The legitimacy in civil governance

The legitimacy in civil governance

legitimacy in civil governance

Christian libertarians, both anarchist and minarchist, hold to the necessity of civil law and order in a free society. Those who would violate the rights of others will always exist. These injustices require recompense through the administration of civil justice. This is the task of civil governance. A state is an organization that coercively maintains a monopoly of civil governance in a territory. The key question, and the principal disagreement between minarchism and anarchism, is whether the state is a legitimacy in civil governance?

John Locke, known primarily as the father of classical liberalism, was a Christian libertarian philosopher. His treatises of government have been used in support of the (limited) state as the only legitimate means of fulfilling the three requirements he lays out for civil governance in a free society.

Civil governance requires:

  1. Impartial judges
  2. A generally known and agreed-upon body of law
  3. Effective law enforcement

These correspond to the three functions of government: the judicial, for adjudication of disputes; the legislative, for the rules according to which adjudication is determined; and the executive, for enforcement of adjudicated rulings.

John Locke’s minarchism

Impartial Judges

Locke says that we need to have a state because, “men being partial to themselves, passion and revenge is very apt to carry them too far, and with too much heat in their own cases, as well as negligence and unconcernedness, make them too remiss in other men’s.” (Locke, Two Treatises of Government, ii.ix.125).

It is a fundamental principle of justice that one should not be a judge in one’s own case (that is, in one’s own dispute with another).

A generally known and agreed-upon law

Locke says that we need to have a state to provide “settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies….” (Locke, Two Treatises of Government, ii.ix.124).

While ignorance of the law may be no excuse, if there isn’t a relatively uniform law that is generally accessible, then the law isn’t really providing for order.

Effective Law Enforcement

Locke says that we need to have a state to provide “power to back and support the sentence when right, and to give it due execution.” (Locke, Two Treatises of Government, ii.ix.126).

If someone has been victimized, and a court finds the criminal guilty, and rules that the victim should be given just restitution and damages, it’s of no use unless the judgment is effectively enforced.

The minarchist view presented by Locke is that we need to have a state if we are to have civil governance at all.

Is Locke’s argument for minarchism irrefutable?

Locke’s position is that these three requirements for civil governance can only be accomplished through a state and are not achievable through statelessness. But does his conclusion logically follow from his arguments?

Does the state provide impartial judges?

The state, as a monopoly government, cannot be neutral. It must act as a judge in its own case. The nature of monopoly government is not one of neutrality. If it were, the state would cease to be the state.

Does the state provide generally known and agreed-upon law?

Minarchism begets conflict in the creation of law and the interpretation of justice. We see this in policy debates, partisan division, legal challenges, ongoing amendments, and even in scandals. Beyond that, states are constantly producing more and more laws (often unknown to lawmakers) through the bureaucracy. The state, as a monopoly government, has no incentive to keep laws within any kind of knowable limit.

Does the state provide effective law enforcement?

Effectiveness entails both the power to enforce and the constraint of that power. Abuse of power is inherent in monopolization of any industry. Though ideally, law enforcement is constrained by the law it enforces, this really depends on voluntary restraint by individuals in law enforcement. There is no built-in incentive to correct unrestrained individuals and agencies, particularly when a ‘brotherhood’ mentality reinforces unrestrained actions. Whenever there is monopoly enforcement, it becomes nearly impossible to defend one’s rights against it.

Reasons for anarchism

Christian libertarian anarchism denies that we need a state to have civil law and order. Instead, we argue for a stateless civil governance. That is, to administer civil justice, there should not be a monopoly government.

Without actually owning the territory, monopoly government is an act of aggression against persons and their property, so even a limited state is still illegitimate. In the same way that a monopolization of one service (e.g., health care), whereby one organization assumes exclusive authority to provide that service, is an act of aggression, so too is the monopolization of civil governance by the state (however limited it purports to be).

The need for impartial judges is a reason for statelessness.

It is fallacious to conclude that because we should appeal to a third party to adjudicate our disputes, that there must be only one third party anyone can appeal to. Stateless (non-monopoly) civil governance allows for more than one third party so that even those who adjudicate disputes do not end up being judges in their own cases.

The need for a generally agreed upon and known law is a reason for statelessness.

Statelessness provides the incentive necessary to keep the law within a knowable limit. Apart from a monopoly, there is high incentive to have uniform and known rules. Historically, this has been exactly the case, for example in the well-known and stateless Law Merchant.

The need for effective law enforcement is a reason for statelessness. 

Locke’s argument doesn’t take into account the emergence of organized enforcement. We already see this in the form of private security companies, and also in the case of more formidable defenses like the existence of citizen militias. Historically, there are a number of examples of stateless organizing for defense and enforcement, such as in the “Not So Wild” American frontier.

Legitimate civil governance requires statelessness

Christian libertarians who hold to minarchism and those who hold to anarchism all agree that law and order, the administration of civil justice, is necessary for a free society. But anarchism recognizes that even a minimal state is illegitimate because as a monopoly, it inherently aggresses against us. Moreover, the best reasons put forward in support of minarchism turn out to be very strong reasons for stateless civil governance.*

But does the sinful nature of mankind make civil governance a kind of necessary evil? This will be the topic of my next article.


*For more on this critique of Locke’s view:

  1. An Anarchist Legal Order (10 of 10 in a series on the Foundations of Libertarian Ethics), Roderick T. Long
  2. Market Anarchism and Constitutionalism, Roderick T. Long

The legitimacy in civil governance

Christian libertarians, both anarchist and minarchist, hold to the necessity of civil law and order in a free society. Those who would violate the rights of others will always exist. These injustices require recompense through the administration of civil justice. This is the task of civil governance. A state is an organization that coercively maintains a monopoly of civil governance in a territory. The key question, and the principal disagreement between minarchism and anarchism, is whether the state is a legitimate means to accomplish civil governance?

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B.A. in Philosophy from Arizona State University. My writing focuses on libertarian philosophy and reformed theology and aimed at the educated layperson. I am a confessionally Reformed Christian orthodox Presbyterian in the tradition of J. Gresham Machen (1881 – 1937)

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