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Pursuing Justice in a Free Society : Part I The Power Principle

by Randy E. Barnett
Number 82 - Oct 1996

[Editor's Note: Because of its length, the second part of this article will appear in the next issue. The following excerpts were taken from the author's "Pursuing Justice in a Free Society: Part I, Power vs. Liberty," 4 Criminal Justice Ethics, Summer/Fall 1985, pp. 50-72. Footnotes have been deleted, although they appeared copiously in the original. The author is currently the Austin B. Fletcher Professor, School of Law, Boston University. Reprinted by permission of the author and The Institute of Criminal Justice Ethics, 989 Tenth Avenue, New York, NY 10019.]

The Power Principle specifies that there must be:

(a) one agency per unit of geography (a "monopoly")

(b) that is charged with authorizing the use of force ("power") and that

(c) the monopoly itself must be preserved by force ("coercively").

Hence what I call the Power Principle involves a belief in the need for a "coercive monopoly of power."

The Justifications of Power

The Power Principle may rest on any number of different grounds. In fact, most differences among competing political philosophies concern only disputes about the way in which the belief in the need for a coercive monopoly of power should be justified. However numerous these justifications may be, they seem to take two general forms: negative and positive.

1. The Negative Justifications of Power

Power for negative purposes can be identified with the Right. This approach specifies that a coercive monopoly of power is needed to preserve "civilization" and prevent social chaos; that without a coercive monopoly of power, people will give in to their animalistic side and engage in a social "war of all against all." Thus, it is argued that, to avoid such social degeneration, a central authority must outlaw certain kinds of conduct: The forcible interference with person and possessions should be prohibited, to be sure, but also included should be sexual conduct (for example, prostitution, pornography, homosexual conduct, and extramarital sexual relations), conduct that encourages "anti-social" beliefs (for example, religious "cults," unacceptable books and music, manners of dress, and public assembly), and behavior that is "destructive of values" (such as drug and alcohol consumption, gambling, pool rooms, video arcades, and rock and roll).

The image that best describes the world the Right sees as ultimately resulting from the absence of a coercive monopoly of power is one in which people are fornicating in public places with heroin needles hanging from their arms. To prevent this there must be a boss: a President, a Congress, a Supreme Court, or a Moral Majority.

2. The Positive Justifications of Power

The power of the Left is to ensure some positive concept of justice. According to this view, resources must be distributed among individuals in society according to some formula or, to use Nozick's term, a "pattern." Resources must be held, for example, according to some criterion of need, desert, or desires, or all holdings must be "equal" or "efficient"that is, distributed to their highest valued use. It is argued that without a coercive monopoly of power, actual distributions of resources will not be in accordance with the mandated pattern or principle.

Thus, in addition to prohibiting the forcible interference by some with the person and possessions of others, we must "regulate" economic transfers between individuals (e.g., by labor regulations, antitrust regulations, price or rent controls, and licensing schemes in various occupations), other social interactions (e.g., by quotas and affirmative action), consumptive activity (e.g., by food and drug regulation and the regulation of automobile design), and above all we must redistribute income (e.g., by tax and "welfare" laws). The image that best describes the world that the Left sees as resulting from the absence of a coercive monopoly of power is one in which unreconstructed Scrooge-like characters enslave or exploit helpless Cratchets and Tiny Tims at below subsistence wages in small, cold (or hot), dark rooms. To prevent this from happening, there must be a boss: a President, a Congress, a Supreme Court, or The People.

I have deliberately drawn each of these views as broadly as possible, so as to include most people somewhere. While ideologues exist on the Left and the Right, in the real world most people are "in the middle" in that they hold some mixture of these two general views. None of this is to say that all of the policies described above are unjustified or wrong or that these categories are inviolable. (Notice that the positive concern for efficient allocation of wealth is now associated with some on the Right. And recently something amounting to a new wave of puritanism on the Left can be observed emanating from the feminist movement.) Rather, the point is (a) that the belief in the correctness of these policies usually results from subscribing to one of these world views or some mixture of each; (b) that both positions view the natural result of individual choice to be bad; and (c) that both views arrive at essentially the same means, a coercive monopoly of power, to pursue their fundamentally different ends.

Problems with the Power Principle

So what? What is wrong with implementing a coercive monopoly of power to solve the myriad problems of society? Some important answers to this question lie beyond the scope of this article or the expertise of its author. However, the Power Principle contains certain inherent defects that, while not unknown, are normally ignored, probably because a coercive monopoly of power is so widely thought to be necessary that any difficulties it creates, even those of the most fundamental and serious nature, must simply be accepted as inevitable problems of social life. I shall here consider four difficulties: The first three are practical while the last is a moral one.

1. Practical Problems with the Power Principle

Believers in the Power Principle base their support on some version of the following factual assumption: Human beings are either essentially corrupt or corruptible, or they will, if given a chance, try to gain unfair advantage over each other. The sources of this belief are as varied as the believers. They range from the biblical notion of "original sin" to a "scientific" view of individuals as ruthless welfare maximizers. Whatever the source, adherents to the Power Principle conclude from this assumption that there must be a coercive monopoly of force to prevent this attribute of human behavior from creating the various social problems described in the previous section.

The practical problems with the Power Principle arise not because this assumption about human conduct is necessarily false. In truth, it is a quite plausible account of one tendency of human behavior. Rather, problems arise because the Power Principle is incapable of solving the problem for which it was invoked.

Indeed, the Power Principle cannot work because of the very problem it purports to solve.

An understanding of the practical problems with the Power Principle must begin with the observation that adherents to the Power Principle always invoke it for some purposes, but not for all purposes. They invariably claim that only certain purposes and not others can and should be effectively pursued by means of a coercive monopoly of force. (Only a committed totalitarian would maintain that such a monopoly should be used for any purpose whatsoever.) The problem for adherents to the Power Principle, however, is to show how the monopoly, once it is created, will be used to achieve only the "appropriate" ends. Not only has no society that has resorted to the Power Principle ever been successful at so limiting its use, virtually all have ended in tyranny; there are several good reasons why no society could ever be successful in the long run.

Who gets the power? Let us assume that it is true that human beings are either essentially corrupt or corruptible or that they will, if given a chance, try to gain unfair advantage over each other. Advocates of the Power Principle are immediately faced with a difficulty: Who is to get the power? Whoever it is must be a human being, so whoever is put in charge will be (by assumption) "essentially corrupt or corruptible or will try to take unfair advantage over others."

It would seem, therefore, that the proposed solution to the assumed problem is nothing short of folly. For the human beings who are put in control of the monopoly would have a far greater capability for corruption and advantage-taking than they would have as ordinary citizens. Whatever corruption or advantage-taking these people engage in is likely to be far greater than they would be able to engage in if deprived of their power. And by granting some a capability for greater gains from corruption and advantage-taking, the incentives for such conduct are greatly increased, thereby increasing both its frequency and its severity. In other words, given their capacity for corruption and advantage-taking, bad human beings are more dangerous with power than without it. The Power Principle, then, appears to immediately aggravate the very problem it was devised to solve.

Even if we soften the starting assumption so that it now specifies that only some human beings are essentially or potentially corrupt and then posit that only the good human beings will be put in charge of the monopoly, we still need a practical way of distinguishing the good people from the bad people. We have to specify those people who are to decide who gets the power and how to obtain and disseminate the information needed for them to distinguish the good from the bad. Some might argue that electing rulers for fixed terms is the best way to make such decisions. Even assuming that this method produces the correct initial allocation of power, however, it runs afoul of several further problems.

How do you maintain power in the hands of the good? Let us assume that the problem of who gets the power is somehow solved; that a way is discerned to select only (or mostly) the good people to hold power. Perhaps an election is held and the electorate makes the correct choice among potential rulers. A second practical problem now arises: How do we keep the evil people from eventually wresting control of the monopoly from the good? Remember we started with the assumption that all or perhaps many people are corrupt or will try to take unfair advantage over others, for which reason we need a coercive monopoly of force. However, the solution provided by the Power Principle solution creates an enormously attractive target of opportunity for those people in society who wish to take advantage of others, which might be called the "capture effect."

Maybe some of the bad people excluded from power will be content to try to privately exploit their fellow human beings. Inevitably, however, at least some of the more entrepreneurial of these people will recognize the enormous profit potential that would be derived from controlling the monopoly and publicly exploiting others. All that would be required to reap these profits is a strategy for capturing positions of power from those who currently possess it. The number of such strategies would be great. One obvious strategy that has been employed often especially in societies where rulers rule for indefinite periods, is simply to take over the monopoly by force. This strategy, however, entails considerable risks for those who would employ it. A much safer approach would be to assume the posture of a good person and get into power in a legitimate way (assuming that some such option exists). Or, alternatively, good people in power could be corrupted through bribery.

This last tactic reveals yet another very serious flaw in the power approach: the "corruption effect." Power itself has a corrupting influence. People who start out as good can become advantage-takers simply because, as monopoly holders, the temptations to do so are great and the risks of being caught are small. So, even assuming power has been allocated to good people, these people may not remain good for long.

The inherent instability of the Power Paradigm can be analogized to that of the policy of mutual assured destruction. Once a sufficiently serious mistake is made, the game is up. With nuclear weapons we risk the destruction of the planet. With the Power Paradigm we risk the institutionalized and legitimized misuse of power. Given the perquisites of power, bad rulers can be locked in place requiring nothing short of a revolution to remove them. What is the likelihood of forever making the correct choices in this winner-take-all game of picking rulers?

Another, most serious problem of a system of elections is that it must give rulers a very short-run perspective. Rulers, especially those who rule for fixed terms, have no way of capturing the long-run benefits of their policies. Good rulers will not survive to see the long run unless their policies appear to be working in the short run. Bad rulers must plunder while the plundering is good.

Finally, the balloting solution to the problem of who gets the power is itself undercut by our initial assumption that human beings are essentially corrupt or corruptible. For only human beings vote. A unanimous vote is a practical impossibility but, if anything less than unanimity is required to elect a ruler, the majority can (sooner or later) be expected to vote out of corrupt or advantage-taking motives. Saying that a constitution will solve this problem the problem of "the tyranny of the majority"is also unrealistic. Judges must interpret and enforce a constitution, and judges are also human beings, with the result that they would form a "tyranny of the judiciary."

The legitimacy of the power holders. Having failed to solve the problem of corruption and advantage-taking, the Power Principle exacerbates the problem still further by what might be called its "halo effect." A coercive monopoly of power would not be (peacefully) established unless most people in society were convinced that the creation of the monopoly of power is the right or expedient thing to do. Therefore, those who wield this power will possess not only power but something that may be more helpful to their pursuit of advantage-taking than power alone could ever be: They will have legitimacy. That is, their use of power will be perceived by most to be at least presumptively justified.

This "halo effect" obviously makes the assumption of power by the wrong people even more dangerous than just giving them a monopoly would be, because, for a variety of reasons, many good people will hesitate to oppose the "duly constituted authority." Perhaps they do not know the facts of the situation and therefore presume that those in power are correct, or perhaps they can see some personal advantage to a particular use of power against another, or perhaps they fear the consequences of "civil disobedience." Whatever their motives may be, this natural conservatism greatly increases the potential for corruption and advantage-taking .

It can be seen from this brief discussion that the Power Principle cannot solve the question of who gets the power without setting up an infinite regress (of sorts) of enhanced incentives for corruption and advantage-taking. The reason for this is that the weakness of human beings is exacerbated by a monopoly of power, but there is no other species that can be put in control of the monopoly. Therefore, one must forever propose "higher" authorities to ensure that subordinate authorities remain honest. One could posit that God (or a group of gods) would divinely rule the human rulers. I shall not here consider the practical problems with this approach.

The source of the unending problem with the Power Paradigm is its hierarchical and vertical approach to the problem of corruption and advantage-taking. No matter how high you build your hierarchy of power, there is simply no one to put on top of the hierarchy who will not himself be potentially corrupt. The answer to human corruption must, therefore, lie elsewhere. The next version of the Power Paradigm, though flawed, suggests that a more promising avenue is a non-hierarchical or horizontal approach to power.

Federalism and the Separation of Powers as a solution to these problems with the Power Principle. One attempt to deal with the problems created by the Power Principle is to create an oligopoly or a "shared" monopoly of power. This scheme preserves a monopoly of power but purports to divide this power among a number of groups, each having limited jurisdiction over the others. So, for example, there might be a division of powers between groups of people known as "state officials" and others called "federal officials." Or there might be a separation of powers between some people called "legislators" and others called "judges" or "executives."

The object of such schemes is to create so-called "checks and balances." This is a good idea. The problem with the Power Principle is not the recognition of the legitimate use of force or power itself. Those who reject the Power Principle are not necessarily pacifists, that is, they do not reject any right to use force under any circumstances. Rather, the root of the problem with the Power Principle is its adherence to a monopoly allocation of power with all the attendant problems discussed above. It is this that the Federalist and the Separation of Powers strategies are trying to address.

A formal separation of powers is unquestionably an improvement over other versions of the Power Principle, witness the experience of the United States, but eventually similar results are reached (though these results may not develop as quickly or be quite as severe.) This is because this scheme, for all its advantages, still preserves the unearned legitimacy of power and coercive barriers to entry. However many power centers are created, they remain in control indefinitely, short of a revolution.

Even in the beginning, since each has the other by the throat, no one is willing to squeeze too hard. Eventually entrepreneurs of powermaster politicians, judges, executives, or outsiders called "special interest groups"figure out a way to teach those who share the monopoly that it is in the interest of each to cooperate with the others in the use of force against those who are outside the monopoly. This process may take some time, but gradually what is originally conceived of as "checks and balances" eventually becomes a scheme more aptly described as "you don't step on my toes and I won't step on yours" or "you scratch my back, I'll scratch yours." And, when this result is reached, the Power Principle continues to provide these rulers with the legitimacy that makes corruption and advantage-taking all the easier.

The separation of powers strategy is a good idea, but one that is not taken quite far enough. What is needed is the recognition of genuinely separate powers within the same geographical area, a horizontal division of power with as little unearned legitimacy attached to each agency of force as possible. Such a system would provide real checks and balances. How such a system might function will be discussed in Part Two of this article.

2. The Moral Problem with the Power Principle

The moral problem with a coercive monopoly of power can be briefly described: The Power Principle posits a fundamental inequality of human beings. Those in power are thought to have qualitatively different rights than those who are not, that is, rulers have rights that subjects may never possess. By virtue of their monopoly status, at the very least they allegedly have the right to put competitors out of business, a right that is denied to other so-called "private" citizens. And most power schemes accord them the right to collect "taxes" to fund their activity, that is, to seize the property of others by force without the others' prior consent or wrongdoing, another right that is denied all people. Many grant them the right to obtain "conscript" or semi-slave labor for certain purposes such as war-making or jury selection.

Some schemes even accord those in power such arcane rights as the right to specify that people must accept monopoly script in return for their labor or property, known as "legal tender" laws, and the sole right to run certain businesses, such as the delivery of writings and packages, the driving of buses, or the picking up of garbage. Other schemes accord them the right to grant monopoly "franchises" to sell grain or to provide television or telephone services. Some give them the right to restrict access to certain occupations. Anyone who becomes a taxi driver, lawyer, or hairdresser without the approval of those who hold the monopoly may be fined or imprisoned. The potential that these powers have to induce the corruption and advantage-taking described above is here quite obvious.

In the next section I will try to give content to the claim that all persons have rights and also trace what the contours of these rights might be. But even if such a proposition can never be affirmatively demonstrated (although I am not suggesting that this is in fact the case), those who advocate a coercive monopoly of power to solve the problem of corruption and advantage-taking bear a heavy burden of proof. They must demonstrate that some people rightly hold power over others. The pursuit of this justification has spanned centuries, indeed, millennia of political theory. Thus far this claim remains unjustified. No moral theory attempting to justify a legal hierarchy among healthy adult human beings, such theories as "divine right," "social contract," or "natural law" has yet succeeded in doing so.

3. Conclusion

Adherents to the Power Principle have devised a rather peculiar way of dealing with the problem of human corruption and advantage-taking. They advocate giving some human beings a monopoly on the use of force, thereby elevating some human beings to a higher moral and legal status than others.

But no one can be sure to whom to give this monopoly. And, assuming that the initial allocation is made correctly, the alleged solution creates an irresistible target of opportunity for anyone in society who wishes to exploit another, and who is clever or ruthless enough to devise a way of capturing the monopoly that has been created. The monopoly also poses grave temptations to the good to become less than good, in short, the alleged solution to the problem of corruption is itself a most potent corrupting influence. Finally, in this scheme those who possess the monopoly, as a practical matter, are presumed to employ it properly, thus enhancing the ability of some to use the monopoly to take advantage of others.

While the shared monopoly concept gradually succumbs to the same problems as the pure monopoly concept, it succeeds both in highlighting the genuine problem with the Power Principle, the creation of the coercive monopoly of force, and the genuine solution to the problem of corruption and advantage-taking: a non-monopolistic system of force which could provide genuine checks and balances, but of a far more sophisticated variety than can be provided by any constitution. And the moral problem of inequality inherent in the Power Principle points the way to another facet of a genuine solution: an effort to craft a scheme of rights and obligations that all people can equally claim.

One must be careful to avoid attributing historical inevitability to the grave problems posed by the Power Principle. The argument presented here is that the Power Paradigm is inherently unstable and pernicious, as compared with a non-monopolistic legal order that will be described in Part Two of this article.