A Lecture Series with Prof. Thomas Patrick Burke
The Moral Basis of Government
We saw in the second lecture that the interior freedom of the will is the foundation of the moral order. For everyone recognizes that an action done under predetermining force cannot be either moral or immoral. It is only because our will, as adults, is free that our actions are properly imputable to us, that we are personally responsible for them and accountable to others for their consequences.
The interior freedom of the will creates a moral demand for an exterior or public system of justice to protect it against unjust coercion. This system of justice is government. The moral demand arising out of the freedom of the will is the foundation of the moral duties and rights of government. It is not necessary to postulate a “social contract.”
A system of justice comprises minimally an authority possessing armed force, a monopoly of armed force within its own territory, courts of justice and an institution of punishment.
The creation of a system of justice does not require for its justification the consent of the people. Even if everybody in the society should be so corrupt as to reject it, it is still a demand of the moral order, arising out of the freedom of the human will, that a system of justice should exist.
A community possessing its own system of justice, or government, is a political community. The punishment of injustice is an act of the political community. It is the purpose for which political communities exist, the maintenance of the peace. In some societies this community may be the tribe created by blood relationship. For us it is the state, the community created by the system of justice itself.
The purpose of a system of justice is to prevent or punish injustice. Since all injustice is a form of coercion, which can be countered only by just coercion, the purpose of a system of justice is to inflict coercion when necessary in order to prevent or punish unjust coercion. This can be accomplished only by armed force and a monopoly of armed force within its territory. For a monopoly must be territorial. But this means that the system of justice is itself a very great potential threat to justice. The moral demand for a system of justice is therefore also a moral demand that the system of justice should be accountable to its citizens. This is the truth in democracy.
All injustice is coercive. This is universally recognized. For it is an inherent condition of injustice that the victim does not consent to it. If the victim consents to it, it is not unjust.
Coercion in itself is unjust. It negates and spurns the individual’s freedom of will, replacing it with the freedom and will of the agent, and thereby annuls and cancels out the victim’s human dignity, which is created by his freedom of will, treating him as if he were a mere object. Coercion by its nature is wrong.
But only coercion can protect against and overcome wrongful coercion, either by prevention or punishment. This makes the coercion used for that purpose legitimate. This is why everyone accepts it is permissible to use coercion to prevent or punish injustice.
A system of justice, that is, a government, is necessarily, therefore, a system of coercion. More than that, it must have a monopoly of coercive power. But though this coercion is legitimate, it remains an offense against human dignity. It is not something good and desirable in itself, as if we would still wish for it even though it was not necessary. Government, like the punishment of crime, is a necessary evil.
The moral rights of government are limited to the use of coercion necessary to overcome unjust coercion by prevention or punishment, i.e. aggression foreign or domestic.
These rights are not slight. They include the legislative and executive offices of the state, the military establishment, the system of courts, police and prisons, as well as the many other means that are necessary or considered desirable for the task of protection against unjust coercion to be carried out well. They include the right to demand, when necessary, the supreme sacrifice of the individual citizen’s life in time of war. But for coercion to be used legitimately there must be some genuine connection of necessity or desirability to the task of protection against unjust coercion.
Of course, government can also do all those things that noncoercive agents can do, such as buying, selling and offering employment.
This is a difficult and complex question. It seems there are two components of it: there is moral legitimacy and what we might call de facto legitimacy. What I mean is that a government may lose its moral legitimacy, for example by its public injustice, and so may lose the consent and moral support of its people, but if there is no actual alternative political power available to take over the reins of government from it, it will remain the recognized government.
Whoever has de facto a monopoly of coercive power in a society is the de facto government. This is true, whether or not they wield a true system of justice. Unjust government is still government. But what justifies a government is the justice of its system of justice.
Whoever sets up or maintains a just system of justice for a people is their legitimate ruler (Taparelli, de Maistre). But legitimacy is relative to the circumstances.
Most governments in history have not rested on the prior consent of the people. Predominantly governments have been instituted by military leaders using military force. Nobody asks the American people of the present day whether they consent to the Constitution. The War of Independence itself was probably supported by less than half of the colonial population. Although, given the institution of the American presidency, voting for a candidate indicates support for the candidate, it does not necessarily indicate support for the presidency as an institution. Perhaps if the people were offered a choice between it and a parliamentary system they would choose the latter.
No doubt it is in many respects an ideal that government should enjoy the consent of the people. But this depends on the kind of government and the kind of people. A Taliban government might have the support of a Taliban people, but that would not necessarily be an ideal for everyone else.
Some philosophers, assuming the consent of the people was necessary and sufficient for the legitimacy of government, have had recourse to the idea of “implicit consent,” said to be given by the fact that people make use of the society. But, as we have seen from the case of terrorists, it is possible to live in a society and make daily use of it without giving such consent. To require consent as a condition of legitimate government would be to invalidate most governments in history. The moral demand for a government, or system of justice, arises as a moral necessity out of the freedom of the human will. If a government is once set up, it is sufficient for its continued existence if there is no successful rebellion — something quite different from positive consent.
The traditional concept of sovereignty is that in every political society there must be an ultimate authority. But in modern democratic societies it is difficult, if not impossible, to identify any such authority, since every authority is held in check by another.
But a nation can be sovereign in the sense that its government is not subordinate to any other government. Locke rightly argued that this is an indispensable condition of government. In the European Union at the present time it is being called into question, or rather, it is simply being ignored.
A sovereign state is a genuine community, and a unique species of community. Although it is far from being a family, since its aim is justice and it is created and sustained by coercion, it can occupy a place in the hearts of its people that is in some ways analogous to that of a family. It enters into the self-understanding of its individual citizens, conferring a basic personal identity on them. One identifies oneself to the world as an American, an Englishman, a Frenchman. These are not merely extrinsic denominations but designate a particular kind of person, a mode of being human which has been fashioned by its history. Political communities of long standing tend to develop their own cultures, in virtue of their distinctive laws and customs.
The right of defense against injustice, that is, against aggression foreign or domestic, constitutes the core of the political community. But this right of defense includes, as just noted, the right to demand the ultimate sacrifice from its citizens in war.
What finally enables the regime or governmental system to continue in existence, then, is only the loyalty, attachment and even love of its citizens. This is above all a question of feeling, of emotional participation. It is nourished by tradition and culture, and overthrown by disaffection and successful rebellion.
The Limits of Government
Every government exists by the use of coercion, and it exists for the purpose of using coercion. Whatever its design, it is designed for that purpose. To superficial observers it seems a powerful force for almost any purpose. But coercion is good only for one purpose: countering unjust coercion. This is something it can achieve. Used for any other purpose, coercion condemns itself to failure. Whatever gains it may achieve will be more than offset by its losses.
Government intervention in the market invariably exemplifies this truth. The market is by definition the realm of free exchange. A genuine market price is always only a voluntary price, a price set by the agreement of voluntary agents. If government attempts to use its power of coercion to influence prices, whether to raise wages or to lower prices, it causes the opposite effect from what it intends. It institutes a minimum wage in order to help the working class, but an immediate effect of a minimum wage is to reduce employment, as all those workers whose labor was not worth the minimum wage lose their jobs. This is a disaster for the working class. Those who are fortunate enough to keep their jobs will benefit for the time being; but the other workers, as well as the owners of the business, who must now pay more for their labor, and their customers, who must pay higher prices, will lose.
Similarly, if the coercive power of the law is used to lower prices, the effect of this is to create artificial demand, an apparent shortage or “bubble,” which eventually breaks under its own weight, creating artificially high prices or other equivalent costs.
Commerce is sufficiently regulated by the ordinary principles of justice which prohibit coercion. Any further regulation is in principle unjust, since it infringes without cause on people’s freedom of will. However, the ultimate power to decide what is required and what is not required in detail for a just administration of justice must reside with the government. For complex cases can arise, for example in time of war or because of special historical circumstances, where the right decision is not clear, yet a decision must be made.
To government’s double duties of defending the society against unjust aggression both foreign and domestic, Adam Smith adds a third: “the duty of erecting and maintaining certain public works and certain public institutions which it can never be for the interest of any individual, or small number of individuals, to erect and maintain; because the profit could never repay the expence to any individual or small number of individuals, though it may frequently do much more than repay it to a great society.” These public works, he explains, are such things as roads, bridges, canals and harbours which are necessary for commerce; the public institutions are schools. He raises no objection to any of these being provided by private persons if they are willing to do so. But he believes in most cases private persons will not be interested in providing them, and if they are to be provided it will only be by government. All of them, however, Smith maintains, can be supported by user fees without any necessity to employ taxes paid by the general public. He adds that they are all much better managed by local authorities rather than by the central government.
Some libertarians, such as Murray Rothbard, have questioned whether this third category belongs among the duties of government. But this question arises mainly where Smith’s conditions are not observed, that they are paid for by user fees and managed by local authorities. If Smith’s conditions are observed, these arrangements do not seem to be an infringement on liberty or contrary to justice, provided that these public works and institutions are accepted as being clearly for the benefit of all, as the ones that Smith discusses are, I believe.
Since taxation is coercive, it is subject in principle to the same moral limitations as government. It can be legitimate only when it is for the benefit of all taxpayers. But this is the case when it is to benefit the system of justice, which exists for the benefit of all.
The legitimate use of tax monies hinges on the difference between individual consent and collective consent. Collective consent occurs where the vote of more than half of the population commits the resources of all. Under what circumstances can this be legitimate? Only where the benefit is for all. This is the case with the administration of justice, as just pointed out.
But collective consent cannot justify the redistribution of property for the sake of creating economic equality, because this is not for the benefit of all, but benefits some at the expense of others.
There seem to be cases, however, where the expense is for the benefit only of some and not of all, yet collective consent is deemed sufficient by everyone. An example is the case of great natural catastrophes such as floods, earthquakes and tsunamis. In any particular case the benefit goes only to the victims. Yet everybody expects the government to come to the victims’ rescue, because it alone has the necessary power. Few if any dissent from this collective consent. Possibly this may be because it is considered ultimately for the benefit of all, since such catastrophes may happen to anyone.
But it is morally healthier for the society to establish effective private means to cope with such eventualities. This happens with flood insurance, which can be bought by individuals, though often provided by the state.
Is there a moral obligation to obey the law?
That depends on the law. If the law simply enforces the natural law, i.e. the principle of justice that coercion is not to be used except to prevent or punish unjust coercion, then it must be obeyed, but this is because the natural law must be obeyed.
If the law is contrary to the natural law, then it must not be obeyed. If it is neither of these, but disobedience would endanger others because they are entitled to expect it will be obeyed, then it must be obeyed, because the natural law requires that. As an example, the rule that in the U.S. we must drive on the right side of the road neither enforces the natural law nor contradicts it, but if we drive on the left we endanger others because they are entitled to expect the rule will be obeyed.
Helping the poor, equality
Need cannot create a right. Even extreme need cannot do so. The basic reason is that need, in the case of adults, is subjective. I may consider that you need something, but you may reject that view. This question will be discussed in more detail in the coming lecture on “social justice.” The need of children creates a right against their parents, but not against the civil society.
Government does not have the responsibility of producing the positive well-being of the people. But it has the responsibility of not hindering it, and of protecting it against injury.
 The idea of a social contract was developed by such philosophers as Hobbes, Locke and Rousseau to justify the existence of government on the ground that the people have assented to it, at least implicitly. Many philosophers still hold some version of this view. But with most societies there is little or no historical evidence of such assent.