Mises Daily Articles
Vulnerable Before the Jealous State
Is civil government the only true government? Does it alone possess legitimate sovereignty? Defenders of the modern state insist that this is the case, and that it should be the case.
Robert Nisbet, as a sociologist, looked to social organizations as the source of political tradition. He explained the rise of the modern state in terms of series of conflicts between the national civil government and other institutions inside its geographical territory. He saw the rise of the modern state in terms of the state's claims of sovereignty, a sovereignty which is it refused to share with other institutions. These other institutions had possessed limited sovereignty. He also explained the rise of classical Athens in terms of this insistence on state sovereignty. He explained the Roman Empire under Augustus and later emperors in terms of this quest for unitary state sovereignty: a war-state.
The state claims to be absolute. In The Quest for Community (1953), he wrote:
Like the family, or like capitalism, the State is a complex of ideas, symbols, and relationships. Unlike either kinship or capitalism, the State has become, in the contemporary world, the supreme allegiance of man and, in most recent times, the greatest refuge from the insecurities and frustrations of other spheres of life. Where capitalism has become enveloped throughout the Western world, and the East as well, in a thickening cloud of distrust and renunciation, and where kinship, like religion, has become increasingly devoid of institutional significance and symbolic appeal, the state has risen as the dominant institutional force in our society and the most evocative symbol of cultural unity and purpose (p. 92, ISI edition, 2010).
In this, war is central. "If there is any single origin of the institutional State, it is in the circumstances and relationships of war. The connection between kinship and family, between religion and the Church, is no closer than that between war and the state in history" (p. 93).
Sovereignty and Rights (Legal Immunities)
What is the meaning of sovereignty? It is the lawful, legitimate authority to invade all rival institutions, and to be immune to invasion by them. In modern thought, it is possessed only by the State. In this sense, the state possesses what in earlier eras in the West would have been identified with God. But God's sovereignty was assumed to be delegated to legitimate institutions: the family and the church. It is also delegated to the individual. The state's sovereignty is not delegated, except under stress. He cited the most influential liberal columnist in America, Walter Lippmann, who wrote in 1929,
A state is absolute in the sense which I have in mind when it claims the right to a monopoly of all the force within the community, to make war, to make peace, to conscript life, to tax, to establish and disestablish property, to define crime, to punish disobedience, to control education, to supervise the family, to regulate personal habits, and to censor opinions. The modern state claims all of these powers, and, in the matter of theory, there is no real difference in the size of the claim between communists, fascists, and Democrats. There are lingering traces in the American constitutional system of the older theory that there are inalienable rights which government may not absorbed. But these rights are really not inalienable for they can be taken away by constitutional amendment. There is no theoretical limit upon the power of ultimate majorities which creates civil government. There are only practical limits. They are restrained by inertia, and by providence and even by goodwill. But ultimately and theoretically they claim absolute authority as against all churches, associations, and persons within their jurisdiction (p. 95).
The issue is immunity from state sovereignty. A declaration of such immunity is a declaration of legitimate sovereignty. The state denies all such declarations. Nisbet wrote,
The modern State is monistic; its authority extends directly to all individuals within its boundaries. So-called diplomatic immunities are but the last manifestation of a larger complex of immunities which once involved a large number of internal religious, economic, and kinship authorities. For administrative purposes the State may deploy into provinces, departments, districts, or "states," just as the army divides into regiments and battalions. But unlike the army, a modern State is based upon a residual unity of power. The State may occasionally delegate or place, as it were, in trusteeship certain powers, but anyone familiar with the processes of modern government, democratic or totalitarian, knows that it does this rarely and reluctantly. The extraordinary unity of relationship in the contemporary State, together with its massive accumulation of effective functions, makes the control of the state the greatest single goal, or prize, in modern struggles for power. Increasingly the objectives economic and other interest associations become not so much the preservation of favored immunities from the State as the capturing or directing of the political power itself (pp. 95-96).
Under the state, a form of capitalism emerged. We think of this system as the only form of capitalism. Historically, it has been, but there is nothing inherent in private property and trade to mandate a particular form of capitalism.
The State's development of a single system of war, sanctioned by military power, to replace the innumerable competing laws of the guild, Church, and feudal principalities; its deliberate cultivation of trade in the hinterland; its standardized systems of coinage, weights, and measures; its positive subsidies and protections to those new businessmen who were seeking operate outside the framework of guild and Church; its creation of disciplined State workhouses — all provided a powerful political stimulus to the rise of capitalism (p. 97).
Then what of individual rights? This was not a major concern in the medieval era. Why not? Because the individual's rights were defended by institutions other than the civil government.
In the medieval world there was relatively little concern with positive, discrete rights of individuals, largely because of the differences of political power and the reality of innumerable group authorities. But when the consolidation of national political power brought with it a destruction of many of the social bodies within which individuals had immemorially lived in taken refuge, when, in sum, law became a more centralized and impersonal structure, with the individual as its unit, the concern for positive, constitutionally guaranteed rights of individuals became urgent. European governments may have sought often, and successfully prolonged periods, to resist claims of individual right, but it is hard to miss the fact that states (England, for example) which became the most successful, economically as well as politically, had the earliest constitutional recognition of individual rights, especially property. In retrospect, however, we see that it was the sheer impact of the State upon medieval custom and tradition, with the consequent atomizing and liberating effects, that, more than anything else, precipitated the modern concern with positive individual rights (p. 99).
This raises the crucial question: Which rights were protected by medieval institutions, and which were not? Remember, "rights" mean "legal immunities from governments." It means the right of self-government.
The modern adult is a citizen. What does this word mean? In the Middle Ages, it meant that he was the resident of a town: citizen as in city. A peasant under a manorial lord was not a citizen. He was a subject.
In the Middle Ages, the citizen was literally the inhabitant of a free town. His status under the king, however, was that of subject. The two statuses were sharply distinguished then, and even at the end of the sixteenth century, in the writings of Bodin, we may see the continuation of this distinction. But in the modern history of politics, especially since the Age of Revolutions, the clear tendency has been for the terms citizen and subject to become virtually synonymous. The frame of reference has changed from the town to the nation as a whole, and the citizen is the atom-unit of the political association of the State. But in the modern concept of citizenship there inheres not merely the medieval idea of free status but also the idea of subjection to sovereign political power (p. 100).
A citizen today is the subject of the state. He is the subject of no one else. This liberates him from older allegiances, but it leaves him at the mercy of the state. He receives no support from rival sovereignties, for there are none. "It would be impossible to exaggerate the role of conflict between political power and the social group in the development of modern ideas of sovereignty, freedom, rights, and equality which together form the idea system of the Western State" (p. 100).
In modern terminology, this is a war over turf. The state claims sovereignty. This means total sovereignty over turf. All other claims are dismissed as illegitimate.
The real conflict in modern political history has not been, as is so often stated, between State and individual, but between State and social group. What Maitland once called the "pulverizing and macadamizing tendency of modern history" has been one of the most vivid aspects of the social history of the modern West, and it has been inseparable from the momentous conflicts of jurisdiction between the political State and the social associations intermediate to it and the individual. The conflict between central political government and the authorities of guild, village community, class, and religious body has been, of all conflicts in history, the most fateful. From this conflict have arisen most of the relocations of authority and function which have formed the conflicts of decline of medieval communalism and the emergence of both individual and central political power (pp. 100-1).
In the standard textbooks, the state is presented as a liberating force. It removes the jurisdictions of other institutions over individuals. But this leads to a monopoly of force. There is no other institution to defend the individual. He may be granted rights — legal immunities — by the state, but these may be repealed at any time. This was not true in 1250. "To compare the position of the political power of the State in the thirteenth century with that power today is to realize that fundamental among all the emancipation's modern history has been emancipation of the State from the restrictive network of religious, economic, and moral authorities that bound it at an earlier time" (p. 101). The individual has been emancipated from other jurisdictions, but so has the nation-state.
Nisbet then cited Lord Acton, who is famous for this aphorism: "All power corrupts, and absolute power corrupts absolutely."
Lord Acton stated this superbly in his History of Freedom . "The modern theory, which has swept away every authority except that of the State, and has made the sovereign power irresistible by multiplying those who share it . . . condemns as a State within a State every inner group and community, class or corporation, administering its own affairs; and, by proclaiming the abolition of privileges, if emancipated the subjects of every such authority in order to transfer them exclusively to its own. . . . It recognizes liberty only in the individual, because it is only in the individual that liberty can be separated from authority, and the right of conditional obedience deprived of the security of limited command" (pp. 103-4).
Acton saw this in terms of the quest for power, consolidated in a single institution: civil government. He did not trust it.
Nisbet saw this in terms of a revival of Roman law. This was far more pronounced on the continent than in England, although Nisbet did not mention this. He knew it, however. He had read Maitland, the great historian of the common law, which in theory is judge-discovered law. "In all this the realignment doctrines of Roman rule performed a major function. The source of monarchical aspirations toward centralized power may have been in military necessity and the desire for increased revenue, but the rationalization of such aspirations was commonly drawn from the texts of Roman law (p. 104). Roman law was enacted by a legislator. "The Roman doctrine of concession asserted in effect that all groups were dependent upon the will of the state for the exercise of their functions and authorities. Groups existed, so to speak, only in the legal contemplation of the sovereign. This was a revolutionary doctrine indeed" (p. 104).
Classical Athens moved from decentralization and pluralism to the sovereignty of the state.
In ancient Athens, as [Alfred] Zimmern has pointed out, "what we have to watch is the gradual snapping of the lesser loyalties which formed the intermediate links between the state of the individual, till the citizen stands, free and independent, face-to-face with the City." The conflict between the central government and historic loyalties to clan and tribe was one of the decisive processes of Athenian history. This conflict was apparent in the circumstances leading up to the reforms of Solon, but it was a major factor determining the reforms of the great Cleisthenes. In his desire to centralize political power and to create a scene more favorable to military and economic demands, Cleisthenes was led, toward the end of the six century B.C., to the abolishment of dominant kinship structures as significant legal entities (p. 105).
The great promoter of this was Plato. Nisbet's entire intellectual career can be accurately seen as a revolt against Plato and Plato's intellectual heir, Rousseau. "The problem for Plato, as it was to be the problem for Rousseau two thousand years later, was that of discovering the conditions within which the absolute freedom of the individual could be combined with the absolute justice of the state" (p. 106).
Plato's a solution of the problem was radical. It was nothing less than the extermination of all forms of social and political loyalty which would, by their mere existence, constitute distractive influences upon the individuals and divisive allegiances within the total community of the state itself. "The zeal of the state had come upon Plato," [Sir Ernest] Barker has written, "and had come as a fire to consume whatever was not of the State. A fire will not stop at exceptions, and these exceptions to the organic unity of the State he could not brook. . . . The whole system of Platonic communism is meant to set the individual free of everything which prevents him from taking his right place in the scheme of the state: it is designed to secure those conditions — in other words, to guarantee those rights — which are necessary to the positive discharge of his function in that scheme."
In Plato's view there is inevitable and intolerable conflict when the allegiances of man are plural. Plurality and diversity must therefore have no place in the ideal State. Unity is the condition both of order and genuine freedom. The existence of autonomous economic and social associations can lead only to social disorder, to paralyzing conflict in the consciousness of the individual, and to continuous subversion of the unity of life in society which Plato prized. Plato's hostility is directed, then, not against the individual as such but against the social group. His distrust of the autonomous family is matched his fear of an independent or private religion, and of an independent art, music, and education. All membership and cultural activity must be related closely and continuously to the monistic political community (p. 107).
Plato wrote in the aftermath of the war with Sparta, started by Athens, and which Athens lost.
The state is about war.
In historical terms the State is the outgrowth of war. In its earliest form, everywhere, it is essentially a military organization. But it does not long remain a purely military association. For the consolidation of authority and the gaining of revenue necessary to military effectiveness inevitably bring political power into conflict with other associations that lay claim to obedience and property. The State may conflict now with the clan, now with the church, now with class, or village community, or guild, or university, depending on necessities inherent in the historical situation (p. 110).
Politics is about the assimilation of functions by the civil government. The nation-state replaces all intermediate authorities as the final sovereign. "But always in the history of politics, in one degree or another, we see the conflict that is created necessarily by the existence, on the one hand, of associations, local, sectional, or functional, each claiming limited jurisdiction over its members, and, on the other, an association that identifies itself with all persons in a given territory and seeks to consolidate all important authorities within that territory" (p. 110).
When men accept the state's claim that it is the only sovereign, the only agency possessing the mark of government — denying legal immunity from all other agencies — they become vulnerable to the tender mercies of the state. They have no higher earthly court of appeal. The state claims to be the only legitimate government. It uses coercion to enforce its claim. The citizen, now emancipated from all rival claims of authority, no longer has access to rival courts.
Nisbet's first academic publication was "Rousseau and Totalitarianism," which was published in 1943. He reprinted it as chapter 1 of Tradition and Revolt (1968). He hated Rousseau and everything he stood for: the creation of a messianic state, the suppression of local associations, and the suppression of the liberties of men in the name of the General Will. Above all, he hated Rousseau's view of sovereignty, which was exclusively political. "By far the most rigorous and revolutionary theory of sovereignty is that of Rousseau" (p. 130).
Why is Rousseau important? Because "Rousseau is the first of the modern philosophers to see in the State a means of resolving the conflicts, not merely among institutions, but within the individual himself. The state becomes the means of freeing man from the spiritual uncertainties and hypocrisies of traditional society" (p. 130).
Two entities dominate Rousseau's thought: the individual and the State. In his mind they are simultaneously sovereign and, together, the only basis of a just human order. The result is the confluence of a radical individualism on the one hand and an uncompromising authoritarianism on the other. The parallel existence of these strands of thought in Rousseau's works has been the basis of numerous charges of inconsistency, charges which are, however, not true (p. 131).
This is man stripped of all rival loyalties. He is the citizen of a unitary state. "The traditional bonds of society, the relationships we generally speak of his social, or the ties that to Rousseau symbolize the chains of existence. It is from these he desires to emancipate the individual; their gross inequalities he desires to replace with a condition of equality approximating as nearly as possible the state of nature" (p. 132).
Then what is the civil government? It is an agency of redemption, both individual and corporate.
Its mission is to effectuate the independence of the individual from society by securing the individual's dependence on itself. The State is the means by which the individual can be freed of the restrictive tyrannies that compose society. It is the agency of emancipation that permits the individual to develop the latent germs of goodness heretofore frustrated by a hostile society. . . . The State is thus of the essence of man's potential being, and far from being a check upon his development, it is the sole means of that development. Through the power of the State, man is spared the strife and tyranny that arise out of his selfish and destructive passions. But in order to emerge from the dimensions of society, and to abide in the spiritual piece of the state, there must be "an absolute surrender of the individual, with all of his rights and all of his powers, to the community as a whole" (p. 133).
The State alone provides community. But this community is exclusively political.
The mystic solidarity that Rousseau preaches is not, however, the solidarity of the community existing by custom and unwritten law. The social community, as it existed in the thought of Thomas Aquinas or, later, in the theory of Althusius, is a community of communities, an assemblage of morally integrated minor groups. The solidarity of this community arises out of the moral and social observances of the minor groups. Its unity does not result from being permeated with sovereign law, extending from the top through all individual components of the structure. Rousseau's community however, is a political community, one indistinguishable from the State and sharing all the uniform material qualities of the State. It is, in his mind, a moral unity, but it is a unity conferred by the sovereign will of the State and directed by the political government. Thus the familiar organic analogy is used to indicate the unitary structure of his political community. The same centralization of control existing in the human body must dominate the structure of the community; unity is conferred by the brain, which in Rousseau's analogy represents the sovereign power. The General Will is the analog of the human mind, and as such must remain is unified and undiversified as the mind itself (pp. 133-34).
This is a redemptive religion. It allows no rival religions.
A socially independent church, like any form of nonpolitical loyalty, would constitute an interference with the functioning of the General will. It would represent a flaw in the spiritual unity Rousseau prized so highly in his political order. It would not do to repress the religious propensities of man, for "as soon as men come to live in civil society they must have a religion to keep them there. No nation has ever endured wherever willing to work without religion." But, argues Rousseau, it is not enough that a nation should have a religion. The religion must be identified, in the minds of the people, with the values of national life, else it will create disunity and violate the General will. It is not enough that a religion should make good men; it must make good citizens. Religion has a responsibility towards civic or political pins before any others. It must reflect, above all, the essential unity of the State and find its justification in the measures it takes to promote that unity (pp. 136-37).
Then there is the family.
Hardly less than religion the family itself, as a corporate entity, must be radically adjusted to meet the demands of the General Will. Morality is essentially a specific condition, and without citizens there can be no virtue. "Create citizens, and you have everything you need." To form the citizens is not the work of the day, nor is it a responsibility that can be left idly to the influences of traditional society. The unitary state calls a remodeling of human nature so that there shall be no irritants to the body politic. "He who possesses the courage to give a people institutions, must be ready to change human nature, to transform every individual, who by himself is a complete and separate whole, into a part of a greater whole from which this individual in a certain sense receives his life and character; to change the constitution of man in order to strengthen it, and to substitute for the corporeal and independent existence which we all have received from nature a merely partial and moral existence" (pp. 138-39).
Education is the task of the state, not the family. Nisbet quoted Rousseau.
Should the public authority, in assuming the place of father and charging itself with this important function, acquire his rights in the discharge of his duties, he should have a little cause to protest; for he would only beach altering his title, and would have in common, under the name citizen, the same authority over his children, that he was exercising separately under the name father, and would be no less obeyed when speaking in the name of the law then when he spoke in that nature (p. 139).
For Rousseau, the state is the source of morality. The state can redeem mankind. He quoted Rousseau. "If you would hand the General Will accomplish, bring all the particular wills into conformity with it; in other words, as virtue is nothing more than this conformity of the particular wills to the General Will, establish the reign of virtue" (p. 141). Nisbet then summarized the implications of this statement.
Establish the reign of virtue! This was the moral imperative that was to capture the visions of men of good will everywhere in nineteenth-century Western Europe. But establish it how? Establish it to the sovereign power of the State! Man is born free and good, yet everywhere he lies fettered and corrupt, the product of repressive institutions. Not through kinship, class, church, or association can man be freed, for these are the very chains upon his existence. Only by entering into the perfect State and subordinating himself completely to its collective will will it be possible for man to escape the torments and insecurities and dissensions of ordinary society. The redemptive power of the sovereign State — this was Rousseau's burning slogan for the modern world (p. 142).
Rousseau became the political theorist most respected during the French Revolution. That revolution attempted to enforce the unity and solidarity that Rousseau proclaimed.
When the civil government alone is believed to possesses sovereignty — legal immunity from government invasion — freedom is left without institutional defenses. When the state is widely accepted as the only legitimate form of government, it will extend its power into every nook and cranny of human life. There will be nothing to stop it — no theory of countervailing authority.
In a great scene in A Man for All Seasons, Thomas More challenges another man's view of law. The other man invokes God's law. But what More says applies as well to all laws and immunities possessed by governments other than civil government, and especially the laws of the nation-state. What happens if these immunities are swept away by the state?
[Reprinted from GaryNorth.com.]