From a working paper of mine:
For Locke, the origin and purpose of government, and its only justification, is the protection of the individual’s rights to life, liberty, and property. If the state is to have any justification in light of a Lockean or Aristotelian liberalism, it will at least have to meet this criterion. A careful examination of the nature of the state, however, reveals that it cannot. Recall that the state is an organization that claims a territorial monopoly on the legal use of force and ultimate decision-making. Consider, also, that states generally acquire their revenue by physical coercion (taxation). Now, taxation is theft and therefore a violation of property rights. While it is conceivable that in principle a state could acquire its revenue purely from voluntary contributions, it would be a misnomer to call this taxation.40 If tax ‘contributions’ were truly voluntary, there would be no need to back up their collection with the threat or use of force. As a self-proclaimed territorial monopolist, even the most minimal libertarian state, should it seek to enforce its claim, must necessarily violate the rights of any of its rights-respecting subjects who prefer an alternative. When the state attempts to prohibit competitors in the voluntary production, purchase and sale of defense and legal services, it violates the rights of all the parties involved. Even if we put all this aside, no state known to history has been so constituted as to provide a reasonable assurance that the exercise of its power will not be arbitrary, that the laws it passes will be just, that it will not seek continually and increasingly to expand the size and scope of its activities beyond the protection of rights.
It would be correct to point out that none of the foregoing precludes the possibility of a state actually acquiring the explicit and unanimous consent of its subjects. It is, after all, conceivable that a state could, at least in principle, manage to do so. A few points can be made in reply. First, while this may in principle be possible, in actual practice such an occurrence is exceedingly unlikely and like to be of only transitory duration. Second, this in-principle-possibility is no justification of a state that does not have explicit and unanimous consent in reality. Third, as I mentioned above, although consent is necessary, it is not enough to justify the state, to make the state just. A state that has the explicit and unanimous consent of its subjects but violates the rights of other persons who are not its subjects is still unjust, as are its agents and supporters.
More to the point, a contract with the state is no more valid than, and is essentially the same as, a slavery contract.41,42 This is essentially because the state claims a territorial monopoly on the legal use of force and ultimate decision-making. In both cases (of state contracts and slavery contracts), to paraphrase Spooner, an individual delegates, or gives to another, a right of arbitrary dominion over himself, and this no one can do, for the right to liberty is inalienable. If the subject/slave later changes his mind, exit from the agreement would be barred to him by the terms of the contract; a state contract with the right of secession (down to the individual level), or a slavery contract with the right of exit, would be a contradiction in terms. Moreover, even if the contract stipulates what the state/master can or cannot do to the subject/slave, aside from those stipulations the state/master has been delegated or given arbitrary dominion over the subject/slave. If anything, the state contract is the worse of the two because states generally have greater power and perceived legitimacy than individual persons and private organizations. To whom does the subject turn when the state begins exceeding the limits of the contract?
For an explanation of why the right to liberty is inalienable, and why one cannot therefore delegate or give to another a right of arbitrary dominion over himself, two points can be made, the first suggestive and the second decisive.43 First, since we all have an obligation to live a life of eudaimonia, which requires self-directed action, person A cannot morally abdicate his responsibility by delegating or giving to person B a right of arbitrary dominion over himself. While this claim does not by itself establish the right to liberty or its inalienability, it does point out the moral impropriety on the part of the would-be subject/slave to enter into a state or slavery contract. Second, recall that for Aristotelian liberalism rights derive primarily from the moral agent’s obligation not to initiate aggression against other rational beings. Rights do not simply reside in the moral patient and thereby produce obligations for others. Person A’s right not to be aggressed against by person B cannot simply be abdicated by an act of will to B, for B’s obligation not to aggress against A depends on B’s calling as a human being, something which is not in the control of A. The right to liberty is therefore inalienable. It follows from this that both state contracts and slavery contracts are illegitimate because they are fraudulent on the part of the would-be subject/slave and more generally unjust on the part of the wouldbe state/master, for the former is attempting to transfer something that is not his to transfer and the latter is attempting to receive and exercise a power to which he has no right. The state, therefore, can never be just, even in the extremely unlikely event it should somehow garner the explicit and unanimous consent of its subjects.44,45 That the state is inherently unjust is a conceptual truth, whether any given organization in society counts as a state is a separate empirical matter that must be left up to analysis of history and the present. I dare say, however, that every one of the national governments currently existing is a state.
40 One possible means of voluntary revenue for the state that has been suggested is a lottery. However, one wonders how any state would effectively enforce its claim to a territorial monopoly with voluntary contributions as its only source of revenue. Hence, one sees in history the inherent tendency of states to impose and increase taxation on their subjects.
41 Henceforth, for lack of a better term, I will use “state contract” to refer to such explicit contracts with the state (in contradistinction with the implicit consent-based social ‘contract’.)
42 Locke’s contention that the people have a right to revolution because the relationship between a people and their state is contractual notwithstanding; that this ought to be the case is true. Moreover, a truly voluntary government will recognize an unlimited right of secession (making revolution unnecessary). But it is the argument of this and the previous section that Locke’s normative claim about states does not reflect reality – states do not behave as if their relationships with their people are contractual, and no such contract has ever been signed by all of the people in any case. Furthermore, it is not enough for the rights to secession and revolution to reside only in the people as a whole.
43 The argument that follows is heavily indebted to Roderick Long’s (1994/95) “Slavery Contracts and Inalienable Rights: A Formulation.”
44 This is not to say that everything a state may do or require of us is unjust.
45 If the foregoing has raised the worry that the Aristotelian liberal account of rights undermines the making of contracts in general, it is beyond the scope of this essay to allay those concerns but I happily refer the reader to Long (1994/95) wherein this worry has already deftly been dealt with. It also bears pointing out that a similar critique of the state can be made on purely Lockean grounds, although Locke’s conception of the inalienability of the right to liberty hinges upon God’s ownership of us rather than on a supply-side justice argument.
