.S. Harris explains it:
(T)he political community does not . . . present to its members the aspect of a club that they need not join, and can always resign from. The State is the necessary association because it is the locus of those powers of compulsion without which no human group could maintain itself against the differing compulsions of natural impulse in its members. Footnote 4.
Four basic functions are uniquely served by government:
Government is "public," in that it asserts jurisdiction over everybody (the "public"), not just over some people in a given area, and our basic relationship with it is an involuntary association rooted in the power of the sword. But this public-involuntary association can protect us from the unlimited proliferation of private-involuntary associations that would occur if there were no government. Through law, government attaches artificial side effects to private actions such as drunk driving, robbery, and murder, which produce private-involuntary associations. Drunk driving, for example, subjects other people to risks of accident, injury, property loss and death (privately caused deprivations of life, liberty, or property). Law presumes that some people, at least, are less likely to commit murder if the side effect will be the electric chair.
Of course, laws are not always successful. The deprivations provided for violators may be inadequate to discourage the prohibited action--mere "slaps on the wrist." And no legal system can eliminate all crime. Government's function is not to eliminate private-involuntary associations, but to minimize them.
A second function of government is to facilitate private- voluntary associations. A contract is a legally enforceable agreement, and government encourages private-voluntary associations chiefly through laws regarding contracts. Of course, not all private agreements are enforceable. A coed agreeing to go on a date with her boyfriend, for example, cannot be compelled to do so by a court if she tries to back out. Nor will any court order her to pay money damages to her friend even if, relying on her company, he obtains theater tickets or rents an automobile. But the fact that some agreements are legally enforceable increases our options, as Gordon Tullock explains:
It is clear that situations in which making such an enforceable promise is desirable are fairly frequent. I wish to buy a house and do not have enough money to do so. Borrowing the money will improve my satisfaction, but in order to borrow I have to convince the lender that I will repay. Perhaps I can get away with an unenforceable promise, but for most people such loans are only possible if there is some mechanism to enforce the repayment. Footnote 5.
Government not only makes enforceable agreements possible but it provides neutral judges to resolve disputes about such agreements. Some parties bypass the judge by jointly sending disputes to an arbitrator, but the courts are available when other recourses fail. Without government, terms of voluntary associations would only be enforceable by the parties and their private associates, a messy and inefficient process at best. Government thus allows voluntary associations on a scale otherwise impossible. It is no exaggeration to say that private enterprise rests on public foundations.
A third governmental function is to protect us from other governments. One part of this function, defense against external attacks, may not always be necessary. If there were a world government, external defense would not be necessary. But the third function of government would remain, for it includes defense against potential governments that might try to replace a current one.
It is quite possible for two or more governments to rule over the same area at the same time. In the United States at least three governments usually legislate for any one place: the federal government, a state government, and a city or county government. Often, there are many more than three. During revolutions several governments generally exercise some control over the same area. In 1917 Russia was governed from February to October both by the Provisional Government under Alexander Kerensky and by the Petrograd Soviet, dominated by Lenin. Both centers of power issued orders that were obeyed to some extent. Likewise, large areas of South Vietnam were under both the Saigon regime and that of the Vietcong during much of the time the United States was involved in the war there. In many villages it was said that Saigon ruled by day, the Vietcong by night.
Subjection to more than one government is tolerable, however, only if there is a clear pecking order among them, as in the United States. When one government makes an action illegal and another in the same place makes avoiding that action illegal, their subjects are damned if they do and if they don't. They cannot protect themselves against sanctions by obeying the law, for obeying one law requires violating the other. The Supremacy Clause of the U.S. Constitution is designed to avoid placing citizens in exactly this predicament:
This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made . . . under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. (Article VI, Section 2.)
A fourth function of government is to regulate the use of scarce natural resources, minimizing costly and disruptive private quarrels over conflicting claims. This function has been performed in a very unsatisfactory way by every government so far known to history. Even towards the end of the twentieth century, many governments failed to rise beyond the natural instinct of the dominant robber band to claim all things of value as a monopoly of its own members. Thus we see middle eastern monarchs claiming personal or family ownership of invaluable oil reserves, natural resources worth hundreds of billions of dollars. Potentially, however, a government which aspires to be more than a great robber band can play a very constructive role in the peaceful and just allocation of rights to use and to benefit from the value of natural resources.
The special ability of government to protect us from private-involuntary associations (crime) and from other governments, to facilitate private-voluntary associations by enforcing contracts, and (potentially) to secure the just allocation of scarce natural resources, is due to the fact that government itself is basically an involuntary association. Although the government organization itself may be a purely voluntary association, it is the relationship between that organization and the vast masses of people over whom it exerts jurisdiction that justifies that organization's claim to be a government. And that relationship, the association between the government organization and the people is clearly an involuntary association growing out of the power of the sword. Like all power, however, the power of the sword is "morally ambiguous." It can be used in good ways for good purposes, and it can also be used in bad ways or for bad purposes.
The power of the sword, in fact, is especially susceptible to egregious abuse by those who wield it. When we deal with someone who is employing the power of the purse, a certain amount of protection from its abuse is inherent in the nature of that power. The power of the purse is the power to induce us to do what the person who offers the inducement desires. If we have better opportunities elsewhere, or just do not prefer to do whatever it is for any reason, we are free to reject the offered inducement. Our basic protection from abuses of the power of the purse is our right to refuse to enter into a voluntary association.
Likewise, we are protected from abuses of the power of the pen, the power of pure persuasion unaccompanied by offers of benefits or threats of deprivations. Although the power of the pen is considerable, according to some even more powerful than the sword, it cannot make us do anything "against our will." If we are weak-minded or unsophisticated and allow ourselves to be persuaded to do unwise things by some clever talker, it is basically our own fault, and the keys to liberating ourselves from abuses of such power lie entirely within ourselves. Footnote 6.
The power of the sword is unique in that it alone can compel association without the consent of the person against whom it is threatened. This is why we so appreciate the protection government affords us against private robbers. But what if the government itself, "taking away justice," as St. Augustine put it, acts as if it were just a great robber band? As we have suggested, the original governments were probably indistinguishable from organized crime. But even though government may rise well above its origins, potential for abusing its vast powers always remains.
Political philosophers as far back as Plato and Aristotle already saw this danger very clearly. Aristotle, for example, classified all governments into six possible forms. One dimension in his classification was based on who rules: one person, a few people, or the many. But he then noted that there were good and bad forms of all three of these possibilities:
Good government Bad government
__________________________________________
one | monarchy tyranny |
| |
few | aristocracy oligarchy |
| |
many | polity democracy (!) |
|________________________________________|
No matter whether the ruler is one person, a few, or the many, Aristotle felt that good government was government which promoted the general welfare, while bad government was conducted for the selfish benefit of the tyrant, of the oligarchs, or of the majority of the moment. Note that for Aristotle, "democracy" smacked of "mob rule," and that modern constitutional democracies are probably closer to being "polities" in his sense of the term.
Exploitation of the great masses of the people by the individuals who control the government is a major danger. Historical examples are so depressingly numerous that we need not recite any of them here. And we should not smugly assume that "it can't happen here,"Footnote 7. when we have democracy (in the modern sense of the term) to protect us from governmental abuses. As one wit put it not long ago, our ancestors may have had a point when they complained about King George III and demanded "no taxation without representation," but even taxation with representation may be an intolerable burden. Democracy is one of the protections we need against the abuse of government power, but it is no panacea. It may protect majorities from being exploited by predatory minorities, including the ruling minority, but democracy cannot protect minorities from being exploited and abused by the representatives of a ruling majority.
Democracy, for example, does not prevent a government from choosing individuals arbitrarily and threatening them with severe deprivations if they refuse to serve in the armed forces. The United States was a democracy when, during World War I, it conscripted military forces. As noted earlier in this chapter, a draft consists of directly threatening to use the power of the sword against selected individuals. It is, of course, those who govern who do the selecting.
Being drafted clearly is not in the interest of the draftees. If serving in the armed forces were in their interest, there would be no need to draft them. They would volunteer. However a draft may well be in the interest of the majority of the people in the country, who acted through their representatives to establish conscription. The only alternative way to secure the personnel needed to expand the armed forces would be to increase the inducements offered to attract additional volunteers: salaries, fringe benefits, etc. But to increase military salaries would require either an increase in taxes or a compensating decrease in other government programs. Either of these steps would adversely affect the interests of the majority of the people, since taxes are paid by virtually everybody, indirectly as well as directly. The draft is thus a government policy by which a majority protects its own interests at the expense of an arbitrarily selected minority. It is fully democratic, but it is still an abuse of the governmentally wielded power of the sword. And like the person held up by a robber while walking through a park, the draftee is singularly helpless to protect himself against the association that is being forced upon him by the government. If he refuses to associate with the army, he will be imprisoned, itself an involuntary association with the government.
Official and scholarly attempts to justify military conscription are always based on faulty logic, or incorrect premisses, or both. The principle legal challenge to conscription in the U.S., for example, came in the Selective Draft Law Cases, which arose during World War I and were finally decided by the Supreme Court in 1919. Consider the following excerpts:
"As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice."
(Of course the issue was not the power to "provide" for such men, but how to provide for them.) The Supreme Court continued:
"The ... authority to enact the [draft] statute can be found in the clauses of the Constitution giving Congress the power 'to declare war; ... to raise and support armies...; to make rules for the government and regulation of the land and naval forces."
(Again, how can Congress raise an army? Any old way? Does the power to establish a post office authorize government to compel specific people to donate their labor and/or materials to put up the necessary building?)
At long last the Court had to let the cat out of the bag, but it promptly tried to stuff it back into the bag again:
"...it is said, the right to provide is not denied by calling for volunteer enlistments, but it does not and cannot include the power to enact enforced military duty by the citizen. This, however but challenges the existence of all power, for a government power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power."
The argument is correct in the sense that the power to compel is ultimately what distinguishes government from all other legitimate forms of human association. But it ignores the fact that compulsion is still being used even when government recruits an all volunteer army. The question is not whether the government power to compel exists or not, and it is not whether that power will be used or not. It is merely whether it will be used selectively against individual draftees or generally against all taxpayers.
The Court concluded with a particularly snotty response to the claim that a draft violates the Thirteenth Amendment to the Constitution:
"Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement."
Did the Court mean to suggest that the duty of this particular draftee to "defend the rights and honor of the nation" was any greater than the similar duty of each and every citizen? If this individual's duty is not greater, why can he be singled out and compelled to serve? If it is a greater duty, why? The Court gives no answer, because there is no answer. Surely, the government may not create a duty especially for selected individuals just by saying so. This would not be a principle that the Supreme Court would accept as a general matter.
Private attempts to justify military conscription also do not withstand critical analysis. Consider, for example, the following argument put forward by Robert Dahl and Charles Lindblom, two very distinguished social scientists:
"Suppose ... that the government decides to mobilize [military manpower] resources by bidding for them on the market. It would not be long before the consequences of this decision became apparent in inflation. .... One might ask if it is not possible to forestall such an inflation through ... taxes.... (B)ut heavy taxes often run the danger of undermining worker morale and become a threat to industrial peace which governments cannot afford to risk."Footnote 8.
As Dahl and Lindblom themselves admit, the inflation they fear would be due, not to having an all volunteer army, but rather to the deficit that the greater costs of such an army would produce unless taxes were increased. But higher taxes might upset people! Therefore it is better to conscript people to be shot at than to tax people who retain a free choice of occupation. The argument is a strange one, to say the least.
But let us leave the last word in this matter to the U.S. Supreme Court. In the Selective Draft Law Cases of 1919, after reciting the clauses whereby the Constitution empowers Congress to raise armies, it pointed out that the Constitution also gives Congress the power
to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.
Let it be emphasized: all laws. Perhaps the key to unraveling this issue lies in the following question: what is a law?
It is my contention that the basic principle of good government can be expressed very simply: some laws are good, but pseudolaws are always bad.
Government is inevitable. It may promote the general welfare. But we need to organize it to maximize benefits and minimize risks. The benefits and the unique damage that government can produce are both made possible by the fact that its power grows out of the barrel of a gun.
It turns out that trying to rule merely by virtue of controlling the guns is very difficult and unpleasant. Therefore, those who rule do not merely want to be obeyed. They also want to be accepted by those they rule as legitimate.
There have been many ideas about what makes specific rulers legitimate, but the bottom line is always a claim that they are promoting the general welfare.
When rulers try to secure approval from people subject to them and are no longer content to rule solely by brute force, they become vulnerable to criticism. They start to get advice about how best to actually promote the general welfare. They invent general principles to justify their existence and actions. But these principles turn out to have important side effects, and such rulers are no longer free to do anything that they feel like doing.
Rulers' efforts to legitimize themselves by claims they are promoting the general welfare lead naturally to the rise of political philosophers. Philosophers speculate systematically about which governmental arrangements in fact might best serve the public. Such speculations in turn imply criticism of existing governments, and may lead to efforts to overthrow existing leaders by promising to do a better job. Experiments in legitimacy have now been going on for thousands of years. Some solid conclusions about good government have begun to emerge for anyone who can look cold-bloodedly at the facts and not be distracted by all the froth generated by the churning waters of current politics.
It is now clear, for example, that government's distinctive characteristic is its ability legitimately to impose sanctions on people. "Sanctions" refers to the power of the sword or gun, the power to inflict deprivations of "life, liberty, or property." A sanction is any action which reduces the satisfaction of some person (other than the person who takes the action) so that it is lower than it would be in the absence of any association with the actor.
Since imposing sanctions is government's distinctive mission, the question naturally arises: on what basis, or under what circumstances, can government legitimately inflict sanctions?
Clearly government should not have the right to inflict sanctions on specific individuals whenever officials feel this would be a good idea. If officials had any such right, nothing would prevent them from inflicting sanctions arbitrarily, without rhyme nor reason, or from using their power to rob other people for their own personal benefit. Unlimited official power could be expected if government had never risen above its origins in organized crime. But it would be unseemly for any government seeking legitimacy, and it would leave the subjects of government totally insecure.
The situation is completely different if government can only imposes sanctions on people who have broken its laws. Laws are rules of action, and people can protect themselves from sanctions by obeying the laws. In such a society no official can arbitrarily inflict a sanction on a specific individual. Instead, the people against whom sanctions can be inflicted select themselves by acting in ways prohibited by law. There is a high level of personal security, but government still retains its power to deprive people of life, liberty, or property when this is necessary for the general welfare.
Those who govern will always have the power to decide what actions the laws shall forbid. But not everything that they choose to call law can be considered a law. Imagine, for example, that a new "law" is announced to the effect that John Doe shall be jailed for ten years. For practical purposes nothing distinguishes such a "law" from an arbitrary decision to imprison Doe. Doe has no protection and cannot avoid the sanction by complying with the "law." It is therefore not law in any meaningful sense of the term. In Anglo-American jurisprudence, it is a "bill of attainder," and as such it is quite properly prohibited by the U.S. Constitution.
Or suppose that the rulers announce a "law" requiring all black people to pay a 75% income tax, imprisoning all who do not comply. Black people can protect themselves from prison by paying the tax. But the rulers have still arbitrarily selected people upon whom to impose a sanction. The black people here are being singled out and deprived of liberty (if they do not comply) or property (if they do comply). Just because the rulers may call this action a "law" does not make it one. There is no difference between such a "law" and an arbitrary government decision to rip off black people. It is not law. It is, instead, a pseudolaw.
A genuine law must be a general rule of action enforceable by sanctions. It must not apply only to arbitrarily selected individuals or groups of individuals, and any such selection must be deemed arbitrary no matter how plausible the justification given for doing so by those who govern. A law must apply to anybody who takes the prohibited action, with no exceptions whatsoever! As soon as there is even one exception, the rulers can exempt themselves and other privileged elements in the community. There is then no limit on the outrageous demands that may be placed by the "laws" on everybody else.
A law imposing a 90% income tax would never receive the majority support needed to put it on the books of a democracy. Such a law--a genuine law--would have to impose the 90% tax rate on everybody. Since few people are about to volunteer for the privilege of turning nine tenths of their paycheck over to the government, majority support will simply not exist. However it is not hard to imagine that a pseudolaw imposing a 90% income tax on a small minority of the people could receive majority support. It is not necessary to imagine; it has actually happened!
Let us now return to military conscription, the subject with which we began this chapter. Military conscription is obviously a pseudolaw. It does not threaten sanctions against everybody who does not join the army. It only threatens some people, individuals designated in terms of their sex, age, marital or occupational status, or just plain bad luck (the lottery). Since the individuals who serve under the threat of sanctions are paid less than would be necessary to induce volunteers to come forward (and this, of course, is the whole point of a draft), in effect these individuals are being taxed at a much higher rate than the rest of the population. The fact that they are paying their taxes "in kind," by the provision of services instead of money, does not make it any less of a tax.
As the President's Commission on an All-Volunteer Armed Force reported to President Nixon early in the 1970's:
"No tax is perfect, of course, but it is hard to imagine a means of imposing the cost of defense, or any other government activity for that matter, more in conflict with accepted standards of justice, equality and freedom in the United States." Footnote 9.
Conscription, said the Commission:
"has been a costly, inequitable, and divisive procedure for recruiting men for the armed forces. It has imposed heavy burdens on a small minority of young men while easing slightly the tax burden on the rest of us. It has introduced needless uncertainty into the lives of all our young men. .... It has weakened the political fabric of our society and impaired the delicate web of shared values that alone enables a free society to exist."(P. 47.)
Since armed forces are an objective necessity of any government (although perhaps not always on the grand scale that has recently been the norm), legitimate government must have the power to secure the necessary personnel. The President's Commission on an All-Volunteer Armed Force noted in its report that:
"Defenders of conscription often argue that every young person has the duty to serve his country. The real question is not whether young people have such a duty, but whether that duty does not extend to the entire populace. Is it right and proper that a large tax be confined to small fractions of our young able-bodied males in order to relieve taxpayers in general from having to pay higher taxes?"(P. 47.)
As we have seen in this chapter and observed in actual life since the Commission's report was put into effect in the United States, there is an alternative to conscription. Taxes can be imposed, hopefully by genuine laws rather than by pseudolaws, on the general population, and the proceeds used to induce people to volunteer for military service.
Pseudolaws are not an inherent part of the human condition. They are not necessary in order for government to attain any of its legitimate objectives, which can always be achieved by a judicious combination of genuine laws and of governmental purchasing power. The dangers of exploitation by means of pseudolaws are so great and the helplessness of individuals confronted by the overweening power of arbitrary government so pathetic, that the complete elimination of pseudolaws must be seen as the basic condition for good government.
Our discussion of the military, however, reminds us that not all sanctions are inflicted on individuals. Government may also inflict sanctions on groups of people. Sanctions are inflicted on individuals via laws or pseudolaws; they are imposed on groups by means of war. Armies exist in order to inflict sanctions in this wholesale fashion, whereas the more "retail" services of law and pseudolaw are provided by policemen, judges, jailers, and executioners.
Wars suffer from all of the objections which apply to pseudolaws. Laws apply the same standard to all people and inflict sanctions only on individuals who disobey them. Wars and pseudolaws, by way of contrast, impose sanctions on people without any regard to their individual merits. When the Japanese air force bombed Pearl Harbor in 1941, the U.S. sailors who were killed or injured had done nothing to justify their injuries, and of course the Japanese government had no interest in these particular individuals. It was attacking the United States as a collective body, not the victims as individuals. Likewise, when the U.S. used the atomic bomb against Hiroshima and Nagasaki, it was striking against Japan as a collective entity. The bombs mowed down residents of the two cities without regard to their individual virtues or vices, guilt or innocence, support of the war or regret about the war.
Although the purpose of a war is to destroy or defeat a collective entity, its principal victims are individuals and these individuals are selected without regard to their merits. Wars thus arbitrarily inflict sanctions on people, often even more arbitrarily than pseudolaws. Since no conceivable society could be completely immune from the possibility of a civil war occasioned by an effort to break its political system into two or more separate parts, the possibility of war will always be a part of the human condition. However the likelihood of war could be greatly reduced if there were a universal (world) government, since the most frequent occasions for war arise in international conflicts.
Some laws are good, but pseudolaws are always bad. Such is our bottom line, our proposed basic principle of good government. A Metaconstitutional government will be one which employs the power of the pen but does not have a monopoly of it. It will employ the power of the purse, again without any monopoly rights or privileges. It will successfully maintain a monopoly of the right to use the power of the sword. But with the rare exception of a civil war, it will inflict sanctions only on people who are duly convicted of violating genuine laws, general rules of action enforceable by sanctions. It will not inflict sanctions on people on any other basis.
As I propose to show in the following chapters, however, the principle that pseudolaws are forbidden has sweeping implications. The prohibition against pseudolaws, for example, all by itself, implies a requirement that government must be democratic. This will be discussed in chapter 3. Likewise, in chapter 4 and 5, I will argue that the prohibition on pseudolaws implies that economic markets must be allowed to function, and it also has a good deal to say about the legal framework within which markets must function. Finally, in chapter 6, I will explain why the prohibition against pseudolaws implies that we must have a universal (world) government.
**********************************
1. Selective Draft Law Cases (245 U.S. 366), 1918.
2. H.H. Gerth and C. Wright Mills, From Max Weber: Essays in Sociology (N.Y.:Oxford University Press, 1958), p. 78.
3. Bertrand deJouvenel, On Power: Its Nature and the History of its Growth (Westport, Conn: Greenwood Press, 1981), pp. 99-101.
4. H.S. Harris in J.R. Pennock and J.W. Chapman (Eds), Voluntary Associations (Nomos XI) (Chicago:Aldine-Atherton, 1969), p. 51.
5. Gordon Tullock, The Logic of the Law (N.Y.: Basic Books, 1971), p. 36.
6. See S.I. Hayakawa, Language in Thought and Action, 2nd Ed. (N.Y: Harcourt, Brace and World, 1964).
7. Sinclair Lewis, It Can't Happen Here (Garden City, N.J: Sun Dial Press, 1935). Subtitled "Like Hell It Can't," this novel depicts the rise of a dictatorship in the United States.
8. Robert Dahl and Charles Lindblom, Politics, Economics and Welfare (N.Y.: Harper Torchbooks, 1953), pp. 405-407.
9. The Report of the President's Commission on an All-Volunteer Armed Force (Washington, D.C: Govt. Printing Office, 1970), p. 47.