Two more Mr. Libertarians hold fast to the idea that government property is illegitimate, offering a new argument. I am grateful to both for their commentary and reasoned arguments.

Both think that governments can’t be legitimate if the major part of a group forms them. They condemn majority rule altogether. This view therefore condemns all governments as illegitimate because none stand any chance of being unanimously supported. In turn, this view promotes a no-government world. These ideas go against a great deal of political reality. For me, that’s a strike against deploying this argument.

As argument against majority rule, Mr. L1 notes that “In the past, in certain communities, the majority view might have been that chattel slavery was acceptable.” Mr. L2 similarly writes “If a majority voted to enslave people living in government projects for example, that would be illegitimate.”

I’m not endorsing majority rule as a rule of government law-making. I am suggesting that governments do govern groups. These groups accept government, even if not unanimously. To require unanimous consent would doom all governments. The very fact that governments everywhere exist suggests that if a major part of their citizens favors having a government, then that suffices to legitimize the government. Thereafter, once a government exists, majority rule is certainly not necessary. The ruling body may be a council (aristocracy) or a king (monarchy) or a people (democracy).

Well, they say in rebuttal, what if a major part of a group favors chattel slavery? Does that legitimize slavery? And if it does not, then how can it legitimize the city government? The answer, explained in detail below, is “No”, such a vote does not legitimize slavery, even if it were unanimous. The faults of slavery are independent of votes. And such a vote for slavery, one that doesn’t and can’t legitimize it, whether by majority or unanimously, also doesn’t rule out a legitimate government being formed by the major part of a group. Legalizing slavery and legalizing a government do not intersect, because the situations of rights in the two cases differ. Neither does the voting procedure unite them by lending or denying legitimacy to one or both.

Legalizing slavery is an attempt to deny that the actual relation of slave and master is that both are in a state of nature with respect to one another. It’s an attempt to turn the slave into property that lacks the rights available to everyone in the state of nature. Legalizing a government is a movement of a group out of the state of nature into a condition of government. These are two different kinds of actions.

I will contrast how Mr. L1 and Mr. L2, taking a libertarian approach, reject slavery with how Hobbes rejects slavery in his theory. Hobbes’s theory explains how slavery differs radically from the formation of government. The libertarian theory, by contrast, links them.

Both L1 and L2 argue for the slave’s natural rights. L1 argues that a majority vote would not legitimize slavery “objectively”. Presumably, he’s invoking a natural rights view of self-ownership.

L2 explicitly posits the supremacy of natural law: “Government ‘property’ is illegitimate and ill-defined because it’s contrary to natural law, which supersedes the false legitimacy of a voting majority. If a majority voted to enslave people living in government projects for example, that would be illegitimate.”

This anti-slavery argument is so strongly put, linking government and slavery illegitimacy, that it rules out any kind of morally-acceptable government, except one formed unanimously. If there is no unanimity, this argument deems government to be contrary to natural law. The unstated assumption is that property and property rights precede government. Self-ownership comes before government is formed. Slavery denies the slave’s self-ownership. By the same token, a government that’s less than unanimously supported violates property rights. This argument tosses out both slavery and government.

L2’s natural law argument is too strong, in my view, because it flies in the face of what we observe widely, which is that people accept governments, even if not in unanimity; and they accept inequitable laws too. But people also condemn slavery. The libertarian view is an ethical view that doesn’t explain the reality. And libertarians struggle to enlarge their following because the theory clashes with why governments are as they are and why people accept them.

To reject slavery without throwing out all government in the bath water, consider the theory of Thomas Hobbes. He argues that slaves are not part of the body politic, which is a group that forms a government legitimately. Slaves have been brought into a land against their wills. There is no consent of any kind on their part. This means that they are in a state of nature in relation to their masters. In that state, they retain their natural rights and they have no political obligations to their masters (citing Daniel Luban’s paper “Hobbesian Slavery“):

“Accordingly, and in stark contrast to the rest of the populace, slaves maintain a full and
unfettered right to resist their predicament, whether by flight or by outright violence. This basic doctrine is maintained with striking consistency throughout Hobbes’s major political works. In the Elements of Law, he writes that the slave retains ‘a right of delivering himself, if he can, by what means soever.’ In De Cive, he argues that ‘if they run away, or kill their master, they are not acting against the natural laws.’ And Leviathan states outright that slaves ‘have no obligation at all, but may break their bonds or the prison, and kill or carry away captive their master, justly.'”

In Hobbes, slavery finds no rationale or support from majority rule or any form of government. Yet his theory explains why legitimate governments arise. Majority rule is simply irrelevant to the case. The body politic could unanimously make slavery legal, but this would not alter the fact that slaves are in a state of nature vis-à-vis their masters. They are free to run away, rebel, or kill their masters, for that matter.

Not all libertarian theory rejects all governments as illegitimate.

The Best of Michael S. Rozeff