This is the third essay in the series. It’s in two parts, published separately. Part 1 looks at what such a system of minimal government ought to do, and gives a list of things it must not do. And in part 2, I’ll try to suggest some ingredients, and perhaps even some recipes, for better government. “The Minarchist’s Cookbook,” if you will.
The state does not provide good government
I’ll begin with a brief recap on the political state as it exists today.
Territorial nation states and the idea of “sovereignty,” as I’ve pointed out before ([3]), are rooted in a 16th-century attempt to increase the power of the French king. The idea is that the state permits a “sovereign” ruling élite to do to its “subjects” – that’s us human beings – whatever they reckon they can get away with. Including making bad laws to bind us, levying taxes, and starting wars. Furthermore, the sovereign isn’t bound by the laws it makes. It bears no responsibility for the results of its actions. And there is no come-back against it for anyone.
I’m not sure this concept was really workable, even back then. But our human civilization has grown, changed and progressed enormously in the last 400 years and more. As a result, the state as a means of legitimizing political government is now several centuries past its last use by date. Of course, over time we’ve tried various bags on the side of the state – like “representative” parliaments and “democracy” – in an effort to mitigate its worst effects. But they haven’t worked. Indeed, parliaments today in many countries – and, in particular, in the UK – are out of control. And it’s possible to argue that, over the last 150 years or so, democracy has tended to make things worse, not better.
Moreover, the human mind set has changed over the centuries. Most of all through the ideas of the Enlightenment, which began to spread in the late 17th century through the work of thinkers such as John Locke. The Enlightenment originated or promoted many fresh, good, progressive ideas. Such as: Logic and reason. The scientific method. Individual rights; and in particular, the rights to life, liberty and property. Freedom of thought and speech. The rule of law. Religious and political tolerance. The essential goodness of human nature, and a desire for human progress.
But today, we face an anti-Enlightenment backlash. It comes from both the left and the right of the political spectrum, as well as from those that claim to be in between. Many, perhaps most, among today’s intellectual and political élites seek to relentlessly increase the power of the state. And they use that power to impose on us civilized people, against our wills, policies harmful to us. They have no concern at all either for Enlightenment values, or for those of us who uphold them. Nor do they have much, if any, concern for truth, or for ethical ideas of right and wrong. And the behaviours of all the major political parties reflect their lack of any such concerns.
Thus, as is painfully obvious today, the state fails to deliver good government or anything like it.
The idea of good governance
Now, I’ll explore the idea of a civilized community without a state, and with only a minimum of government, serving its people rather than ruling over them. Such an order could help to provide a stepping stone between today’s political states and the fully fledged private law societies in reference [2]. I’ll assume that such a community will, like today’s states, have a defined territory or jurisdiction; if only because, for a while, it will need to co-exist with territorial states.
And it will have what, to distinguish it from today’s political governments, I’ll call governance. That is, an institution authorized by the civilized people in its jurisdiction to exercise the minimum of power necessary to defend peace and their rights and freedoms against those that violate, or seek to violate, that peace or those rights or freedoms. And, where required, to arbitrate justly on disputes between parties in the jurisdiction.
Furthermore, governance – like any other civilized institution – must adhere to one of the most fundamental of all ethical rules: “First, do no harm.” This is, of course, the Hippocratic oath for doctors. But it applies equally to any institution intended to be for the benefit of all. Therefore, governance must obey this principle towards all in its jurisdiction; except, of course, for those that commit aggressions, cause harm to others, or violate or seek to violate others’ rights. Governance must be a nett benefit to every individual who refrains from aggression, and from damaging or seeking to damage the lives of those who behave up to the same standards. To make this clear, when I use the word “governance” in this essay, I’ll usually call it “good governance.”
Community versus society
I’ll begin with an idea which may at first seem curious, but in reality is very significant.
The people in a given territory at a given time don’t necessarily form a society. For example, the group of people currently on the concourse at London’s Waterloo Station isn’t a society. They do form a community; a group of people with something in common. Many of them may share geographical, racial, cultural and perhaps economic ties, too. But even this does not make them into a society. Nor does it give them as a group any common will or purpose.
Thus any claim that the individuals in a jurisdiction, whether of good governance or of a political kind, thereby form a society, must be false. The idea that they, or some large subset of them, form a political society with some shared identity and purpose, is therefore also false. Yet today’s nation states claim exactly this.
Rooted as it is in the nature of civilized beings, and in the rights and obligations which flow from that nature, good governance is logically prior to any particular society. Thus there can be no “general will” or social objective, from which it can derive any purposes beyond the provision of good governance. So, in the context of good governance, conceits like “social contract,” “social responsibility,” “social justice,” “social democracy” and “social security” are utter nonsense.
What should good governance do?
Good governance has just three functions. First, to maintain peace. Second, to defend rights. And third, to resolve disputes justly. I’ll briefly discuss each in turn.
Now, much of what I have to say under these headings may seem non-controversial. For when I talk of good governance, I mean what government ought to be. Many of the matters I bring up here are already enshrined, supposedly, in the ways that Western, democratic governments are expected to behave towards citizens. But unfortunately, today’s governments are not what they ought to be. And that’s a big problem.
Peace
The first function of good governance is to maintain peace. That is, to minimize, and to seek as far as possible to eliminate, conflict.
Why is peace so important? First, because conflict kills. When a human being is killed in a conflict, not only is a life unnecessarily destroyed. But the individual’s future, and all their hopes and plans, are destroyed too. And worse, the potential value, which that individual might have created in the rest of his or her life, is lost. To everyone, and most of all to those closest to them.
Second, peace is important because conflict harms the human environment, above and beyond killing people. It causes injury, physical and mental. It shatters families and societies. It destroys well-being and happiness. It destroys property, and spreads hardship and poverty. It makes it all but impossible for individuals to plan for a better future.
Maintaining peace does not, however, mean that good governance must prohibit all violence in its jurisdiction. For, first, everyone has the right at need to use violence in self defence, or to defend, or help to defend, others against violent aggression. And second, everyone has the right at need to arrest, or to help to arrest, a suspect for the purpose of bringing that suspect to justice.
There’s a third case where violence may be necessary, too. This is where an individual or group from outside the jurisdiction uses violence against someone inside it. In this case, proportionate retaliation may be required. For this purpose, good governance will permit the use of weapons in defence, or in retaliation against aggression. It will also permit the arming and training of a decentralized volunteer militia, who will defend the members of the community when needed.
It’s a paradox inherent in politics that, in order to avoid war, you must be prepared for war. As long as one or more political states still exist, therefore, those in jurisdictions under good governance will need to retain some degree at least of military capability. That said, good governance must never use the military capability of its jurisdiction to commit any unprovoked aggression against anyone, either inside or outside the jurisdiction.
Defence of rights
The second function of good governance is to defend rights. Rights arise, as I discussed in reference [1], out of an expectation that all individuals should keep to a set of obligations of civilized and responsible behaviour. These obligations, in their turn, arise out of the nature of civilized beings. Because of this, the list of rights to be defended isn’t arbitrary. Rights don’t simply appear or disappear at the whim of some ruling cabal. But there’s room for argument about what exactly the list should be; and the list I gave is only a start. It’s certainly incomplete.
On the other side, the list of obligations, which good governance should enforce, isn’t arbitrary either. Though there is, of course, room for argument about just what level of failure to perform an obligation should be sufficient to warrant sanctions. But once such matters are agreed, there are only two circumstances in which rights and obligations can change. One is when new situations arise, which had not been foreseen. The other, far rarer, is when new knowledge becomes available about what the rights and obligations should be.
And it isn’t just actual harms, resulting from violations of rights, which can lead to sanction against the perpetrator. Mental state may need to be taken into account too. For example, an act accompanied by a clear intention to violate others’ rights can lead to sanction, even if the harm it was intended to cause does not actually come about. And if an act is irresponsible beyond the bounds of reason, and imposes on others a significant and unwarranted risk of violation of their rights, that also can lead to sanction. Put in more conventional terms, good governance can at need enforce, not only restitution for wrongs, but criminal penalties too if appropriate.
But there’s a major safeguard, which must operate before good governance can enforce any sanctions against those that have committed, or sought to commit, violations of others’ rights. That is, that the process of making the decision to authorize sanctions or not, and of how far any sanctions may go, must be entirely unbiased and objective. It must not be concerned with who the parties are, for example with their status in some society. It must concern itself only with what the parties do, as demonstrated by their actions and the attitudes they take to others’ rights.
And, as with all other decisions it makes, any such decision made by good governance must be made public, along with the reasoning which justifies it, in order that it can be reviewed by independent parties, and challenged if necessary.
Good governance must incorporate procedural safeguards, too. These are, in effect, rights which everyone has against governance as an institution, rather than against each other. Such as, for example: A right to due process of justice. A right against strict liability; there can be no crime without mens rea. A right to a speedy, fair, and public trial, and a full and public hearing. A right to be presumed innocent until proved guilty. A right not to be tried twice for the same offence. And a right against self incrimination; not to be compelled to be a witness against yourself.
Furthermore, the “do no harm” principle imposes very strict restrictions on what governance may do. For it implies that governance must not knowingly treat any individual worse than he or she treats others. In particular, it must never harm, or violate the rights of, those who do not themselves harm others or violate their rights. Thus many things, which today’s political governments routinely do – such as military aggressions, punitive or redistributory taxation, favouring some individuals or groups over others, or imposing political agendas on the population – will not happen under good governance.
Last, and perhaps most important, everyone in the employ of good governance must, at all times, perform their work to the very highest standards of honesty, integrity and objectivity.
Dispute resolution
The third function of good governance is to resolve disputes justly. Within this function there are, broadly, two kinds of disputes to be judged.
The first consists of cases where there has been objective harm to someone; whether physical, mental, financial, to the reputation or of some other kind. (This is independent of whether there may have been a criminal act too). The remedy in such cases is restitution. It is proper for good governance to determine, using objective, well defined and publicized standards, whether restitution from one party to the other is to be demanded in a particular case. And, if so, to determine its amount, and the conditions under which it must be provided.
The second kind of dispute concerns a perceived likelihood of present or future harm to one party, resulting from the actions or proposed actions of another party. There are two sub-cases here. The first is where the party tabling the dispute wishes to challenge actions proposed by others. The second is where the party tabling the dispute wishes to take an action, and the other party wishes to block it.
Here, there are at least three possible outcomes. One, the proposed actions might be disallowed, because the damage they cause to others is real and unjust. Two, the actions might be allowed, provided the party taking them provides suitable compensation to those adversely affected. Three, the actions might be allowed to proceed unencumbered.
The decision process in such a case may need to consider wider interests than just those of the immediate parties. A proposal to build a new road comes to mind as an example. But in any case, the result must be objectively just. To everyone affected. In a nutshell, good governance must always come down on the side of truth and justice, not the side of propaganda and politics.
What good governance must not do
Good governance has three functions: peace, defence of rights and just resolution of disputes. But it has only one purpose. And that purpose is to deliver good governance, and nothing else. Yet much – if not most – of the things today’s political governments do are, very much, not proper functions of good governance. Here’s a list of some of them.
It is not a function of good governance to start wars, to commit aggressions, or to agitate for war.
It is not a function of good governance to interfere with anyone’s right to self defence against aggressions, or with their right to associate for mutual defence.
It is not a function of good governance to harm or to restrain innocent people. Under good governance, individuals may only harm or restrain others if it is necessary to maintain peace, to defend others’ rights, or to resolve a dispute justly. Any contemplated harm or restraint, which is claimed to be justified by the auspices of good governance, must be subject to stringent safeguards. And the use of any such harms and restraints must be kept to the minimum.
It is not a function of good governance to treat any individual, in the round, worse than he or she treats others. Nor to violate in any way the rights or freedoms of those who do not violate others’ rights or freedoms.
It is not a function of good governance to subject people to cruel or unusual punishment, or to torture. Nor to punish anyone more severely than their conduct warrants. Nor to levy excessive bail or fines.
It is not a function of good governance to carry out surveillance of anyone, or to block, to intercept or to monitor anyone’s communications, without good, objective and provable evidence that they are a danger to others.
It is not a function of good governance to spy on people. Nor to set traps to catch people out.
It is not a function of good governance to search individuals or their property, or to seize any of their assets, without good, objective and provable cause.
It is not a function of good governance to lie, to deceive or mislead, or to suppress or attempt to suppress the truth. Nor to spread propaganda or “fake news.” Nor to seek to control people’s conduct through manipulating their emotions.
It is not a function of good governance to promote or to enforce any political agenda of any kind.
It is not a function of good governance to make legislation to constrain people’s lives. Nor to forbid any act which neither harms, nor significantly and provably endangers, anyone else. Nor to offer perverse incentives to make people behave in ways that are against their best interests.
It is not a function of good governance to favour some groups or individuals over others. For example, good governance must not discriminate, either against or in favour of an individual, on grounds of geographical origin, race, gender, religion or sexual orientation. It may discriminate only according to how individuals behave.
It is not a function of good governance either to reward cronies or to victimize scapegoats.
It is not a function of good governance to control, or to interfere in, the economy. Nor to interfere with any peaceful economic activity, which does not harm anyone against their will. Nor to obstruct anyone’s right to seek, or to carry out, work. Nor to suppress, or to put any obstacle in the way of, honest business. Nor to encourage people to become economically dependent on others. Nor to distort or to suppress the free market in any way, or to restrict anyone’s access to it.
It is not a function of good governance to take away, without their consent, wealth from those who have justly earned it. Nor to redistribute such wealth to those in its own employ, or to its cronies or cohorts, or to third parties (whether through bribes or other payments).
It is not a function of good governance to demand any kind of sacrifices from anyone, unless for a reason which is just, objectively true and provable.
It is not a function of good governance to promote or to discourage any particular lifestyle choices. Nor to impose disincentives on products or services which some perceive as “unhealthy,” “sinful” or “luxuries.”
It is not a function of good governance to take or to use anyone’s assets without compensation.
It is not a function of good governance to provide education, health care, transport or transport networks, emergency services, housing (whether subsidized or not), newspapers (“free” or otherwise), broadcasting, libraries, employment agencies, counselling, charity, insurance or savings schemes. Nor to provide any other goods or services beyond its remit of maintaining peace, defending rights and resolving disputes justly.
It is not a function of good governance to subsidize artistic or cultural works or movements.
It is not a function of good governance to undertake, or to subsidize, projects outside its jurisdiction.
It is not a function of good governance to provide financial instruments such as bonds or loans.
It is not a function of good governance to plan people’s lives. Good governance must always allow everyone maximum freedom to make their own plans, subject only to the effects of their conduct on others.
It is not a function of good governance to interfere with people passing across the boundaries of its jurisdiction. Except that entrants convicted of promoting, planning or carrying out aggressions or other criminal acts in the jurisdiction, may be expelled. And those, that have been convicted of real, non-political criminal acts in other jurisdictions, may be refused entry if appropriate.
It is not a function of good governance to interfere with goods passing across the boundaries of its jurisdiction, unless there is a provable intention to use them in acts of aggression or other criminal acts against people in the jurisdiction.
It is not a function of good governance to promote or to disparage any particular culture or religion. Nor to encourage the dilution or suppression of any particular culture or religion.
It is not a function of good governance to personify itself as “we.” Nor to claim that the people in its jurisdiction form a society. Nor to claim that it has any right to do anything beyond its remit of providing good governance. Nor to claim, or to try to claim, rights it denies to others. Nor to allow immunity to any of its functionaries from being brought to justice for their acts, and punished if they deserve it.
The difference between government and governance
To conclude the first part of this essay. Ultimately, the difference between political government and good governance is this. On the one hand, in a political government, an élite ruling class sets agendas to be imposed on all (except themselves and their cronies), and manages a framework to enforce them. On the other hand, good governance allows everyone to run their own lives in their own ways, within a framework set, not by a ruling class, but by the nature of civilized beings.
[1] http://www.honestcommonsense.co.uk/2016/04/rights-and-obligations.html
[2] http://www.honestcommonsense.co.uk/2016/11/conviviality.html
[3] http://www.honestcommonsense.co.uk/2015/06/the-unholy-trinity-collectivism.html
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