As long as there have been rulers, rulers have found it more efficient to come up with some story explaining why they, and only they, had the right to rule than to simply dominate their subjects entirely through raw power.
In tribal societies, this wasn’t that hard; the rulers of a tribe were simply the oldest and therefore the wisest. Since tribal societies are usually also nomadic, this didn’t even pose a moral problem, since one could generally just leave and take their stuff with them if they didn’t like a tribe’s leaders. If enough families left, the tribe would end up collapsing, thus keeping leaders in line.
Once people started settling down to farm, rulers began to assert authority over territory rather than just over people. This made sense, because one of the functions people wanted of their rulers was to mediate land disputes, particularly in Egypt where the flooding of the Nile tended to obliterate property markers.
This also posed a problem. Once people had fixed assets they’d be leaving behind, rulers no longer had to work as hard to keep people happy. The main thing they had to worry about was being overthrown or assassinated. So they needed a new story to justify their authority. This story was, of course, religion, from the literal godhood of the Egyptian pharaohs to the Divine Right of Kings used under monotheistic religions.
The “top down” explanation of authority comes with problems of its own. It doesn’t work so well in cosmopolitan societies with multiple religions. Then there’s the problem of succession. Even under complex rules of hereditary succession, there can be infighting among possible heirs or situations where the ruler somehow doesn’t produce an heir. This often led to civil war and the collapse of the state.
Add to the succession problem the abuse of power, and it’s pretty obvious that a top down story simply isn’t going to work. And so we end up with the first of the bottom-up stories: The social contract theory of Hobbes.
During Hobbes’ time, contracts could be made binding upon one’s heirs. Modern contract theory requires that all parties to a contract consent to it without duress, requiring the idea of “tacit consent”: By simply remaining in a government’s territory, you consent to its authority.
With tacit consent alone, there’s no way to morally justify any kind of revolution, so the social contract required even more tweaking. This is where the idea of natural law comes in. A government must meet certain obligations in order to enjoy claiming the tacit consent of the inhabitants of the territory it claims.
But even then there are still serious problems, because it says that as long as a government follows natural law, it may prevent itself from being replaced. And since there’s not universal agreement on what natural law even means, this leaves us with the crappy situation we have now, where governments slowly get worse and worse until somebody overthrows them, frequently forming an even worse government or leaving a failed state.
Fortunately, a nineteenth century lawyer named Lysander Spooner gave us a solution to all these problems in his essay No Treason: Voluntarism. He basically said the United States government couldn’t have it both ways: Either the Revolutionary War was illegal and treasonous, making the Constitution and therefore the government carry no moral authority, or the secession of the Confederacy wasn’t, and the government couldn’t prosecute Confederate soldiers for treason.
Spooner argued that the Constitution wasn’t binding upon anyone who didn’t personally sign it, and that even someone who had somehow consented to it since then could withdraw their consent at any time. Spooner did feel there was such a thing as treason, but that it required using special privileges gained by pretending to consent to state authority against the state. The Confederate soldiers didn’t commit treason because the Confederacy declared its independence before engaging in any acts against the Union. Read the essay; it’s short, and I’m certainly not doing it justice here.
Note that voluntarism is quite different from the Sovereign Citizen movement. Sovereign Citizens use convoluted Constitutional arguments to justify their position, while Spooner was making a moral argument. They’re also playing a dangerous game, because they believe they can win court battles.
What kind of government could survive if it required ongoing, explicit consent of its citizens? To answer that, we need to take a look at tribalism again. That worked well with nomadic peoples, but fell apart when people settled down. But it fell apart because society lacked the institutions to deal with the issues of a sedentary people. In particular, there was no widely accepted theory about property rights or how to handle the initial allocation of land. Now that we have thousands of years of history of sedentary societies, we have a pretty good understanding of the best way to allocate and protect property.
The idea of natural law and the heritage of common law also provide a decent foundation for multiple “tribes” to coexist in the same area with compatible laws. Communications and transportation systems would allow “tribes” to be more spread out rather than needing to exist in one physically contiguous community. Think Distributed Republic.
Even territorial gangs aren’t constantly at war with one another. Imagine if they didn’t have territory to fight over, but instead needed to win hearts and minds. It’s possible a group might try to claim a particular territory, but it would be in the landowners’ interests to overthrow them, because they wouldn’t want to be stuck with a monopoly on the production of security. Molinari covers this exact problem, so if you haven’t yet read The Production of Security, I strongly encourage you to go read it.
Unit Two
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