The Role of the State

Posted to HotWired 28 May 98

The irony is, socialists and capitalists might actually agree on this one, at least in broad strokes. The devil is in the details.

For example, freedom is good. Both socialists and capitalists agree on this. It is true that the capitalist will accuse the socialist of repressing freedom, but also, in their own way, the socialists argue that capitalists repress freedom.

And what is freedom? For the most part, both socialists and capitalists follow the definition proposed by John Stuart Mill: freedom is the right to pursue one's own good in one's own way, so long as that pursuit does not infringe on another's right to do the same.

But as is pointed out elsewhere, one person's good is another person's nightmare. As was stated above, a pedophile's definition of good involves molesting young children. Such molestation violates the rights of the child, and so we, quite rightly, agree that the pedophile's behaviours must be limited in this case.

The role of government is to balance these conflicting rights. In the case of the pedophile, we assign government the responsibility of preventing, by force if necessary, the molesting of children.

The clear cut cases are easy. There is a wide range of behaviours both capitalists and socialists consider repugnant, including but not limited to, murder, cannibalism, rape, theft, arson, and the like.

The fuzzy cases are harder. A good example, also cited above, is pollution control. All humans produce waste, even if only in the form of exhaled air, which eventually impacts on another person, even if only in the form of bad breath. But at the other extreme, some humans produce waste which is injurious or deadly to other humans. So clearly some restraint is required, but also as clearly, such restraint should not apply to all cases. How to decide?

It is the adjudication of such cases to which we assign government the responsibility. This function, it should be noted, is a distinct function from the identification and prevention of violations, as described in the case above. That function is most properly called the executive function. The adjudicative function we will call the legislative function.

None of this is new to any of us. And as I said, in broad strokes, both capitalists and socialists agree on this formulation, to this point.

Where differences between the two philosophies occur, they occur in the description of the implementation of each of these two major functions.

For example, in the questions of crime and punishment, the domain of the executive function, some people may favour harsh and punative penalties, while others may favour mild and rehabilitative penalities. But this debate usually occurs quite outside the usual capitalism-socialism debate.

It is in legislative function where the major disputes occur. On what principle shall we determine where the rights of one person end and another's begin?

The principle usually adopted, also from John Stuart Mill, is the 'no harm principle'. Broadly stated, the 'no harm principle' stipulates that, so long as one person's behavious does not harm another, that behaviour ought to be allowed.

Capitalists adhere to this strictly. Socialists, however, tend to identify three areas of fuzziness.

First, socialists tend to include 'harm to oneself' as harm to another, and hence, tend to argue that persons ought to be prevented from harming themselves. For example, a socialist might be more prone to ban alcohol or gambling.

Second, socialists tend to include 'non-physical harm' as harm to another, and hence, tend to argue that various forms of speech and other behaviours ought to be prevented. For example, a socialist might be more prone to prohibit hate literature or foul language.

And third, socialists tend to include 'social harm', that is, harm to society as a whole, but not to any identifiable person, as harm to another, and hence, tend to argue that such social harms ought to be prevented. For example, a socialist might be more prone to promote animal rights or environmental protection.

Obviously, there is considerable cross-over. Many capitalists include instances of at least some of these three categories of wrongs. And many socialists do not include all instances of these three categories of wrongs.

It is the role of the legislative function of government to determine where in this range of possible offenses the line ought to be drawn, and to determine the means and amount of force required to enforce those decisions.

Government, properly conceived, ought to express the will of the people themselves with regard to those determinations. For example, in determining whether self-harming behaviours in general, and, say, drinking in particular, ought to be legal, government must consist of the method by which we sample the opinion of the people, and on that basis, express their will.

Both capitalists and socialists agree that the best method of doing so is democratically. This is what distinguishes capitalists from fascists, and socialists from communists. But given that this will ought to expressed democratically, the question arises: how?

Most countries' populations express their wills in two major ways: first, by electing representatives to speak for them and to vote in legislative assemblies, and second, by purchasing goods and otherwise supporting agencies they agree with (some naer-do-wells combine these methods, by purchasing votes, but this is generally frowned upon by both capitalists and socialists).

A socialists will tend to argue that only the former should prevail, that is, that the only instrument of public policy ought to be the vote. A capitalists will argue that both should prevail, that is, that a person's purchases are equally expressive and ought, in many instances, to be used instead of the vote (a pure capitalists will argue that the vote is not necessary, and that purchases themselves will determine the will of the people).

Importantly: insofar as capital, and not the vote, is used as a means of expressing the public will, the role of the vote, and hence of the legislative and executive function of government, is lessened. Hence, in the context of a capitalist-socialist debate, when the question is asked, what is the role of government, the question is in fact, how much of the public will ought to be expressed by the vote, and how much ought to be expressed by the spending of capital?

This is why each side accuses the other of being anti-democratic, and anti-freedom.

The socialist argues that capitalists undermine freedom and democracy by undermining the power of the vote. This allows some people to harm others in ways others cannot. The line between harm and non-harm is not set at a fixed point for all people.

This is clearest in the fuzzy cases. For example, consider the case of pollution. If the limit is set by legislation, then all people ahve the same right to pollute. However, if the limit is set by capital (as, for example, in the purchase of pollution credits), then some people are permitted to pollute while others do not have that right.

This distinction expresses itself also, but in a different way, even in the case of criminal prosecutions. A person who can spend capital to hire a good lawyer can get away with more than a person who cannot. In some cases (the name O.J. springs to mind), a person with enough capital can get away with murder. In civil cases, especially where non-physical harm is involved, the influence of capital over a person's rights is evident.

On the other side, capitalists argue that the socialists' approach restricts their rights. Insofar as the socialists is generally willing to include harm to oneself, non-physical, and social harms as harms (and insofar as people keep voting to include such in their jurisdictions' laws) capitalists see themselves as unreasonably limited by government.

A strong capitalist, for example, would argue that such matters as suicide, alcohol consumption, gambling, vulgarity, inflammatory speech, and the like ought most properly to be beyond the domain of government. And matters of social good promoted by government, such as schools, hospitals, roads, and even military or police, ought to be governed not by legislation but by private investment and capital.

The reasoning in all such cases is similar: if all such laws were removed from the books, in consequence no person would be harmed, and therefore, laws governing such matters are beyond the domain of government. Indeed, they continue, it is the obligation of the socialist to show how harm is prevented by any of these laws. The onus is not simply to show that more people voted for a piece of legislation - for that is irrelevant, since the vote is only a mechanism for expressing a will, like a poll - but rather, to show that some person's rights are or are not protected by a given piece of legislation.

And in fact both capitalists and socialists agree on this. They agree that the vote is not the final arbiter. They agree that no matter what the will of the people, one's rights cannot be violated. And as a consequence most countries encode these bodies of rights in such documents as the Magna Carta, the Bill of Rights, or the Canadian Charter of Rights and Freedoms.

But the history of such documents is an odd one. For charters of rights arise in the people's historical desire to protect itself from government, especially the non-democratic kind. In more democratic climes, charters of rights have also evolved to protect people what what Mill termed the 'tyranny of the majority'.

In the end, charters of rights are restrictive documents. They identify what harms a people will, under no circumstances, tolerate. And in some cases - such as the right to bear arms, or the right of assembly - they specify what they people may do in the protection of those rights.

As the capitalist approach to government is a minimalist approach, capitalists tend to view charters of rights as definining the role of government. If an action does not violate a right as set out in the charter of rights, they often argue, then government ought not enact a law restricting that action. Socialists, by contrast, see charters of rights as starting points. Other restrictions not envisioned by the charter of rights are permissible, if identifiable harm (broadly conceived) may be found.

The socialist, indeed, sould take this argument a step further. Charters of rights typically restrict only the actions of government. They do not restrict the actions of people. Thus, even given a charter of rights, people are not protected from the harm caused by other people. That is why additional legislation is required.

For example, while the Bill of Rights may protect Americans in their freedom of speech, it does not prevent companies from restricting the speech of their employees. A corporation is not directly governed by the Bill of Rights. A separate piece of legislation, explictly aimed at such instances, would have to be drafted in order to give employees the freedom of speech, particularly in their workplace.

Moreover, insofar as a charter of rights is only intended to prevent the government from doing harm, it does not express in a wider sense the sorts of harm from which a person ought to be protected. For example, the provision of an education falls outside this category. Hence, in typical charters of rights, the provision of an education is not a right. Hence additional laws must be enacted requiring that an education be provided.

In fact, both capitalists and socialists agree that additional legislation, to some degree, is required beyond the charter of rights. For example, both sides agree that a corporation's purchasing power ought not extend to permission to kill people, or plant plutonium in the city square, and the like. Both capitalists and socialists agree that there ought to be some legislation enacted to protect people from each other (as opposed to merely protecting people from government).

One (minimalist) proposal: that the charter of rights be extended to include all people, not just government, and that the role of government be restricted to enforcing the charter (as interpreted by the judiciary).

But which charter? The U.S. Bill of Rights is a very minimal document. The Canadian charter is more inclusive, but includes an opt-out clause. The United Nations Universal Declaration of Human Rights is a sweeping document, however, one which people would consider too generous if applied to all people, and not merely all governments. The Mulit-Lateral Agreement on Investment is a similar document, however, one which does not extend itself to the protection of citizens.

The truth - as always - lies somewhere between the extremes. What is needed is a more sweeping charter of rights and freedoms, trhan currently exists, one which explicitly limits the power of both legislations as expressed by the vote, and freedoms as expressed by the expense of capital. It ought to include the right to at least a minimal amount of self-expression, and the right to at least a minimal amount of capital. These minimums will in turn enable each person the right to participate in both forms of decision-making, and to be protected from both forms of repression.

Once such a document is in place, then the full and proper role of government can be defined as enforcing the charter - in effect, to a significant degree, terminating the legislative function of the government, expect for such minimal maintenance as the charter would require over the years. And that - both capitalists and socialists can agree - would be a good thing. Right?

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