The State by Anthony de Jasay (12 page)

1. A less hopeful view of the morphology of the state sees a rub in this. Appeal from one instance of the state to another in general, and the independence of the judiciary in particular, presuppose the very conditions they are designed to ensure, like the raincoat which only keeps you dry in dry weather. Appeal within the state is fine if there are good ministers serving a good king and government is by and large benign. The judiciary is definitely a safeguard against the executive as long as the executive lets it be, but it has no powers to enforce its own independence. Like the Pope, it has no divisions, and like him, it cannot behave in temporal matters as if it had many. Its capacity to defy an executive unwilling to take defiance, is in the last analysis nothing but a dim reflection of the chances of successful popular revolt on its behalf-chances which are themselves usually the fainter the more the independence of the judiciary is waning. The 1770-1 clash between the French magistrature and the monarchy is a telling example of the point I am making. The parlements, in defying the king, had expected a broad popular clientele to stand behind them, but few would stick their necks out on their side. The magistrates, of course, actually owned their offices. They were nationalized and reimbursed. The new magistrates, chosen from among the old, became salaried officers of the king. They were assured security of tenure, presumably to ensure their independence!
   
 

2. The state may, of course, consider it positively useful to give its judiciary a measure of independence for ulterior reasons (cf. pp. 209-11). On the other hand, it may also do so because, its ends being quite restricted and "meta-political," it sees no particular
   

point in having a subservient judiciary. Seeing no such point may perhaps be a serviceable preliminary criterion of the benignity of the state. Reflection will show, however, that ultimately such a criterion is not serviceable, for while guaranteeing the rule of law, it may just guarantee the rule of bad law (and a state which is bound by its own bad laws, though better than the state that readily subordinates or adjusts law to reason-of-state, is not benign). However, at least it clarifies the relation between the independence of the judiciary and the state's purposes. The former cannot purify the latter. The judiciary cannot render the state benign to ensure and perpetuate its own independence, any more than the proverbial man can lift himself by his own bootstraps.*49

1. The separation-of-powers argument, once invoked, all too easily leads straight to the muddle of supposing the state to be benign because powers within it are separate, though causation runs the other way and only the other way; powers are genuinely separate only if the state is benign. We can, of course, tediously keep reminding ourselves that some powers are more real than others and that the test of reality is the ability of one to coerce the other, even if push never comes to shove because the latent chance of the use of force may always keep paper power in its place. Viewing the state as a plurality of instances including the caucus of the ruling party, the kitchen cabinet and the political police as well as the Weights and Measures Department, may save us from the sinful use of holistic, "systematically misleading expressions,"*50 but for our present purpose the assumption of a homogeneous body and a single directing will, to which one appeals and against which one does not, is going to obviate much wearisome repetition.
   
 

Any state obtains obedience in one of three ways. The most straight-forward and historically often the first way is the threat of outright punishment which is implicit in the state's superior command over means of repression. The least straightforward and transparent way is the establishment of its legitimacy. For the present purpose, legitimacy will be taken to mean the propensity of its subjects to obey its commands in the absence of either punishments or rewards for doing so.

1. A little elaboration may be called for. It will be remarked that such a definition makes legitimacy, not an attribute of the state, but a state of mind of its subjects. Depending on history, race, culture or economic organization, one people may accept a given state as legitimate while another would, if it could, reject it as a hateful tyranny. Foreign conquerors bringing progressive government to a benighted race exploited by its own ruling class, seldom have the tact and patience needed to become legitimate. There may also be some truth in the belief that some people are more governable than others, so that White Russians, with their reputation for meekness, may have recognized as legitimate, and fairly willingly obeyed, each of the successive and quite different states represented by Lithuanian, Polish and Great Russian rule. On the other hand, people on the Celtic fringes seldom feel that the state deserves their obedience no matter what it does either for them or to them. In France, where rule by divine right had a long gestation and after a period of conceptual muddle came to dominate political consciousness roughly from Henri II to Louis XIV, it was yet contested throughout by both Huguenot and Ultramontane ideologists and was twice near-fatally defied, by the League under Henri III and by the Fronde under Mazarin. If this proves anything, it is that concessions to the most potent counterforces in society, and the groping for consensus, are no recipe for breeding legitimacy.
   
2. Hume, who was firmly unimpressed by contractarian political theory, held that even if the fathers obeyed the state because they had become parties to a social contract, they have not bound their sons; the latter obey out of habit. Habit is probably nine parts of any good explanation of political obedience, but it does not explain much of legitimacy. Habitual obedience may itself rest on latent threats of coercion, on a dim sense of repression lurking in the background, or on the political hedonism the sons inherited in the form of "common knowledge," from their contractarian fathers and which the state continued to nurture by an economical dripfeed of rewards.
   
 

1. Just as we want repression to be a logical limiting case of the spectrum of possible obedience-eliciting relations between state and subject, the case where unwilling people are all the time coerced by the threat of force to do the things the state wishes them to do and which they would not otherwise do, so we want legitimacy to be the limiting case at the opposite end, where the state can make people do things without possessing much in the way of the means of physical coercion or having many rewards to dispense. Thus when, in the Peasant Revolt of 1381, the young Richard II called out to the rebels: "Sirs, will you shoot your King? I am your captain, follow me,"*51 it was the force of legitimacy which turned around the bereaved and furious bands of Wat Tyler. The King had, for the short run that alone mattered in that fateful moment, neither armed force to set against them, nor bribes for soothing their grievances, and he threw them no scapegoat. He needed neither.
   
 

Nothing, obviously, could suit a rational state better than to become legitimate in this sense. The only exception would be the state for which coercion, rather than being a more or less costly means to get people to obey it, would actually be an end, a satisfaction. It is no doubt tempting to view the state of a stylized Caligula, a simplified Ivan the Terrible, an unsympathetic Committee of Public Safety or a schematic Stalin in this light. In reality, even where cruelty seems gratuitous and terror both redundant and of debatable efficacy, so that the observer would ascribe it to the perverse whim of a tyrant, in the mind of the perpetrators it may well have been the indispensable laying of a groundwork for future legitimacy. A case study of how Aztec Mexico, Inca Peru and nineteenth-century Buganda attempted to legitimize their respective states in the face of a hostile and heterogeneous mass of subjects, concludes that "socialization involving benevolence and terror" were the principal ingredients of policy employed.*52 Others included the establishment of "patterns of deference-demeanour," the claiming of infallibility, the shaking up and mixing of ethnic groups and education for citizenship rather than for knowledge, so as to inculcate a liking for the state's own values.

2.1.12 Though many of the ingredients must crop up again and again, it seems doubtful whether there is really a recipe in statecraft for getting from repression to legitimacy. Certainly no obvious one seems to have a decent success ratio, for legitimacy has been rare and elusive throughout history, needing ingredients simply not available at the snap of the state's fingers. It took successful wars, prosperous peace, charismatic rulers, a great shared experience and perhaps, above all, continuity. The great value to the state of some undisputed rule of who gets the tenancy of power, like the Salic Law of dynastic succession, agreed and adhered to for some time and seen, like all good laws, to be impersonal and heedless of
the merits of rival contestants, is precisely to retrieve continuity (albeit only a dynastic one) from death. It is partly for this reason that while, in general, it is no easier for a state to attain complete legitimacy than for the camel to pass through the eye of the needle, it is yet a little harder for republics than for monarchies. (Few political arrangements seem less apt to foster legitimacy than frequent elections, especially presidential ones focusing on a passing person. Every so many years, controversy is stoked up, to the effect that A would be a good and B a bad President and vice versa. After it has reached great heat, the controversy is supposed to be settled, by a possibly infinitesimal margin of votes, in favour of the good or of the bad candidate!)

2.1.13 No state relies on repression alone and none enjoys perfect legitimacy. It is trite to say that neither can really be employed without some admixture of the other, the prevailing amalgam of repression and legitimacy in any state depending, as Marxists would say, "on the concrete historical situation." However, between the poles of coercion and divine right there has always been another element which is clearly neither: consent, historically perhaps the least important type of obedience-eliciting relation between state and subject, but perhaps the most fertile of recent consequences, particularly unintended ones. In early states, one can think of consent as binding only some minute but special group of subjects to the locus of the state's will. The war gang's obedience to a tribal leader or that of the praetorian guard to the Emperor may be examples of consent which border on complicity. Whether it is augurs, priests or officers of the state security police, the obedience of such small groups of people is a condition of the state's tenure of power; like a pulley for lifting great weights by small force, it can set off the processes of repression as well as those, never assured of success, of creating legitimacy. Yet their complicity and collaboration with the state's ends derives as a rule
neither from repression nor from legitimacy, but from an implicit contract with the state which sets them apart from other subjects and rewards them at the latter's expense in return for their willing obedience and consent to the state's power. Some intellectually quite intriguing, and in their effects most portentous, problems arise when the group thus set apart and rewarded, expands amoeba-like across society, with ever more people inside and less outside it, until in the theoretical limit everybody consents and everybody is rewarded for it but there is nobody left to bear the cost (cf. pp. 260-1).

1. Consent for our purpose is best defined as an accord between state and subject, revocable with little advance notice by either party, whereby the subject adopts some appropriate and favourable attitude ranging from active militant support to passive allegiance, and the state furthers the subject's specific ends up to limits which are constantly renegotiated and adjusted in the political process. It is very much less than the social contract, if only because it creates no new right or power for the state. It is not "social" because the civil party to it is never the whole of society, but merely the individual subject, group or class with motives and interests setting it apart from other individuals, groups or classes.
   
 

2. While the social contract treats the subject's life and property or (as in Rousseau) his general good, the contract of consent deals with his partial and piecemeal ends; both contracts attract the political hedonist, but in different ways. No continuing obligations are created by the contract of consent any more than by cash-and-carry transactions which do not bind the parties to repeat them.
   
 

Let us revert to the rewards of consent. When nanny and the children practise the politics of consent by agreeing that if the children will be good children this afternoon, there will be strawberry jam for tea, strawberry jam is within nanny's gift. In the short run, she can bestow it or not as she pleases. But the state has, generally speaking (and abstracting from such exotic and dated phenomena as strawberries grown on the royal domain) no rewards to bestow, no jam that is not already the jam of its subjects. Moreover, as I had occasion to point out in chapter 1, in the general case where its subjects are not unanimous in their conceptions of the good, the state can in the nature of the case only further its good which may, for all we know, be its conception of their good.

2.1.17 We have also noted that progressive assimilation of people's own ends to the ends selected and pursued by the state, i.e. the development of "false consciousness," can erode and at least in principle fully dissolve this contradiction. As Professor Ginsberg puts it in his Consequences of Consent: democratic elections "erode the adversary relationship between rulers and ruled... encourage citizens to believe that expansion of the state's power meant only an increase in the government's capacity to serve,"*53 and "modern democratic governments tend to increase their control over the public's putative means of controlling their actions."*54 However, the spread of false consciousness is neither a strong nor a sure enough mechanism for always securing the allegiance the state requires. First, it is not something the state can be confident of engendering unilaterally, at its sole volition, and certainly not over a short enough period. After all, it took almost a century from Jules Ferry's vast reforms creating universal lay state education to the emergence of a socialist electoral majority in France, and over the intervening turns and byways the ultimate result was at best only rather probable, never certain. Where an
ideologically not quite inept opposition exists, it can spoil the fresh growth of false consciousness as fast as the state is promoting it. Secondly, relying heavily on false consciousness is like "doing it with mirrors." The people the least likely to be taken in could well be the tough and hard-nosed sort whose support the state most needs.