The State by Anthony de Jasay (19 page)

given talents, grace and beauty or the poise and assurance derived from a privileged background, were undeserved while advantages acquired by dint of application were deserved. By and large, however, earlier liberal thought did not seek to deny that people owned their qualities (though everybody was said to be entitled to equal opportunity to acquire at least those that education makes accessible to the ordinary plodder; there could be different views on what opportunities ought in equity to be provided for the brilliant person who gets more benefit out of the "same" education-should he be taught less?-but those were relatively peripheral doubts). Their differential qualities, if they owned them, had to be reflected in differential rewards if marginal productivity theory, implying equal rewards to equal contributions, was to make sense. Finally, capital merited its remuneration, and though vast incomes accruing to the owners of vast amounts of capital were hard to swallow, it seemed harder yet at first to say that property is inviolable when you have only a little of it but can be violated when you have a great deal.*73 The temptation to gnaw at the edges of the principle of property's inviolability could not long be resisted. Property had to be socially responsible, it had to provide work for people, its fruits (let alone the principal!) ought not to be dissipated in extravagant spending.

T.
H. Green himself rather approved of industrial capital whiledetesting landed property, and many liberals were inclined to feel that though capital was owned by particular individuals, it was really held in trust to society, a feeling seldom offended by the archetypal turn-of-the-century capitalist who saved and reinvested all but "the interest on the interest."

2.5.16 Capital and personal endowments were thus, albeit grudgingly, admitted as legitimate causes for one person ending up with a bigger bundle of goods than another; yet the justness or otherwise of the relative bundles nevertheless became subject to public
review, with the state legitimately proceeding to the adjustments deemed appropriate from such review. However, it was not the legitimate causes of inequality that produced the injustice-this would have been a patent absurdity-but the fact that some apparently free contracts were in reality (in T. H. Green's phrase) "instruments of disguised oppression," hence their terms were capable of producing unjust distributive shares.

1. How to pin down this Hegelian distinction? At first sight, it looks as if it referred to the unequal status of the contracting parties. A contract between the strong and the weak is not really free. Reflection shows, though, that this will not do. When is a worker weaker than a capitalist? He must surely be weaker when he is unemployed and badly needs a job? Does it then follow that when there is a severe labour shortage, it is the capitalist who badly needs workers who is weaker? If this is the wrong symmetry to employ, what else can we say but that the worker is always weaker than the capitalist? Employment contracts are thus always unequal and it is always wages that are too low and profits that are too high.
   
 

2. As liberal thought did not really mean this, however, what did it mean? The more we try permutations of economic and social status, bargaining power, market conditions, the business cycle and so forth, the clearer it becomes that the operative distinction between "strong" and "weak" contracting parties is that the person making such distinction considers the terms agreed as too good for the one and not good enough for the other. No other ground is available for this diagnosis than his sense of justice. The injustice of a contract, in turn, serves as sufficient evidence that it was entered into by unequal parties, that it was an unequal contract. If it was unequal, it was unjust, and so we go around in circles.
   
3. When, then, is a contract unfree, an "instrument of disguised oppression"? It is no good answering "when it produces unjust distributive shares," i.e. when profits are excessive and wages are inadequate. This would stop us from saying "distributive shares are unjust when they are produced by unfree contracts." If we are to escape circularity we must find an independent criterion either for unfree contracts (so we can spot unjust shares) or for unjust shares (so we can identify unfree contracts). Pursuing the early liberal approach calls for the former, for an independent definition of the unfreedom of contracts, so we can argue from unfreedom to injustice.
   
 

4. The tautological criterion of the unfreedom of a contract is that it was agreed to under duress. But for such a contract to pass as apparently free, the duress must be unseen. If everybody could spot it, it would not be "disguised oppression," it could not be mistaken for free. It takes a discerning eye to detect it.
   
 

5. The next best criterion for disguised duress, then, is that the discerning eye recognizes it as such. This, however, only defers our difficulties, for now we need an agreed independent criterion for identifying whose eyes are discerning. Who, in other words, shall have the quality of judging that a contract involves disguised duress, i.e. that it is really unfree? It is this kind of conundrum which arose in national socialist Germany over the muddled attempts in the Nuremberg laws to define who is or is not Jewish, and which Hitler is reputed to have cut through by declaring: "Wer ein Jude ist, das bestimme ich!" (I shall decide who is a Jew!).*74
   
6. It would seem, therefore, that for lack of independent criteria, interpersonal justice relies on the same intuitionist solution as interpersonal utility. Whoever commands power for mending the arrangements of society, and uses it, may be deemed to have assessed the effects on the utilities of all concerned, compared them and chosen the arrangement maximizing his estimate of interpersonal utility. It is meaningless to assert that he has not done so, or that he has falsified his own estimate, finding one result and acting on another. His choice will "reveal his preference" in two equivalent senses: putting it simply, his preference for the gainers over the losers; putting it more awkwardly, his assessment of the utilities of the prospective gainers and of the prospective losers respectively, and his way of comparing the two.
   
 

7. This account of the finding of the balance of utilities goes, mutatis mutandis, for the discovery of distributive justice by finding the balance of interpersonal deserts. Whoever is using coercion to put constraints upon the terms contracts are allowed to have, and to tax and subsidize so as to correct contractual outcomes according to the just deserts of the parties, can be deemed to have sympathetically observed contracts, to have detected the instances of disguised oppression of the weak and, in overriding such really unfree contracts, to have given effect to deserts and maximized justice as much as was politically feasible. It is futile to deny that he has done so, as it is to argue that he was not led by his true conception of justice. The standard liberal view is that the state which behaves as if it acted on interpersonal comparisons of utility or deserts or both, should be doing so in a framework of democratic rules so that there should be a popular mandate for its coercing the losers.
   
8. It is always comforting to ascribe coercion to a popular mandate, for everybody tends to approve more easily of a choice if "the people wanted it" than if "the despot wanted it." There are, however, morally more ambiguous possibilities. Instead of the state's interpersonal preferences being the result of popular mandate, causation can be thought to run the other way. In a political system resting mainly on consent of the "headcount" (electoral democracy) type, it is plausible to think of the state as organizing a popular mandate for its tenure of power by manifesting interpersonal preferences and promising to act in favour of selected people, groups, classes, etc. If it is successful in so doing, it can obviously be seen as balancing interpersonal utility or deserts and dispensing distributive justice along lines yielding the required result.
   
 

9. The attempt to tell which way round things "really" work can hardly be subjected to empirical test. One could perhaps tentatively suggest that in "the people's mandate directs the state" version, it is the subjects' sense of justice the state must satisfy, while in "the state bribes people to get their mandate" it is their interest. But few people consciously believe that their interest is unjust. Unless they do, their interest and sense of justice will coincide and be satisfied by the same actions. Hurting their interest will strike them as an injustice. There will be no litmus test for telling apart a state pursuing social justice from one playing "end-of-ideology," "pluralist" interest-group politics.
   
 

10. If the state is "merely obeying orders," carrying out the democratic mandate, responsibility for its actions lies with "the people" whose tool it is. More precisely, it is the majority (of voters, wielders of clout, or a blend of the two, depending on the
    

way the particular democracy works) which is responsible for the harm done to the minority. Things become more complicated if we must take the view that the state engineers a popular mandate and bears the same sort of responsibility for it as does the "pusher" for his customers' demand for a habit-forming substance. The addict then becomes as much a victim as the person he mugs in order to feed his habit.

1. Obviously, if all contracts had been really free with no one made to accept unjust terms under disguised duress, the question of distributive justice would not have arisen, or at any rate not while property was still held inviolable. It was just as well for the muscular development of the democratic state that this was not found to be the case.
   
 

 

Author: Jasay, Anthony de Title: The State

Anthony de Jasay

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2. The Adversary State
Unintended Effects of Producing Interpersonal Utility and Justice

The constraints imposed on people by the state do not merely replace private constraints.

1. If people must always be bossed about and put upon, does it matter who does the bossing?
   
 

2. Whether it is conceived as pursuing interpersonal utility or distributive justice, the state provides a good for some of its subjects. Stretching words a little, it can be said that this good is the intended effect the latter were aiming at when lending their support to its policies. In the process of helping some (perhaps most) people to more utility and justice, the state imposes on civil society a system of interdictions and commands. This operation has inherent self-feeding characteristics. People's conduct will get adjusted, habits will be formed in response to the state's aids, interdictions and commands. Their adjusted behaviour and new habits create a demand for additional aids, needs for commands and so on, in a presumably endless iteration.*75 The system becomes progressively more elaborate and requires an increasing apparatus of enforcement in the widest sense. Regularly or spasmodically, the power of the state over civil society will increase.
   
 

3. Incremental power accruing to the state in this way is a kind of second growth, over and above the accretion of state power engendered by its expanding role as the producer of more putative interpersonal utility and justice. These servitudes impinging to
   

varying degrees on all subjects, and the enfeebled relative position of civil society as a whole, are the unintended effects of the state promoting the good of its subjects.*76

1. This observation is not original, the less so as the rise of state power, the modification of people's behaviour towards it (and towards each other) and the mutually reinforcing character of some of these developments belong to that momentous class of unintended effects which are not wholly unpredictable, yet remain largely unforeseen. The process is typically one within which prophecy has every chance of being disbelieved. Tocqueville saw it before any of it really happened, and Acton saw it about as soon as it started to gather momentum. When it was going strong, the liberal ideology had to find a place for it.
   
 

2. It did so by nurturing three separate strands of argument. The first basically denied that anything untoward was going on, that there were large and possibly ominous unintended effects piling up both in front and in the wake of social progress. The truth of this argument is an empirical question, the answer to it seems to me tediously evident and I do not propose to discuss it.
   
 

3. The second is that the hypertrophy of the state, while possibly real, is not malignant, at least not per se. It is what the state does with its increased weight and power that should condition our judgement of it. The view that great state power is intrinsically bad because it magnifies the harm individual subjects, or all of civil society, would suffer if the state chose for whatever reason to use it harmfully, is arbitrary and biased. The correct liberal view must be that democracy ensures that state power will not be used in ways harmful to the people. As the source of the increase in
   

state power is precisely the extension of democracy, the very mechanism which breeds the unintended effects the reactionaries pretend to fear also breeds the safeguard against their purported dangers.