The Ethics of Voting - Part II
by George H. Smith
In Part Two of this article I sketched a theory of institutional
analysis whereby individuals, filling institutional roles, contribute
unintentionally to the goals of an association (i.e., a designed
institution). Institutional analysis does not violate the principles of
methodological individualism. On the contrary, anarchist theory relies
on institutional analysis for its coherence. Anarchists who defend
political office-holding and electoral voting cannot reasonably do so
by opposing institutional analysis as such. Unless political
libertarians are willing to purge their vocabulary of all institutional
terms ("State," "society," the "market," etc.) and all institutional
propositions (e.g., "the State is invasive per se"), then their
objections to voluntaryist arguments will reek of insincerity.
Of course, it is possible to accept institutional analysis and yet
object to its particular application in the case against office-holding
and voting. This is the only viable approach open to political
Anarchists. Unfortunately, we possess no body of libertarian theory
which treats institutional analysis in detail, so a discussion of the
institutional features of voting requires considerable preliminary
groundwork. Having discussed some procedural issues in Part One and
institutional analysis in Part Two, I shall now explore how
institutional analysis applies specifically to the State and to offices
in the State. Then I shall move from institutional analysis considered
descriptively to the normative or moral implications of institutional
analysis. To what extent are those individuals who work within an
association morally and/or legally responsible for the institutional
products of that association? This thorny area is undoubtedly the most
complex and controversial aspect of institutional analysis, yet it must
be addressed if the moral implications of electoral voting are to be
flushed out. Anarchist theory will never advance beyond a rudimentary
level so long as this issue remains unresolved.
Modern States, I have argued, are designed institutions. They did not
emerge spontaneously from the unplanned coordination of individuals
pursuing disparate goals (such as in social division of labor). The
State resembles a business organization; it was designed and
established to achieve specific goals, and it has developed a
sophisticated division of labor which furthers these goals.
This does not mean that all features of the modern State are designed.
Economists point out that even rigidly structured business
organizations and political bureaucracies exhibit signs of spontaneous
order, often caused by internal competition for positions of prestige
and power. Nevertheless, there are crucial differences between
undesigned and designed institutions. Associations (designed
institutions) coordinate individual actions to further homogeneous and
predetermined goals. An auto factory, for instance, does not assemble
workers, allow them to do as they please, and then accept whatever
results from their unplanned interaction. Associations impose a
structure of internal organization, a division of labor, to achieve
particular goals. Any spontaneous order within the association is
subordinated to these goals.
Modern States, far from evolving spontaneously, arose from the desire
of political rulers to establish territorial sovereignty. The State's
spontaneous order occurs within these parameters. A State cannot allow
developments that weaken its territorial sovereignty; it reacts quickly
and decisively against all threats. The spontaneous order in society
generally, on the contrary, operates under no such constraints. Social
institutions may change drastically or die altogether without the
interposition of force to prevent these changes. A similar hands-off
policy is unthinkable for States.
8. "Invasive Per Se": The Minarchist-Anarchist Debate
The core of anarchism is the claim that the State is necessarily
invasive, or invasive per se. This is also the point of contention
between anarchism and minarchism. If the basic institutional purpose of
the State is one which could be accomplished by voluntary means, then
the State is not necessarily invasive. If one were to argue (however
implausibly) that the institutional purpose of the State is to deliver
mail, then the fact that existing States use invasive means (taxation
and a coercive monopoly) to provide this service would have no direct
bearing on the theoretical question of whether invasive means must be
employed to accomplish this goal. A totally voluntary mail service
could be established; and if mail delivery is the defining
characteristic of the State, then we have the theoretical possibility
of a "voluntary State." In this view, one could push for the
elimination of the invasive aspects of the current government until it
is pared down to its "proper" function of mail delivery. If we
substitute "defense of individual rights" for "mail delivery" (one is
as arbitrary as the other), we have the minarchist argument for the
possibility of a non-invasive State.
The anarchist rejects the argument that the basic institutional purpose
of the State is one which could theoretically be achieved by voluntary
means. The anarchist considers the fundamental purpose of the State to
be territorial sovereignty, and this is inherently invasive. Beginning
with the libertarian prohibition of invasive acts, the anarchist adds
the insight that the State is invasive per se — i.e., it must commit
invasive acts to fulfill its basic purpose. When the nonaggression
premise is applied to this view of the State, the consequence is a
total rejection of the State on libertarian grounds. Thus, as I argued
in Part One, anarchism is more than libertarianism. Anarchism is the
nonaggression axiom combined with a particular view of the State — a
view that relies on institutional analysis.
The minarchist-anarchist debate revolves around the essential (or
defining) purpose of government. Minarchists assert that the "proper"
function of government is defense of individual rights, broadly
conceived (police, military, and judicial system). But it is unclear
what "proper" means here. If it means "morally proper" — i.e., the
State cannot legitimately exceed these boundaries — then no anarchist
will disagree. No institution, by whatever name we call it, may
properly violate rights. But why the State should be the focus of
defense remains a puzzle. Minarchists must show that States were
designed (in a substantial number of cases) with the defense of rights
as a fundamental purpose. Unfortunately for them, history does not
smile on this thesis. Territorial sovereignty was clearly the purpose
leading to the organization and consolidation of modern States. This
required a monopoly of legitimized coercion to eliminate potential
competitors or those opposed to sovereignty altogether. The State's
monopoly on the means of coercion left it little choice but to provide
a semblance of defense for its subject. The provision of these
"services" plays an important role in legitimizing State rule (to
preserve "law and order"), without which mass compliance would be
difficult to achieve.
The anarchist thesis — that the State is invasive per se is an
institutional judgment. It attributes an invasive purpose not to every
person who joins the State but to the institution itself. Most of the
State's members may not personally care care about,or even know of,
arcane subjects like territorial sovereignty. They may work for the
State just to make a living. Others may find satisfaction in wielding
power, and still others may have the sincere desire to accomplish
something worthwhile. Political libertarians usually fall in the latter
category. They see themselves as harbingers of freedom. When it is
pointed out that their personal intentions — why they choose to join
the State — are an issue distinct from their objective role within the
State apparatus; and when it is argued that, insofar as they fulfill
their roles as political office-holders, they thereby contribute to the
institutional goals of the State, they protest that they do not
personally aggress against anyone. Short of catching them with a
smoking revolver, they claim exemption from the anarchist curse of the
State and its agents. (Never mind that the smoking revolver test would
exonerate the vast majority of State employees from personal liability;
such inconvenient details are passed over by the political anarchist.)
The political anarchist professes to "hate the State" while avoiding a
clear identification of who, or what, constitutes "the State."
Understandably, he does not wish to agonize over how to exempt
libertarian members of the State from his supposed disdain. The
political anarchist "hates" the State but seems to "love" the political
offices that comprise the State. How the State is anything more than
the combination of these offices acting in concert to attain
institutional goals, is yet another mystery. If consistency is too much
to expect of political anarchists, they might at least explain what
they mean when they say that the State is invasive per se.
9. A Moral Problem
Political anarchists sometimes speculate on which governmental
jobs they may consistently hold. They frequently distinguish between
jobs which are necessarily invasive (tax collection, conscription) and
jobs which, though financed coercively at present, would be permissible
in a free society (mail delivery, school teaching). This dichotomy
presumably answers the question of when libertarians may work for the
State. A libertarian could work for the post office, for example, since
mail delivery is not inherently invasive; but a libertarian could not
work for the Internal Revenue Service. In deciding whether a
libertarian could hold a political office, therefore, we should
determine to which of these categories the office belongs.
I have heard this argument many times, though it has not received much
attention in print. But the proposed criterion — distinguishing State
offices which are invasive per se creates serious difficulties for the
Consider the argument that anarchists should not work for the Internal
Revenue Service because tax collection is "invasive per se." Note how
this assertion immerses us in institutional analysis. For what does it
mean to say that the I.R.S. is "invasive per se"? It does not mean that
theft is the personal goal of every I.R.S. employee. Nor does it mean
that every I.R.S. employee personally aggresses. The secretary, the
file clerk, the accountant, the computer programmer — these and similar
I.R.S. jobs do not require aggression or threats of aggression.
Clearly, when the political anarchist says that the I.R.S. is invasive
per se, he means that the institutional purpose of the I.R.S. — the end
to which lesser roles contribute — is invasive per se. So if it is
impermissible for anarchists to work for the I.R.S., this is because
institutional roles (jobs) in the I.R.S. contribute to its invasive
purpose of theft — even though the roles themselves, considered in
isolation, do not require personal aggression by all employees.
The same argument applies to employment with the Selective Service,
drug enforcement agencies, and so forth. Only a minority of their
employees personally aggress. Yet it is generally assumed by political
anarchists that working for these invasive agencies violates
This line of reasoning has devastating implications for political
anarchism. An anarchist, it is said, cannot work for the I.R.S. or the
Selective Service because these agencies are "invasive per se." Yet we
have seen that the essence of anarchism lies in the claim that the
State itself is invasive per se. If the invasive nature of the I.R.S.
precludes anarchists working for it, then why doesn't the invasive
nature of the State preclude anarchists working for it as well? If
anarchists may not hire themselves out to the I.R.S. even if they avoid
personal acts of aggression, then neither may they hire themselves out
to the State in general — which is also invasive per se — even if they
likewise avoid personal acts of aggression.
The political anarchist cannot have it both ways. He cannot invoke the
"invasive per se" test with tax collection, conscription, drug
enforcement, etc., and yet disregard it for the State in general. The
political anarchist has two options: (1) He may deny that the State is
invasive per se, thus defining himself out of anarchism; or (2) he may
concede that an anarchist may properly work for an agency that is
invasive per se, so long as the anarchist does not personally aggress.
Neither of these options is very palatable. The first strips the
political anarchist of his anarchist credentials, while the second
opens a Pandora's Box of job opportunities for anarchists. If the
political anarchist seriously wishes to defend the propriety of
anarchists working for the I.R.S., Selective Service, drug enforcement,
the C.I.A. — the list goes on and on — then let him make his case.
The political anarchist is thus caught on the horns of a dilemma. He
cannot reject the "invasive per se" criterion for the State while using
it for particular agencies in the State. He cannot deny institutional
objections to political office-holding, invoking the smoking revolver
test instead, while advancing institutional objections against
particular State agencies, thereby discarding the smoking revolver test
when it suits his fancy.
Thus, either the political anarchist must become a voluntaryist, or he
must introduce new (and hitherto undreamed of) employment opportunities
for "anarchists." Either he must abandon the case for political
office-holding, or he must champion the legitimacy of anarchist
employment in a wide variety of repulsive agencies. The latter is the
only option short of capitulation.
10. Office-Holding and State Membership
The State, like all associations, has an identifiable
membership. The institutionalized power of the State is a scarce
resource; not everyone can benefit from its use simultaneously. The
fierce competition thus generated for the control of State power
necessitates membership criteria to restrict entry.
Membership criteria vary according to the form of government. An
accident of birth may qualify one for membership in hereditary
monarchies and aristocracies. Some forms of aristocracy encouraged the
sale of political offices ("venal offices"), which then could be
transferred like private property.
State membership in a democracy is theoretically bestowed by popular
election, or by appointment authorized by a duly elected official.
Whatever the membership requirements, an office-holder acquires special
privileges (legal rights) denied to the public at large. On the lower
levels of State employment, this privilege may be nothing more than a
claim on tax revenue in the form of a regular paycheck. As we ascend
the hierarchy of power, however, the privileges become more extensive.
Higher level office-holders enjoy considerable discretion in the
exercise of power.
This power may be unlimited, as in despotism, or restricted in some
fashion, as in a constitutional republic. But the privileges conferred
by State offices always entail legal rights denied to nonmembers.
Political office bestows power on the occupant of that office.
Bertrand de Jouvenal (The Pure Theory of Politics, Cam. bridge Univ.
Press, 1963, p.118) makes this point in an interesting way:
In the museum at Corinth there are two statues,
artistically worthless, which testify to the fashion under Roman rule
of setting up in a place of vantage the standing figure of the
governor. The sculptor has reproduced, with uninspired exactitude,
every detail of the military costume borne upon occasions of state by
the representative of the civitas imperans. Only the head is lacking,
nor is it by accident: a hollow between the shoulders reveals grooves
designed for the fitting of a removable head upon the massive body.
Thus were the citizens spared the expense of putting up a new statue to
honour a new governor: the old face was taken down and a new face was
set in its stead. This can serve to symbolize established Authority.
The statue has been set up at some previous time and lasts through many
generations; but the face must be that of a living and active
magistrate. The end of a life, or of a term, removes the transient head
from the enduring shoulders. There is now a void to be filled, an
opportunity for a new man to lift his head on to the shoulders of the
statue ... A complex political system comprises many statues, and the
procedures for lifting heads on to them are diverse.
The legal rights of high political offices in the United States are
determined primarily by the Constitution (including judicial
interpretations of the Constitution). We needn't engage in a lengthy
argument to show that political privileges thus acquired run contrary
to the principle of nonaggression. A reading of the Constitution alone
is sufficient. Art. I, Sect. 10, for example, vests in Congress the
power "To lay and collect taxes, duties, imposts, and excises ... To
regulate commerce with foreign nations ... To coin money ... To
establish post offices and build roads ... To declare war ... To
provide for calling forth the militia to execute the laws of the
Union," and so forth. To say, as does Art. I, Sect. I, that these
"powers" are "vested in" Congress means that the physical might of the
State will be used to back up Congressional decisions in these areas
should any citizens disobey or resist. Some members of the State, in
other words, will call on other members of the State (police, military,
etc.) to enforce their will.
Members of Congress have immense power; their decisions are backed by
the physical coercion of the State. If my neighbor decides to rob me,
it is unlikely that he can enlist the power the State to assist him.
But if a Senator decides to rob me (by voting for a tax bill), the full
weight of the State will fall on me should I resist.
Members of the State are thus allied in a common cause; they share an
enforcement mechanism whereby their decisions will be enforced at the
point of a gun. An office-holder has objective power commensurate with
his legal rights. The more privileges he enjoys, the more power he
wields. This power exists independently of what he decides to do with
it. It exists prior to any action he may take in office, because it is
inherent in the office. By the fact that an individual qualifies for an
office, he acquires the legal rights of that office.
Legal rights — privileges enforced by the State — exist apart from
their exercise, just as natural rights do. A man has a natural right,
say, to purchase an aardvark, even though he may never actually
purchase an aardvark in his life. The right exists whether he exercises
it or not.
Similarly, the office-holder acquires special legal rights which exist
independently of their exercise. The Senator, for example, has the
legal right to pass tax laws — meaning that the State will back him up
if he does so. A particular Senator (e.g., a libertarian) may never
actually vote for a tax bill, but he has the legal right nonetheless.
The privilege resides in the office.
A person elected to high political office allies himself with the power
of leviathan. He voluntarily seeks and successfully achieves the
privileges of political office which permit him to aggress against his
neighbors — privileges enforced by the State.
Such a person is a dangerous threat to innocent persons everywhere. Not
only has he captured a position of immense power, but he also swears an
oath of allegiance to the Constitution and accepts payment (i.e.,
stolen money) for "services rendered." When a person voluntarily seeks
and attains invasive power, swears to enforce the rules that maintain
his power, and receives a handsome salary to boot, the conclusion is
inescapable: this person has become a full-fledged member of the State.
He accepts its privileges, pledges his loyalty, and reaps its rewards.
The protest of the libertarian office-holder — that he intends to use
his power for beneficent ends — is beside the point. His actions speak
louder than words. He has joined the "ruling class."
11. The Ruling Class
In the tradition of Mosca and Pareto, libertarian anarchists
embrace a theory of the ruling class based on political, rather than
economic, criteria. Those who hold positions of significant political
power, according to this view, are members of the "ruling class."
Political anarchists are hard-pressed to reconcile their ruling class
theory with their advocacy of political action. Political criteria for
the ruling class will include libertarian politicians in their purview.
The specific behavior of politicians does not determine whether they
are part of the ruling elite. (A congressman does not leave the ruling
class when he votes correctly and re-enter when he votes incorrectly.)
Rather, those who hold significant positions of power in the State
belong to the ruling class, regardless of what they do with their
power. This includes libertarian office-holders.
Ruling class theory is just one of many areas where the political
anarchist dodges the implications of his own theories. Sooner or later
these issues must be confronted. Is the libertarian congressman
objectively a member of the ruling class? If not, why not? If so, then
presumably a "ruling class" is not necessarily evil or undesirable by
anarchist standards. This, too, requires some explaining.
12. The Paradox of Liability
In the earlier parts of this essay I touched on an important
subject without examining it in detail. Why is it, I asked, that
"anarchists often impute greatest liability to the highest levels of
political decision-making (presidents, legislators, etc.). even though
these levels are far removed from physical enforcement"? I suggested
that such judgments occur within an institutional framework, according
to the role played by political offices in sustaining State power. We
are now able to expand on this insight.
We are addressing what I call the "paradox of liability." As we ascend
the hierarchy of political offices we become more distant from the
enforcement arms of government. But we also come closer to those
persons who are, in a sense, most responsible for the State's invasive
activities. (As I pointed out in Part Two, "There were more
condemnations of President Johnson during the Vietnam War than of
individual bomber pilots.")
Perhaps ascribing liability to high political offices is a mistake.
Perhaps anarchists should blame only those who literally use physical
violence (which would exonerate Hitler, Stalin, and others of their
ilk). This approach causes more problems than it solves, however, not
the least of which is the gutting of anarchist theory. It is safe to
assume that most anarchists subscribe to some version of the liability
But does this paradox make sense? Should not the person who actually
commits a crime be more liable than the politician who authorizes or
commands it? In a sense, yes. A soldier who kills innocent civilians is
guilty of murder, pure and simple. He is fully liable for his action.
But the invasion of the individual soldier is relatively limited in
scope. He may murder, but he does not determine the policy that
authorizes murder on a vast scale. This is a privilege reserved for
high political office (in most cases).
In a war crimes trial, President Johnson would not be as liable for a
particular murder as the person who physically committed the act. But
Johnson shares some liability for a vast number of similar acts. His
degree of liability for a particular murder may be less, but his range
of liability is far greater.
Consider another example: the tax agent who physically expropriates the
property of a tax resister or drags him off to jail. Would congressmen
who support taxes be as culpable as the tax agent who actually commits
the foul deed? Probably not. They would be accomplices rather than
principals. But the congressmen are accomplices to many such invasive
acts — far more than can be perpetrated by a single agent. Although the
degree of liability may be less for the congressmen than for the
perpetrator, the scope of liability is far greater.
This is only a suggestion. A libertarian theory of liability awaits
more work before any solution to the liability paradox can hope to be
securely grounded. But I think my suggestion is a plausible step in the
right direction. Its two components may be summarized as follows:
First, high political offices possess greater power (more privileges
and wider discretion to dispense power) than enforcement personnel.
Fundamental decisions are made at this level; this is where invasive
Second, because the decisions of political office-holders are more
fundamental, they are also more general in scope than the decisions of
enforcement personnel. Their applicability is broader, because
political decisions reverberate throughout the State and throughout the
territory over which it claims sovereignty. Thus, when we say that
President Johnson was "more responsible" for murders than individual
bomber pilots, we mean:
(1) President Johnson, utilizing the power of his office, made fundamental decisions that set the State apparatus in motion.
(2) President Johnson was responsible, to whatever degree, for a
broader range of casualties (a greater number of murders) than any
individual bomber pilot.
13. Political Offices as the Manifestation of Sovereignty
The paradox of liability helps us to understand how political
offices bolster State sovereignty. High offices are distinguished by
their fundamentality and scope. Therefore, we may reasonably expect
territorial sovereignty — the fundamental goal of the State — to be
embodied in the most powerful offices. This is indeed what we find. The
guardianship of State sovereignty is the most significant institutional
role of high offices. They are designed to preserve and promote that
sovereignty; and this purpose is served regardless of who occupies the
office, so long as the occupant meets the demands of his job. (See the
discussion of the auto worker in Part Two.)
E.T. Hiller, in A Study in Principles of Sociology (Harper and Row,
1947, pp.581-6), describes the relation between offices and the
association they comprise:
Various functions are required to maintain an
association and promote its aims. These functions, when standardized,
constitute statuses which are usually referred to as offices. An office
consists of the delegated administrative, executive, supervisory, and
ceremonial functions belonging to an association (whether public or
private, official or voluntary). It comprises prescribed,
institutionalized duties and, comparable rights and privileges ... The
office is an expression of the special aim or aims of the association
... In each type of association the authority of an office is derived
from the aim to which the association is committed, the authority
proceeding from the higher to the lower ranking positions ... An office
... is an established system of social relations which constitutes a
part of the social organization. By entering [an office] the incumbent
is required to play the specified part in maintaining the given social
The highest legislative, executive, and judicial offices are the
incarnation of sovereignty. This was obvious to the framers of the
Constitution, even if it escapes many political libertarians.
Assertions of sovereignty precede the enumeration of powers for each
branch of government. To wit:
Art.I, Sect.I: "All legislative powers herein granted shall be vested in a Congress of the United States .. ."
Art.II, Sect.I: "The executive power shall be vested in a President of the United States of America."
Art.III, Sect.I: "The judicial power of the United States shall be
vested in one Supreme Court, and in such inferior courts as the
Congress may from time to time ordain and establish."
Note well the wording. "All legislative powers," "The executive power," "The judicial power."
An absolute monopoly of these functions is proclaimed at the outset — a
monopoly enforced at the point of a gun. No competition can ever be
permitted at this level. The State could abandon its monopoly on
virtually every "public service" and yet remain a sovereign entity. But
it cannot surrender its monopoly of political decision-making without
surrendering its sovereign lifeblood.
Major political offices thus embody the basic claim of sovereignty:
that members of the State have the sole legal right to rule a certain
territory. If power reflects a spirit of arrogance — the impertinence
that one person has the right to tell another person how to live — then
political office is the body in which that spirit dwells.
Suppose a libertarian Senator votes against every piece of invasive
legislation. Can he be held accountable for that legislation, if it
passes despite his opposition? No. But that Senator is responsible for
sustaining State power on a more fundamental, if less obvious, level.
In filling his role as Senator — taking his oath of office, exercising
his monopoly privilege to decide how we shall be ruled, etc. — he
furthers the basic institutional goal of the State: territorial
sovereignty. By accepting the framework in which the State operates, by
capitulating to its conditions and demands, by voluntarily joining the
"ruling class," thereby acquiring legal privileges backed by leviathan
— in a myriad of ways does the libertarian politician do all that the
State requires of him.
The libertarian politician, brimming with good intentions. believes
that he will use the State to further his ends. The sad truth is that
the State will use the libertarian politician to further its ends.
[ Part I ] —
[ Part II ] —
[ Part III ]