I believe that Michael Huemer’s The Problem of Political Authority is the most persuasive defense of market anarchism ever penned. And as someone attracted to market anarchism, I’m proud to recommend it as one of the most excellent representatives of this – often times wacky but always fun and insightful – sliver of the political spectrum.

And yet, I think the book has a serious flaw: it provides no account of the political authority of property rights under market anarchism. What is wanting in many libertarian political theories is the recognition that property rights are coercive and so stand in need of justification to others. Many arguments for state legitimacy begin by emphasizing the need for such justifications. I take most social contract theories (especially the classical versions) to be motivated by this problem. It is one that Huemer never seriously addresses.

As I wrote in my Rousseau post, when we make property claims, including in a market anarchist society, we demand that others refrain from interfering with our use of our (purported) justly acquired property. We typically insist on two claims: (i) that others have a moral duty to respect our property claims and (ii) that we may use coercion to deter or punish violators (and hire someone else to do so, like a private protection agency). In this way, I take it that we insist that property rights have a form of political authority that I will clarify below.

In light of this insistence, I submit the following thesis for your consideration:

If Huemer’s arguments against state political authority succeed, they also undermine the political authority of property rights under market anarchism.

If so, then both states and property institutions under market anarchy lack political authority. That’s a problem, one that gives us reason to take a generic modus tollens to Huemer’s modus ponens for anarchism, and so reject a premise of Huemer’s argument to avoid Huemer’s conclusion. I think the premise to reject is that all social contract theories of political authority fail. While I cannot prove this here, I think that contemporary “justificatory liberal” arguments for (limited) political authority succeed. And they succeed because they show that limited political authority is required in order for us to resolve, in a fair and just manner, disputes between free and equal persons that moral discourse and activity cannot solve by itself. Thus, limited political authority is a kind of benefit rather than a problem.

I. Political Authority and Property Rights

Huemer develops a clear, but deep elaboration of our intuitive understanding of political authority, understood as the authority of states. When a state has political authority, its dictates have five features: 1. Generality, 2. Particularity, 3. Content-Independence, 4. Comprehensiveness, 5. Supremacy (12-13). Briefly, a government has political authority when its dictates apply to all citizens within its territory and when its authority is not tied to the specific content of its laws or commands. Further, a government has political authority when its reach is comprehensive, permitting the regulation of a huge range of activities, and when it dictates are supreme, such that no higher human authority can countermand them.

Obviously property institutions in a market anarchist society cannot have all of these features. The authority that property rights give to persons and their representatives is not comprehensive; in fact, it is extremely restricted. For another, the authority of property institutions is not particular in the sense that it governs everyone in a territory. It is true that property institutions govern anyone using that property aside from the owner. But that’s not really what the particularity is supposed to concern.

That said, property institutions in a market anarchist society do share the other features of political authority with states. To see this, imagine that Reba has acquired her property rights in ways that libertarians think legitimate. If she has acquired her property in rights-respecting ways, then she is the proper owner. That means she has the right of exclusion: Reba can exclude others from using her property in ways that others do not consent to. In this case, Reba’s authority to coerce is general: it applies to anyone who would violate her rights. Second, while her authority does not give her the right to govern people not residing on her property (say her home or land), her authority is morally and forcefully efficacious on those who interact with her. She has authority over those who enter her justly acquired land and she can enforce voluntarily made contracts with others. Her authority is also content-independent: by and large, she can tell people not to violate her property rights based on any reason she wants and she can issue more or less whatever command she likes permitted by those rights. Finally, her property rights are supreme: there is no higher human authority than hers when it comes to her justly acquired property.

Notice that with the authority of property rights comes an account of political obligation. Others are obliged to comply with her rights-respecting commands and she can coerce them into compliance if she views them as a credible threat. If John wants to loiter on Reba’s property, he violates his obligation to Reba not to loiter and Reba can use force against John to stop him from loitering. A doctrine of political legitimacy follows as well, as Reba’s property claims are politically legitimate when acquired in rights-respecting ways, creating duties in others to obey her rights-respecting commands.

I submit, then, that Reba’s property claims are importantly parallel to the claims of political authority made by governments. So in this post, I shall simply speak of the “political authority” of property rights, without qualifiers. Also note that I am far from the first to draw an analogy between the claims of political authority and the authority private owners claim for their property.

II. The State/Property Analogy

With that, let’s quickly review Huemer’s criticisms of the mainstream theories of political authority and see if the criticisms succeed against the authority of property institutions as I describe them. The review covers chapters 2-5.

A. Traditional Social Contract Theory – On Huemer’s view, traditional social contract theory holds that political obligation is a species of contractual obligation: citizens obey the law because they have agreed to do so. But, Huemer convincingly argues, citizens have seldom explicitly agreed to government and cannot plausibly be thought to tacitly agree to them.

But: the same problems hold for the authority of property rights. Even if John and Reba engage in a rights-respecting transaction, their transaction, on libertarian political theory, creates a duty in Sarah not to interfere with their transaction. Why does Sarah have this duty? We can’t say that Sarah has the duty because she agreed to it, as people seldom consent to any system of property rights. Certainly no one consents to respect each individual transaction considered separately, for no one knows about all of the transactions. What’s more, she [Sarah] cannot plausibly be said to tacitly agree [to John and Reba’s transaction] for all the same reasons that she doesn’t tacitly agree to government.

B. Hypothetical Social Contract Theory – On Huemer’s interpretation, hypothetical social contract theory holds that political authority is justified because it is what people would agree to under hypothetical conditions, conditions that are often taken to require that consenters are rational, suitably informed, etc. But Huemer points out, again perceptively, that (i) hypothetical contractors will probably not agree on the same set of rules for the state to enforce and (ii) hypothetical consent is not morally efficacious in the face of actual dissent.

But: the same problems hold for the authority of property rights. If John and Reba engage in a rights-respecting transaction, their transaction creates a duty in Sarah not to interfere. Why does Sarah have that duty? Not because she would consent to it under hypothetical conditions. Perhaps Sarah is a reasonable non-libertarian; in that case, perhaps under hypothetical conditions she would not accept the duty that John and Reba create in her. What’s more, suppose Sarah actually dissents to take on the duty; in that case, hypothetical consent isn’t morally efficacious. And yet John and Reba are thought to have the right to coercively prevent Sarah from interfering with them.

C. The Authority of Democracy – A bunch of theories are covered in Chapter 4. Some hold, more or less, that democratic governments have political authority because unanimous consent isn’t feasible and majority consent is, so people should agree to follow majority consent. Another view, deliberative democracy, holds that democracy has authority insofar as it imposes laws that all endorse given suitably structured democratic deliberation. Huemer rejects both views, first because majority consent, in ordinary moral cases, arguably creates no duties in those who don’t consent, and second because deliberative democracy is a kind of fantasy – it hasn’t ever happened. It’s not even close to being true.

But: going back to Sarah, we can say the same thing about her duties to respect the property rights of Reba, and John. Majority consent won’t create duties in her, neither will a fantastic deliberative process that hasn’t happened.

Huemer spends the bulk of his chapter on the authority of democracy rebutting the (attractive, he admits) view that democracy confers political authority because it flows from our general obligation to treat one another as equals. He focuses on criticizing Tom Christiano, who argues that democratic authority flows from refusing to put our own private judgment ahead of others’, and recognizing that democratic government is crucial to equally advancing the interests of all persons.

I don’t need to review Huemer’s critique of Christiano, however, since Christiano’s arguments can’t serve as a plausible explanation for the authority of property rights, as no democratic process is implemented with regard to the acquisition of property under market anarchism. However, there is a structurally similar issue, namely an argument for the authority of property rights based on the two-part claim that a system of private property rights puts each other’s judgments on equal footing and equally advances the interests of all. But even if such an argument could be constructed, Huemer is arguably correct that this style of argument has numerous flaws.

D. Consequentialism and Fairness – On Huemer’s view, consequentialist arguments for authority are those that hold (i) that there are great values secured by government and that could not be secured without government, and (ii) that this fact imposes on individuals an obligation to obey the state, on the grounds that (a) we have a duty to promote the values addressed in the first stage of the argument or at least not to undermine them and (b) obedience to the law is the best way of promoting those values and disobedience is a way of undermining them.

The first part of the argument for statist political authority is that governments are needed to produce lots of salient benefits. I want to note in particular the second benefit, that government is said to provide detailed, precise, uniform and public rules of social life.

Obviously Huemer denies that a state is necessary to achieve these benefits. That’s what the second part of the book is all about. So Huemer focuses in this chapter on the first part of the argument.

To establish the first part of the argument, some appeal to act-consequentialism. Obedience to government in specific cases will maximize the amount of the relevant political goods. In reply, Huemer makes the obvious point that individual compliance with government authority is seldom necessary to secure the relevant benefits.

Other consequentialists will appeal to rule-consequentialism to justify the same conclusion. But, Huemer points out, rule-consequentialism sometimes has absurd consequences, such as that Huemer cannot be a philosopher because if everyone became a philosopher, everyone would starve. In brief, it’s hard to plausibly specify the “rule” in rule-consequentialism.

Finally, Huemer argues that consequentialism isn’t a good basis for political authority because it cannot ground content-independent, comprehensive or supreme authority for the state. At most, the state is permitted to coercively impose correct and just policies to prevent very serious harms. But no one has the right to enforce goals of lesser import.

Again, all the same complaints can be lodged against the political authority of property rights. Act-consequentialism won’t work because many particular violations would maximize. Rule-consequentialism won’t work because of the same problem formulating property rights rules in ways that do not have absurd consequentialism. And finally, the reasons that consequentialism can’t generate content-independent, comprehensive or supreme authority for government apply to the reasons consequentialism can’t generate the same duties for property rights.

III. Huemer Proves Too Much

If the argument in (II) is correct, if the state / property-institutions analogy holds, I submit that Huemer’s critique of political authority proves too much. He’s refuted all the major arguments that could justify Sarah’s duty not to interfere with the voluntarily transactions between John and Reba and the right of John and Reba to coercively prevent Sarah’s interference.

An obvious retort is that we don’t need those theories to justify Sarah’s duty not to interfere. After all, it’s just intuitive that Sarah has a duty not to interfere with John and Reba’s transaction. I will concede that this might be true with regard to the morality of the rule, but it is not as intuitive that John and Reba can use coercion against Sarah to ensure that she complies with the duty. Perhaps it is to libertarians, but not to anyone else. Sure, in many cases, it’s intuitive to non-libertarians that John and Reba can enforce that duty, but non-libertarians think there are tons of cases where John and Reba cannot enforce that duty. For instance, suppose John and Reba are both spectacularly wealthy, and engage in mutual exchanges that make them wealthier still. Sarah, through no fault of her own, is desperately poor. She won’t starve without their resources, but she will live a life of serious material depravation. Is it just intuitive that John and Reba can use force to prevent Sarah from interfering with their transactions so as to secure resources to alleviate her poverty? I don’t think so. As we saw in my Rousseau post, people like Sarah have a genuine complaint when they ask why John and Reba get to define property rights, or why “natural law” endorses their property rights when it is detrimental to the basic interests of Sarah and her ilk.

If Huemer is to successfully defend market anarchy, he has to answer this Rousseauian question. He has to explain how the political authority of property rights can be justified to people like Sarah when the political authority of government cannot. Otherwise, his arguments show that there is no political authority at all, for states or property institutions under market anarchy.

If so, we need to reexamine Huemer’s criticisms of political authority.

IV. A Justificatory Liberal Account of Limited State Legitimacy

I think Huemer’s criticisms of political authority are weakest in what they omit – Huemer never takes seriously the idea of a justificatory liberal justification of state authority. Such theories resemble hypothetical consent theories, so they’re easy to overlook if you’re trying to do a general survey. But justificatory liberal views differ in that they only appeal to hypothetical consent stories as a heuristic for what people have most reason to do. The fact that people would consent is not what makes it true that they have political obligations. Instead, hypothetical models are evidence of what rules are most fair or just, and so model the reasons we have to comply with fair and just rules. I think Rawls has such a theory. Rawls is not a hypothetical consent theorist because he doesn’t hold that agreement in the original position is what Rawls thinks makes it true that people have political obligations. Instead, the original position is a heuristic for making sense of political justification. Rawls is clearer about this in Political Liberalism, though the claims are scattered in quick passages across the book, so they’re easy to miss.

What’s harder to miss is Jerry Gaus’s body of work on the matter, which Huemer dismisses in an uncharacteristically curt footnote. See pg. 42, n12:

Gaus argues that political legitimacy requires agreement among all reasonable persons on general principles, though disagreements on the interpretation of those principles may remain. He mistakenly assumes that agreement on general principles is common.

Two problems: (i) Gaus gives lots of empirical evidence that people agree on general principles, evidence Huemer just ignores, (ii) Gaus’s view is badly mischaracterized as a hypothetical consent theory. The justificatory nature of the theory is clear in Gaus’s 1996 book Justificatory Liberalism. But there’s also a similar theory in his 2011 The Order of Public Reason. Through misinterpretation, Huemer ignores the substantial late 20th century body of work devoted to working out a justificatory liberal theory of political authority.

Obviously I can’t work out the details here. But I have in lots of my posts here at BHL and there’s plenty of information online and in easily accessible books. I also can’t work out the following claim: that justificatory liberal political theories vindicate a limited doctrine of state political authority. However, I think it’s true, and worth your consideration.

That said, and perhaps readers will find this interesting, I have argued that political liberal foundations justify the sorts of market anarchist experimentation that Huemer defends in part II of the book. To briefly explain: there are reasonable market anarchists (among whom Huemer is exemplary) who have reasons defeating claims to state political authority, and who, consequently, merit an exemption from state authority to work out their anarchist institutional theories in practice. The exemption might not cover them while they live within the state’s legitimate and appropriately restricted sphere of influence (not sure about this). But the state and the people have a political obligation to provide market anarchists with a portion of land consonant with their assets and out of respect for their conscientious objections. Effectively, market anarchists merit a kind of reservation, though obviously one much more autonomous than contemporary Native American reservations, and without the horrific history.

V. The Benefits of Political Authority?

With the exception of market anarchists, I think basically everyone has a reason to see at least some limited forms of state authority as a kind of benefit rather than a problem. Publicly justified governmental power is the method by which free and equal people can resolve disputes that their widely recognized moral practices cannot. Insofar as people desire to treat one another as free and equal persons who merit respect, and insofar as people want to live in reconciled relations with their fellows, ones that silence common resentments and moral indignation, they have reason to accede to political authority to resolve their otherwise unresolvable disputes about what is right, just and good.

Though it is true, as Huemer demonstrates, that most exercises of political authority not only fail to treat persons as equal and reconcile diverse persons with one another, but also actively violate those moral requirements. My core claim here is that Huemer’s arguments prove too much, specifically undermining his own market anarchism. In sum, The Problem of Political Authority fails its task in showing that government is illegitimate.

In future work, I hope Huemer will identify a justification for the political authority of property institutions under market anarchy that does not also justify state authority. It’s a tall order, but I think Huemer is up to the task.