Violence, Law, and the State

Thinking about that the state, law, violence, and the Garner incident (and contributing to the tl;dr phenomenon).

WeberReturning to Jonah Goldberg:

This is something that libertarians understand better than everyone else: The state is about violence. You can talk all day about how “government is just another word for those things we do together,” but what makes government work is force, not hugs.

This is true, to a point, but it is also radically simplistic.  It is a dorm-room at 1am, sophomore-level understanding of politics and political philosophy along the lines of “all property (or taxes) is theft.”  That is to say while the observation that for a state to be a state requires an ability to deploy violence is not the same thing as equating the state with violence (or stating that force is what makes governments work).

We can start from first principles:  I concur that government requires the capacity to use force.   Indeed, a famous, basic definition of the state from the German political sociologist Max Weber (from “Politics as a Vocation”) goes as follows:

a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory. Note that ‘territory’ is one of the characteristics of the state. Specifically, at the present time, the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it. The state is considered the sole source of the ‘right’ to use violence. Hence, ‘politics’ for us means striving to share power or striving to influence the distribution of power, either among states or among groups within a state.

Fundamentally the state has to be able to claim an ultimate recourse to force, including violence, or you cannot have a state.  Despite the stark language, this is pretty straightforward:  how else can you have a government if it does, at the end of the day, have the all necessary power to enforce it rules (i.e., the law)?  Further, we know that governments have to be able to resort to violence to protect its territory from foreign incursion (but that is a different discussion since the focus here is domestic law enforcement).

Force, it should be noted, does not mean violence only (nor does it mean that violence is the regular, expected outcome of state action).  I would daresay that everyone reading this piece has done the following:  taken one’s foot off the accelerator while driving at the glimpse of a police car (and regardless of whether one was speeding or not).  Why do we do this?  We don’t want to be pulled over.  We don’t want to have to wait while the police officer calls in our information.   And, above all else, we don’t want to pay a fine or have our insurance rates go up. All of the above is predicated on force, but not violence. Indeed, if violence is initiated by the police during a routine traffic stop then we consider that an unwarranted aberration (or, at least, we should).

Further, if we look back to Weber, the definition mostly means that the existence of the state removes from others the right to use violence without state sanctions (or, to put it another way, stateness can only exists when no other actor can claim the right to use violence without the state allowing it to do so).

Most citizen-state interactions do not end in (nor require) violence.  It is worth noting that people, in general, do not follow the law solely because of the threat of force.  Instead, they follow the law mostly because they accept that its legitimacy due to general acceptance of the legitimate nature of the government under which we live (even when we don’t always like a given law).  There are also moral strictures that guide behavior.  We do not, for example, refrain from murdering that annoying neighbor because we fear the violence of the state.  More likely we forestall from such action because we believe it is wrong (and, in fact, the law tends to reflect generally accepted norm rather than constructing them).

While yes, part of the motivation of paying my taxes is that I do not want to pay a penalty or go to jail.  But, really, the main reason I pay my taxes is that I recognize the right of the Congress to pass laws and that I have an obligation, as a citizens, to comply with those laws.

So while Weber is correct that the state must have “the monopoly of the legitimate use of physical force within a given territory” Goldberg is wrong that “The state is about violence” or “what makes government work is force” because it is actually about much more than that.

Further, and this key, while the state may, in fact, claim “the monopoly of the legitimate use of physical force within a given territory” the way in which it executes that power matters.  The institutions of the state matter.  The content of the laws matter.  The way in which we deal with overreach of the application of those laws matters.  The state in North Korea behaves differently than does the state in Costa Rica.  Both are states which have the same basic theoretical basis, but their stateness manifests quite differently.

That is the issue here as it pertains to the law in the Eric Garner and other cases in terms of how it was enforced.

Now, should we have a debate on the sale of loose cigarettes on the streets of NYC?  Perhaps we should.  However, to pretend like we can simplistically assert that the situation should be understood primarily, or even secondarily as one of “See!  we have too many laws and regulations” or to point out that “The state is about violence” is to utterly miss the more significant issues at hand.  This issue include, but are not limited to:

  1. Race.
  2. Over-deference to the police (in terms of the legal system and society in general).
  3. The seemingly too cozy relationship between DAs and law enforcement (as it pertains to Grand Jury proceedings).
  4. How laws are enforced.

I am more than open to the notion that we have too many laws.  I have no problem with such a debate, but the notion that we can blame the outcome of the Garner case on the fact that a law exists ignores the fact that the law in question did not, in any way, require (or even prescribe) what happened that day.  It also ignores that we have an awful lot of laws (almost certainly too many) but that those laws do not result in constant police violence.

In short:  a great deal of human interaction can boil down to some amount of coercion.  This is true when one deals with business as well as government (just try getting out you cell phone contract or stop paying your bills and see what happens).  Or, for that matter, try trespassing on private property in many states and get back to me about the results. Of course, it is true that all of this, from laws about contract enforcement to laws self-defense all are defined, and may times ultimately enforced, by government.  But, of course, human interactions require rules.  Rules, to have effect, require the potential for sanctions, so really all of this is pretty fundamental to humanity unless one is a total and true anarchist–and even then, the basic right of self-defense means that one has the right to resort to violence.

So, if one tears all of this down to foundations, the bottom line remains:  the issue is not whether human interactions are governed, to one degree or another by force of some kind but, instead, boils down to how those rules are generated and enforced.

And I would contend that regardless of the rule in question, the way that rule was enforced in the Eric Garner case was fundamentally unjust and raise serious questions about the interaction of the police with common citizens.

Further, I will state that I am of the strong opinion that the racial element of this confrontation is important to acknowledge and that discussions of cigarette taxes are a distraction from that fact.

FILED UNDER: *FEATURED, Politics 101, Race and Politics, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. An Interested Party says:

    …but it is also radically simplistic.

    Of course, this is Jonah Goldberg writing those words, so such should be expected…meanwhile, you know what’s really violent? A place without a functioning government…it has been used so often that it is a cliché, but it is also the truth–any of our freedom-loving friends who tire of a “violent” government are free to live in a place like Somalia and enjoy the benefits of as little government as possible…

  2. @An Interested Party: Indeed on both counts.

  3. OldSouth says:

    Thank you for a rational contribution to a controversy that has disintegrated into an acrimonious food-fight.

    No, this is not about the sale of untaxed cigarettes.

    Yes, it is about the proper role and proportionality of law enforcement in this country.

  4. michael reynolds says:

    Good read, Steven. I’ll provide the tl;dr: libertarians are clueless.

    See? This is why I dropped out of school: free education online.

  5. JKB says:

    Talk about your “dorm-room at 1am, sophomore-level understanding”. So you pay your taxes because you agree with Congress’ right to impose them, either by choice or by years of conditioning in education and society. Good for you.

    But Eric Garner did not have violence done to him because he was selling “loosies”. He had violence done to him because he had come to the point that he did not agree that the agents of the state should be bothering him for being suspected of selling “loosies”. He then was subjected to verbal threats of violence (assault) and finally the actual perpetration of violence upon his body (battery). They brought enough guys and he was forcibly restrained and left in a position where he could not move himself to ease his difficulty breathing. The “chokehold” is an issue in question, although it was determined not to be the direct cause of his death, neither was he rendered unconscious or unable to breath (he was speaking). It does appear that it was a contributing factor. But he died, because he had violence done upon him to place him in restraints then left in a prone, face down position that his size, asthma, heart condition, and the battery caused him to have difficulty breathing. His restraint prevented him from moving to a position that relieved his distress and he died.

    But for the petty law, he would not have had the interaction with the police. An interaction that he protested with a fair amount of animation, prompting the police to use violence to force his compliance.

    But, of course, if only he had not protested the police involvement in his personal affairs and just agreed with city/state banning the sale of “loosies” then he would be like you and your taxes.

    Here’s an experiment for you. Don’t pay your taxes, hide your assets and when the agents come to inquire tell them to leave you alone. Move your hands about in an animated fashion. I suspect that you will learn that the state is violence.

    When we’re saying “the government should intervene,” we’re saying “an organization with guns should threaten to lock people in cages if they don’t comply with its dictates.”
    –Art Carden, Econlog

    Guess how they get the people who don’t cooperate or agree into those cages?

  6. @JKB: You missed the point.

  7. MarkedMan says:

    When I was young libertarian ideas were associated with the Democrats, or more accurately, the hard left (“Fight the Man!”). A certain subset of that hard left employed violence to achieve their vague and poorly thought out ‘goals’. Today, however, they find their home with Republicans, or more accurately, the hard right, and they still have the same violent fringe. Why is that?

    I don’t have a complete answer, but I have to wonder if at least part of it is based on the need to be associated with the most reality-challenged group. Libertarian philosophy never works in real life and, without any exceptions I can think of, the more libertarian a society is in practice the less just it is. Since the adherents to that philosophy must therefore disregard the real world experimental results of their beliefs they find a natural home in the modern era Republican party, which is completely based on denial of reality. And thirty or forty years ago, they found a natural home in the Democratic fold, which was immersed in its own denial of reality. My own opinion is that the Dems, as a party, eventually recognized their policies conflicted with the real world and changed them. While the Repubs have just continued to double down on the fantastical since Reagan.

  8. michael reynolds says:

    @MarkedMan:
    Boy, I think that was pretty astute. That’s right. Democrats used to be the party of tax and spend and make these consequential plans free of concern for human nature or basic economic realities.

    Then they got beat by Reagan and Bush Sr., 12 years straight, and they turned to Bill Clinton for a way back to reality.

    The Republicans have been winning by a hair or losing by a lot, but they’ve protected themselves in Congress by gerrymandering and by becoming the party of the over-represented rustic. They need to get beat at least one more time and give back the Senate. The crazy is strong with these people.

  9. anjin-san says:

    @JKB:

    Talk about your “dorm-room at 1am, sophomore-level understanding”.

    If you apply yourself, perhaps one day you will reach that level.

  10. Eric Florack says:

    @An Interested Party: there is a major difference, however, between the environment fostered by a non-functioning government, and the environment fostered by a government with his fingers in everybody’s pie, dictating every single aspect of life.

    in what free society, is selling cigarettes individually to be considered a crime? In a society where every aspect of life is governed.which of course is not a free society at all.

    there’s an awful lot of people right now standing up and screaming for justice based on the idea that a black man died at the hands of law enforcement. I would suggest to you the problem is too much law. If you’re going to pass laws you’d better be prepared to kill to enforce them, because eventually it’s going to happen. If that seems a bit too simplistic for you I would suggest that you check with what’s going on in New York City just now.

  11. OzarkHillbilly says:

    @Eric Florack:

    If you’re going to pass laws you’d better be prepared to kill to enforce them, because eventually it’s going to happen.

    Another overly simplistic non-contribution totally devoid of context or meaning. Thanx Eric. My day can only get better from here.

  12. CET says:

    @MarkedMan:
    Libertarian philosophy never works in real life and, without any exceptions I can think of, the more libertarian a society is in practice the less just it is.

    In it’s extreme Ayn Randian form, no, it isn’t going to work.* But that’s pretty typical – philosophies are too ideologically rigid to function in a messy world. Libertarianism works best as a moderated set of guidelines – to a first approximation, government shouldn’t meddle in the lives of citizens unless there is a compelling reason for it, and legislative solutions to social problems should be the last resort rather than the first.

    In practice, there is also a serious issue with Libertarians’ tendency to minimize economic abuses of power by private parties. Libertarians don’t do a good job of addressing the slippery slope to oligarchy. But there’s nothing wrong with being wary of large permanent subsidies to particular actors (see, for example, the distorting effects that subsidizing corn has had on food production in the US).

    A moderated version of libertarianism works well for social policy though. In particular, it offers a useful counterweight to the increasing tendency of the both the Dems and the GOP to rely on legislation as a way to coerce people to do things ‘for their own good,’ etc. This is also where I think the historical record provides the most support for a moderate libertarian position: The results of prohibition (and to a lesser extent, the modern war on drugs) are an obvious warning about the side effects of misusing the coercive power of the state.

    *I’d be curious what historical examples you can come up with – to a first approximation, I would argue that the US is a generally libertarian state in the same way that Denmark is a generally socialist state.

  13. Blue Galangal says:

    @OzarkHillbilly: I apologise in advance because I’ve been reading a lot of theory of late, but Althusser comes to mind. If these broken window laws – and subsequent violent repression by the police – aren’t a repressive state apparatus, what is? I know it does sound simplistic but sometimes violence from the state is pretty simplistic. If everyone is a lawbreaker, we all live in fear. Some of us live in more fear than others. But look at what is going on in Berkeley *because* of the police response. Look what happened in Ferguson *because* of the police response. The laws that allow citizens to be harassed routinely – like Eric Garner or Michael Brown, whether tax laws or jaywalking laws – are doing what they’re meant to do: terrorise the citizens into compliance under threat of violence *by the state*. That’s a significant problem. And I think – politics aside – it’s the root of what’s going on here, at least if you are inclined to interpret this, as I am at the moment, as a class struggle rather than an ideological struggle.

  14. Eric Florack says:

    @OzarkHillbilly: if you think what I’ve said isn’t true you’ve lost all track of reality. What happened in New York was not a case of bad cops, but a case of bad law.

  15. Barry says:

    @michael reynolds: “Democrats used to be the party of tax and spend …”

    Well, no.

  16. Barry says:

    BTW, Jonah’s argument really boils down to the standard right-wing argument in these cases – ‘if the police don’t have the freedom to kill anybody[1] they deem necessary, then we’re in anarchy!!!’

    [1] Except for white right-wingers.

  17. gVOR08 says:

    @Barry: Jonah Goldberg wrote something stupid. But I repeat myself.

  18. JohnMcC says:

    Excellent little essay, Dr Taylor. Thank you for your thoughts. I’d just point out that in a healthy society the general acceptance of government, it’s ‘legitimacy’ will shift over time. The Jim Crow laws could not be enforced today not because there would be violence (although there probably would) but because even in the deep south they would not have sufficient social support. It is this shifting of mores that introduces pressures into a political structure.

  19. grumpy realist says:

    This is the same Jonah Goldberg who wrote “Liberal Fascism”, right? The same dude who doesn’t speak a word of German or Italian but who decided he was such a great intellectual he didn’t have to do a lick of research into what had already been written by Italian and German historians, right?

    Case closed. The guy has the mentality of an earthworm. A DEAD earthworm.

  20. @Eric Florack:

    What happened in New York was not a case of bad cops, but a case of bad law.

    This may encapsulate exactly what I am trying to get at because it is an absurd statement. Nothing in that law required and even specifically led to what happened. Rather, the way the police officer chose to enforce the law was the problem.

  21. @JohnMcC: To be clear, I am in no law arguing that all laws are just or that laws should not be changed (or even that some laws ought not be resisted).

  22. stonetools says:

    Hey, let’s just be glad the libertarians have momentarily turned from their usual game of coddling the rich and spiting the poor to oppose oppressive policing, even if their argument is cockeyed. Hey, their help is appreciated, even if proceeding from sloppy thinking.
    Mind you, what’s their solution-repealing cigarette taxes? Do they really think that would help? And of course, their “solution” misses the real elephant in the room-that the police are now an armed force that can kill civilians-epecially black civilians-with impunity. They seem to have little to say on THAT.

  23. @stonetools: In fairness, I have seen libertarians using this as a case of speaking to the broader police problem.

  24. CET says:

    @Blue Galangal:

    I concur. Blaming this on cig. taxes per se is obviously silly. But this is an excellent opportunity to talk about whether or not (and if so, how) it is appropriate to use police to enforce trivial laws, and the extent to which many of those laws exist largely as an excuse for police to harass minorities and the poor.

    Or: You can hold all the race-sensitivity training you want,* but if you still have mandatory minimums, ‘broken windows’ policies, etc. then the force of the law will fall disproportionately on minorities.

    *That’s what genuinely confuses me about making this primarily about race – I don’t know what people expect to see done about that. It’s built into the system, and you can get outraged about it all you want, but if you don’t change the policies and incentives that produce it, your outrage is worthless.

  25. lounsbury says:

    @An Interested Party:
    Yes quite right, I have and do business in places with weak states or almost no state. It is very clear that state monopoly on violence is a bloody damned good thing in reducing person-on-person violence, general uncertainty and increasing general safety. It is also my general observation, USA excepting I suppose, that the more guns one sees, the crappier and more horrible the country.

    @CET: What you describe is known in the rest of the Anglo world as Classic Liberalism, and is a well-established political tendency (without need to call on the Right Boshevism of the Randians who I discovered only through Americans, to my great horror that they lapped up an inverted form of Bolshy-Russian thinking rather than proper Anglo Liberalism [in the international not USA sense]).

  26. CET says:

    @Steven L. Taylor:

    It is both – bad laws (and bad policies) create bad cops. I think it’s rare for someone to go into law enforcement with the intent to stick it to minorities and poor people, but after a couple of years in a dept. that encourages (or even requires) hostility towards minorities, this kind of incident is a wholly predictable outcome. Firing individual cops isn’t going to fix it.

    Is the lack of indictment despicable: of course it is, and that raises a separate set of issues about the relationship between police and prosecutors. But I think it’s just as important to consider that the system failed long before the Grand Jury decision came down, and to examine ways of fixing the ultimate rather than proximal causes of this whole event.

  27. CET says:

    @lounsbury:
    What you describe is known in the rest of the Anglo world as Classic Liberalism…

    Just so. But when I tell people I’m a ‘conservative liberal,’ they look at me like I’m crazy, so I go with ‘moderate libertarian.’ It’s also worth noting that objectivists (Ayn Rand’s cultists) are to libertarians what evangelical Christianity is to the mainline protestant denominations. Any idea taken to it’s extreme becomes untenable, even liberty.

  28. JKB says:

    @Steven L. Taylor: Rather, the way the police officer chose to enforce the law was the problem.

    I see. So you swing back to the notion that we can make people, in this case police officers, better? And you apply this notion to the NYPD, who claim to be the best trained, most professional police in the world?

    The alternative, of course, is to accept human frailty and the fact that no amount of training, regulation, professionalism, etc. will stop such things at what happened to Eric Garner. Although, it might reduce the chances, but not to zero. The solution is you accept human nature is to reduce and limit the number of occasions for such unfortunate outcomes by not making every little thing a police matter.

    Now, here is an interesting revelation. Seems the widow is saying the police continually taunted Garner even where they had no probable cause to interact with him.

    Esaw Snipes-Garner, the widow of Eric Garner, was on “Meet the Press” today. The moderator, Chuck Todd, mostly just asked her how does she feel.
    I

    feel that he was murdered unjustly. I really don’t feel like it’s a black and white thing. I feel like it’s just something that he continued to do and the police knew. You know, they knew. It wasn’t like it was a shock. They knew. You know? They knew him by name. They harassed us. They said things to us. We would go shopping. You know? “Hi Cigarette Man. Hey Cigarette Man Wife.” You know? Stuff like that. And I would just say, “Eric, just keep walking. Don’t say anything. Don’t respond. You know? Don’t give them a reason to do anything to you.” And he just felt like, “But baby, they keep harassing me.” And I said, “Just ignore them, Eric.” And he said, “But how much can I ignore them?” And I would say, “Just stay away from the block. You know? Just find something else to do.” And he’s like, “What else can I do? I keep getting sick.” He tried working with the Parks Department. But he had asthma. You know? He had issues. You know? Heavy guy. And he was very lazy. You know? He didn’t like to do anything. He wasn’t used to it, so.

    Yep, more training, more regulations, etc. on police will fix that.

  29. @CET:

    Firing individual cops isn’t going to fix it.

    I concur. Firing problematic cops is needed, but the actual problems are systemic (if not societal).

  30. I would daresay that everyone reading this piece has done the following: taken one’s foot off the accelerator while driving at the glimpse of a police car (and regardless of whether one was speeding or not). Why do we do this? We don’t want to be pulled over. We don’t want to have to wait while the police officer calls in our information. And, above all else, we don’t want to pay a fine or have our insurance rates go up. All of the above is predicated on force, but not violence.

    But suppose instead of taking your foot off the gas you kept speeding. And when the police car began flashing its lights at you, you merely kept on driving rather than obeying.

    Violence would very quickly become involved.

    To say that the state is predicated on force, not violence, is like saying most muggings are not violent because the victims generally hand over their wallets rather than insisting the mugger follow through on the threat to beat them up and take it.

    Now you are correct that the “all property (or taxes) is theft” argument is overly simplistic, but your alternative (ignoring the problem entirely) is just as simplistic.

    Why not address the actual question: what are the philosophical principles that distinguish legitimate use of violence from illegitimate use of violence?

  31. @JKB:

    So you swing back to the notion that we can make people, in this case police officers, better?

    Whether we can make people “better” is not the issue, per se (depending on what you mean by the assertion).

    But yes: we can make policing better. History shows this. Or are you going to state that policing (especially in regards to race relations) wasn’t made better in Birmingham, AL from, say the 1950s and 1960s versus now?

  32. @CET:

    I think it’s rare for someone to go into law enforcement with the intent to stick it to minorities and poor people

    I disagree. There’s many people who enjoy having power over other people, and many of those people are attracted to professions like law enforcement specifically because they like being able to order other people around.

  33. stonetools says:

    @CET:

    That’s what genuinely confuses me about making this primarily about race – I don’t know what people expect to see done about that. It’s built into the system, and you can get outraged about it all you want, but if you don’t change the policies and incentives that produce it, your outrage is worthless

    I think you missing an important piece here-the outsized effect on minorities is a feature, not a bug, of the system. It’s precisely because the victims of this system are mostly minorities why people support the current system. For whites, the occassional white who suffers from police brutality-never a wealthy one, BTW- is a small price to pay for the blessing of having the police keep the brown-skinned menace cowed and in their place-away from decent folk.
    Do you honestly think the current system would be in the place if rich and middle class folk were suffering police brutality at the same rate as minorities? If you do , I have a bridge proposal I need to email to you…

  34. @Stormy Dragon:

    But suppose instead of taking your foot off the gas you kept speeding. And when the police car began flashing its lights at you, you merely kept on driving rather than obeying.

    Violence would very quickly become involved.

    I understand the point: that theoretically any law enforcement confrontation could degenerate into violence. However, the fundamental truth of the matter is that that is not how the vast, vast majority of such interaction end up. This is important in terms of the discussion.

    but your alternative (ignoring the problem entirely) is just as simplistic.

    I am not sure how i have done that.

    Why not address the actual question: what are the philosophical principles that distinguish legitimate use of violence from illegitimate use of violence?

    Yes, that is a legitimate question.

  35. stonetools says:

    @Stormy Dragon:

    Why not address the actual question: what are the philosophical principles that distinguish legitimate use of violence from illegitimate use of violence?

    You know, this makes for an interesting phiosophical debate for college students. The reality is that in real life you really do need a “common power …to hold all in awe” in order to establish public order. Anyone who has to use the roads in Third World countries where traffic laws are weakly enforced soon learns to love state power.
    Frankly, those college students also love state power. Those colleges don’t exist without public roads, public order, public sanitation systems, public finance, etc.

  36. anjin-san says:

    @Steven L. Taylor:

    But yes: we can make policing better.

    I think JKB is taking a rather standard conservative position – “It sounds hard, I give up”

  37. An Interested Party says:

    You missed the point.

    Well, if we’re being honest, he usually does miss the point…

    I would suggest to you the problem is too much law.

    And your suggestion would be incorrect…the problem in this case was an overzealous cop using a chokehold move that was outlawed by his police department…

  38. CET says:

    @stonetools:
    Do you honestly think the current system would be in the place if rich and middle class folk were suffering police brutality at the same rate as minorities? If you do , I have a bridge proposal I need to email to you…

    I think we’re talking past each other on this, in that we probably agree to a large extent on the problem, just not the solution. The fact that you need buy-in from affluent and middle class whites on this issue points to a need to create a narrative that has broader appeal than ‘cops are racist.’

  39. @CET:

    to create a narrative that has broader appeal than ‘cops are racist.’

    I would concur that this is not the right narrative, as it is impugns the entire profession. However, there is a clear race component to this situation, and that needs to be broadly acknowledged.

    Beyond that, there is a general problem, I think, of police over-militarization and the cultivation in many cases of an us v. them mentality (where “them” is the population at large).

  40. I am reminded of this post from James earlier in the year: Professor-Cop Blames Victims of Police Violence

  41. Tillman says:

    @stonetools:

    It’s precisely because the victims of this system are mostly minorities why people support the current system. For whites, the occassional white who suffers from police brutality-never a wealthy one, BTW- is a small price to pay for the blessing of having the police keep the brown-skinned menace cowed and in their place-away from decent folk.

    Bullshit. You move from white people being unaware of discriminate law enforcement (supporting the system because they perceive it as fair) to white people urging law enforcement to be discriminating (supporting the system because they need a racial bulwark). You’re about three steps from “KILL WHITEY” there.

  42. Grewgills says:

    @Eric Florack:
    If you truly believe that then you must also believe that every single law that we don’t support the death penalty for must be bad law as well. Jaywalking = bad law, speeding = bad law, DUI = bad law, failure to pay child support = bad law, basically everything short of murder and rape = bad law. Either you don’t really hold the position you claim or you are entirely incapable of recognizing the consequences of your position.

  43. Grewgills says:

    @stonetools:

    I think you missing an important piece here-the outsized effect on minorities is a feature, not a bug, of the system. It’s precisely because the victims of this system are mostly minorities why people support the current system. For whites, the occassional white who suffers from police brutality-never a wealthy one, BTW- is a small price to pay for the blessing of having the police keep the brown-skinned menace cowed and in their place-away from decent folk.

    I think it is less about racial animus and more about unrecognized privilege for most white folks. Certainly there is a sizable minority that spend their time worrying about their end of town ‘darkening’, or worry that the will be victims of dangerous dark people. Those people are outnumbered by the blissfully ignorant that aren’t harassed or abused by the police at all, much less regularly, so don’t see the problem. That is a lot of reachable people that will be turned off by being accused of virulent racism.

    Do you honestly think the current system would be in the place if rich and middle class folk were suffering police brutality at the same rate as minorities?

    It is unquestionably true that this abuse would not continue if that were the case.

  44. stonetools says:

    @Tillman:

    Ok, amend to “a lot of whites”. With such amendment, I maintain my analysis is correct.

  45. stonetools says:

    @CET:

    The fact that you need buy-in from affluent and middle class whites on this issue points to a need to create a narrative that has broader appeal than ‘cops are racist.’

    I may be unreasonably cynical here, but I think that the right narrative will arrive just about when the police kill someone white, blond, and conventionally middle class (Hippies don’t count)…

  46. michael reynolds says:

    I have often in life been depressed by the inconvenience of various political narratives. I think the first time was back in the 60’s when the anti-Vietnam War narrative turned into an anti-military narrative and then a pro-North Vietnam narrative. Few things did more damage to the cause of actually ending the war than a bunch of long-haired nitwits waving the flag of a repressive Communist state.

    More recently I thought Occupy blew it with their lack of message discipline. They had an effect, absolutely, but it was undercut by their political incompetence.

    But that’s the way it goes, sometimes. You end up in most cases being unable to fine-tune the narrative.

    In this case I agree it would be good to broaden the narrative beyond race to include issues of absurd laws and police militarization.

  47. DrDaveT says:

    @CET:

    Libertarianism works best as a moderated set of guidelines – to a first approximation, government shouldn’t meddle in the lives of citizens unless there is a compelling reason for it, and legislative solutions to social problems should be the last resort rather than the first.

    Um, no. That’s like saying “brussels sprouts are tastier when they’re actually bananas”. You can’t just redefine “Libartarianism” to mean something sensible.

    As @lounsbury points out up above, what you have defined is actually classical Liberalism, as advocated by folks as separate in time and philosophy as Adam Smith and Thorstein Veblen.

    to a first approximation, I would argue that the US is a generally libertarian state in the same way that Denmark is a generally socialist state.

    I am baffled how anyone who has actually thought about these things can say this with a straight face. If you print out the liberty-constraining laws of any one US state, the resulting book takes up many feet of bookshelf. The original impetus for many of those laws was (and remains) theocratic — an attempt to legislate morality as interpreted by the dominant religious sect of the colony/state. The remainder are predominantly (successful) efforts by the wealthy and influential to protect that wealth and influence from competition or threat. Only in the comfort of middle-class America could such a system be mistaken for any flavor of Libertarianism.

  48. DrDaveT says:

    @stonetools:

    Frankly, those college students also love state power. Those colleges don’t exist without public roads, public order, public sanitation systems, public finance, etc.

    This. Libertarianism can only exist, as a philosophy, in the context of a government that is working so well that it is all-but-invisible. It’s like fish complaining that the drag of all that water makes it inconveniently hard to get around.

    The corollary, of course, is that when government visibly fails and harms, the correct response is to fix it, not to eliminate it.

  49. Grewgills says:

    @michael reynolds:

    More recently I thought Occupy blew it with their lack of message discipline. They had an effect, absolutely, but it was undercut by their political incompetence.

    That was definitely true here. The Occupy Honolulu movement quickly degenerated into a diffuse left hippy message of the day movement with more signs about GMOs and the proposed train system than about the financial system. They did have one of my favorite signs early on that read, “If banking regulations were enforced as strongly as park regulations we wouldn’t be in this mess.”

  50. Grewgills says:

    @DrDaveT:

    Um, no. That’s like saying “brussels sprouts are tastier when they’re actually bananas”. You can’t just redefine “Libartarianism” to mean something sensible.

    Definitions change over time and most that call themselves libertarians today fit the mold he is talking about rather than the classical definition. It isn’t so much like saying, “brussels sprouts are tastier when they’re actually bananas”, as saying “I love brussel sprouts, but only when they are smothered in hollandaise sauce.”

  51. CET says:

    @Grewgills:
    And really, who doesn’t love things that are smothered in hollandaise sauce . . . 🙂

  52. stonetools says:

    I really don’t know what libertarianism means anymore. Doug calls himself a libertarian, but he has apparently never heard of, or prefers to ignore , Friedrich Hayek, who’s thought be one of the fathers of libertarianism. When I mention other libertarian thinkers like Milton Friedman, Ayn Rand or Murray Rothbard, Doug is similarly mum. His libertarianism seems to me anything he thinks it is – which is a general commitment to limited government and a non-interventionist foreign policy-with exception of the big government program called NASA, which he loves( Most libertarians love NASA-although it really doesn’t fit the “minimalist government” paradigm).
    A common mocking definition of libertarianism is “Republicans who like to smoke pot” and by and large, that is a good “first approximation” of what US libertarians actually believe and practise. They are also good at advocating for same sex marriage and free speech. They always proclaim they are independent. Generally, though, they vote Republican. I’ve never once heard of a libertarian who has voted Democratic in any election, and I suspect I never will.

  53. @stonetools:

    When I mention other libertarian thinkers like Milton Friedman, Ayn Rand or Murray Rothbard, Doug is similarly mum.

    Ayn Rand was extremely vocal about not being libertarian and not liking Rothbard and his followers in particular.

  54. stonetools says:

    @Stormy Dragon:

    Lots of libertarian thinkers reject the libertarian label. It’s part of the confusion about what libertarianism is.

  55. JKB says:

    @Steven L. Taylor:

    My point is, while you can reduce the chances, the fact remains that individuals will die in the course of being forcibly detained by police. It doesn’t matter whether they are suspected of killing, raping, robbery or selling loosies or jaywalking. Assuming no malevolence on the police’s part, if someone chooses not to cooperate with their restraint and removal to jail, they will have violence done upon them to ensure they are restrained and removed to jail. And no matter how well trained, some, as even now a small percentage, will die as a consequence of being arrested by police.

    On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce.

    And that does not mean that we should have no laws. It simply means we should decide if the law being made is acceptably important for someone, even someone dear to us, killed by police as a consequence of its enforcement. The death will not be criminal, it will be unfortunate, no prosecution will proceed as it was within the accepted practice of policing, but the person will still be dead.

    Are you willing to risk that the law will involve the police with a boy with Down’s Syndrome, who will be killed as a consequence of his noncompliance?

    Here’s just such a boy who died as a consequence of arrest for refusing to leave a movie theater. The officers claimed to not have realized his handicap.

    Dr. George Kirkham a criminologist and former law enforcement officer told the Post , “The circumstances surrounding Saylor’s death suggest a possible case of positional asphyxia, which often goes hand in hand with a phenomenon called sudden in-custody death syndrome.”

    “Positional asphyxia is typically the result of an intense struggle and often involves a person who is handcuffed and lying on their stomach after the struggle.” Kirkham says, “People often panic and can’t catch their breath. People with larger stomachs are particularly vulnerable, because their bellies will push into their sternums, making breathing even more difficult.”

    Doesn’t that sound a lot like Eric Garner’s death?

    No amount of training will stop the deaths.

    And yes, policing in Birmingham is better now than when Democratic Party Committee member Bull Conner ran things. So the malevolence has markedly declined, but the question is regarding the death as a consequence of officers acting with lawful force to effect arrest.

  56. CET says:

    @stonetools:
    You have now. Pleased to meet you too. 🙂

    I’ve voted for a pretty even mix over the years. I ended up voting for Obama for pres both times as the lesser of the two evils (and Kerry before that, for similar reasons), but I’ve ended up going mostly GOP for governer positions based on the people and the politics involved, and about a 50/50 split on legislative elections depending on which side is less likely to try and screw me if they take control of the state or national legislatures.

  57. JohnMcC says:

    @Stormy Dragon: Interesting that we’ve reached this far into the comments and turned over quite a list of names of political philosophers and pundits and not one mention of Radley Balko. I think this is really his signature issue and he’s at Reason-dot-com.

  58. Stonetools says:

    @CET:
    So there really are black swans..

  59. An Interested Party says:

    No amount of training will stop the deaths.

    True…among the cops, just like with every other profession, we’ll have the incompetent, the overzealous, the cowardly, the racist, etc….

    And yes, policing in Birmingham is better now than when Democratic Party Committee member Bull Conner ran things. So the malevolence has markedly declined, but the question is regarding the death as a consequence of officers acting with lawful force to effect arrest.

    Oh, that’s so disingenuously adorable, darling…but today’s Democratic Party has just about nothing in common with Bull Conner…much like how today’s Republican Party has little in common with Teddy Roosevelt…times do change, you know…but do keep trying…

  60. DrDaveT says:

    @Stormy Dragon:

    Ayn Rand was extremely vocal about not being libertarian

    Of course she was — she’d rather die than admit to following any philosophy or ethos. It’s part of being libertarian — you have to pretend that you thought it up all by yourself.

  61. Yolo Contendere says:

    I am more than open to the notion that we have too many laws.

    Really? How many would you like the President to eliminate? I assume you are not a crackpot.

    Seriously, I hate this sentiment just about as much as “the government is too big.” It’s a meaningless statement. There may be existing laws that should be eliminated. There may be even more laws that don’t exist but should be enacted. Perhaps some dealing with bankers and Wall Street and .

    There are certainly laws that should be changed. But going along with a discussion of “too many laws” just lends credence to an empty philosophy and impedes actual progress on improving our government and society. Laws don’t come into being in a vacuum. Originally there was a purpose to that cigarette law. Perhaps there no longer is a purpose, or the needs/desires of society have changed. Or perhaps the law as currently written is not fulfilling the purpose as necessary. That’s the type of discussion that should take place, not “there are too many laws, and we should get rid of this one rather than the one about murder, or speeding, or whatever.”

    First law up for discussion, acceptable use of force by police.

  62. Yolo Contendere says:

    @CET:

    Firing individual cops isn’t going to fix it.

    Have we tried that? Maybe we should, and see what happens.

  63. anjin-san says:

    @JKB:

    And yes, policing in Birmingham is better now than when Democratic Party Committee member Bull Conner ran things.

    Yes, if you get in the wayback machine and go back half a century, you will find bigoted , racist, asshole Democrats in positions of power, and it will be true that the Democratic Party was OK with that in many instances.

    To find the same thing in the Republican Party, you will not need the time machine.

  64. @Yolo Contendere: I don’t see the point of critiquing the following:

    I am more than open to the notion that we have too many laws.

    It is a statement of being open to a conversation about a particular assertion. The next sentence starts ” I have no problem with such a debate…”

    Seems to me that this is the way we need to be approaching things: with a willingness to discuss and debate.

    Of the things that the above is not is a mindless assertion that government is too big.

    (And since the rest of your comment is an assertion that there are laws that need to be changed or removed, I am not even sure what your gripe is with my statement).

  65. DrDaveT says:

    @Yolo Contendere:

    Seriously, I hate this sentiment [that there are too many laws] just about as much as “the government is too big.” It’s a meaningless statement.

    I disagree. I think there are easily-understood, objective senses in which we have too many laws:
    1. Nobody can know all of them, nor even the subset they are personally required to comply with
    2. We have nowhere near the resources to enforce all of them

    In the same way that you can know that you don’t have enough money even before you start thinking about what to do without, you can know that you have too many laws even before you start thinking about which ones are least necessary.

    On the other hand, I agree completely that getting rid of many silly annoying laws is a lower social priority than fixing a few gross inequities and destructive policies. I also believe that the correct number of laws is pretty damn big, given that the unscrupulous are really really good at finding loopholes.

  66. DrDaveT says:

    @Grewgills:

    Definitions change over time and most that call themselves libertarians today fit the mold he is talking about rather than the classical definition.

    So they’re OK with income taxes? Military conscription? Locking up hepatitis C carriers who won’t stop working at McDonalds? Anti-discrimination laws? Anti-trust laws?

    At that point, what distinguishes libertarians from socialists? Socialists, too, believe that

    government shouldn’t meddle in the lives of citizens unless there is a compelling reason for it, and legislative solutions to social problems should be the last resort rather than the first

    — they simply have a lower bar for what counts as “compelling”, and an informed mistrust of non-legislative solutions to gross social problems.

  67. Yolo Contendere says:

    @Steven L. Taylor: I agree we should approach every single individual law with a willingness to discuss and debate. My argument is a discussion/debate about “too many laws” is Grandpa Simpson territory. It’s like arguing about how many pages the healthcare bill was, but actually even less useful.

    Yes, I did say there are likely laws that should be removed. Either because they are no longer necessary, counterproductive, or not reflective of societies desires. But I also assert there are laws we need. My understanding of the lack of prosecution of the malefactors of the Great Recession is because what they did was legal. Same with the recent unarmed killings of black men. An argument could therefore be made we don’t have enough laws.

    My gripe, such as it is, is that a lot of time and effort is wasted on arguing unquantifiable notions. Giving it legitimacy by being willing to argue plays into the hands of those posting the question, who may not be arguing in good faith. If someone wants to initiate a discussion with me whether there are too many laws, I want to ask them why they want to distract from a discussion of substance. Unless, of course, they have an onion on their belt.

  68. @Yolo Contendere: Fair enough, although your argument is not with me, but rather with what you are reading into one line of this post.

  69. (And yes, in some ways we do not have enough laws).

  70. Yolo Contendere says:

    @Steven L. Taylor: True, and I’m sorry it sounded like it was. It was meant more as a “wouldn’t it be better if people didn’t feed the trolls”, although that’s not exactly the right analogy either.

  71. @Yolo Contendere: Fair enough–I take your point. (And, indeed, I think we are in general agreement).

  72. Grewgills says:

    @DrDaveT:

    So they’re OK with income taxes? Military conscription? Locking up hepatitis C carriers who won’t stop working at McDonalds? Anti-discrimination laws? Anti-trust laws?

    The Libertarian party is officially opposed to all of those except perhaps medical quarantine. They still seem to want some minimal level of government services such as contract enforcement and they have no workable scheme to pay for them that doesn’t include taxes, so almost all libertarians I know support some relatively low flat tax scheme.

    At that point, what distinguishes libertarians from socialists? Socialists, too, believe that government shouldn’t meddle in the lives of citizens unless there is a compelling reason for it, and legislative solutions to social problems should be the last resort rather than the first— they simply have a lower bar for what counts as “compelling”, and an informed mistrust of non-legislative solutions to gross social problems.

    Where that bar lies on the various issues that confront our society and in which direction that mistrust lies is pretty much what defines our political parties isn’t it?

  73. Darren F. says:

    This article makes a silly claim. It attempts to create a distinction between potential and actualized state violence, ignoring the concept of threat. A thief pointing a gun threatening “your money or your life” need not actually shoot before he can be deemed to be employing aggression.

    If the state had lots of guns yet was unwilling to use violence against me to impose its will, I’d speed right by the cop while laughing at him. Instead, I let up on the gas when seeing a cop because of the _threat_ of state violence that will be certainly be unleashed upon me if I don’t promptly comply with any and all state commands. As the Eric Garner incident demonstrated.

    Yes, people need rules of interaction and rules around use of force when they come into contact with each other. A stateless society is simply a society where lawmaking, enforcement, and defense is distributed rather than centralized…distributed all the way down to the individual level.

    Individuals seeking trade, travel, and human relations off their own land (i.e. everyone) would then band together in various voluntary associations and negotiate voluntary group agreements agreeing to rules and consequences surrounding the ways they want to have dealings with each other. To avoid violent conflict, individuals would simply not have dealings with those with whom they can’t negotiate such agreements. Just as modern sovereign nation-states treat each other.

    Any alternative to regarding an individual as a sovereign self-owner is to advocate some measure of his enslavement to the violently imposed will of other individuals. This cannot be defended on any grounds.

  74. @Darren F.:

    A stateless society is simply a society where lawmaking, enforcement, and defense is distributed rather than centralized…distributed all the way down to the individual level.

    Law requires a state.

    If rule-making and rule-enforcement are devolved to the individual level you are in the state of nature by definition.

  75. Darren F. says:

    @Steven L. Taylor:

    Yes, the term “law” implies a state forcibly imposing it. I imprecisely used the term lawmaking across both state and stateless societies just to more succinctly convey my point.

    However, no, I do not agree with you that a voluntary agreement among individuals can somehow form a state (you may be thinking “government” which has a broader definition than “state”). The term state refers to an incorporeal entity supposed to possess rights that no individual has (e.g. the right to tax). A state also arbitrarily asserts dominion over individuals on their own land that have never agreed to the terms of such domination.

    Rule-making and rule-enforcement by mutually agreed-upon contracts involve nothing of the sort. Such contracts may include terms for binding dispute arbitration and penalties including use-of-force against non-compliant parties. But the difference between this and a state is that every element of the rules laid out in the contract is up to me and the other equally sovereign individuals to negotiate, delegating explicitly only our own individual rights in the process.

  76. @Darren F.:Yes, I am aware of the state/government distinction.

    I expect that we are going to have to agree to disagree.

    Apart from utopian philosophy, however, true self sovereignty and constantly negotiated contracts among wholly sovereign individuals is impossible.

    Indeed, that the point the both Hobbes and Locke reached (in different ways).

    It all sounds great, but reality doesn’t work that way.

  77. Darren F. says:

    @Steven L. Taylor:

    Yes, perhaps we’ll have to disagree and I understand if you don’t wish to discuss at length here. However, with all due respect, asserting “reality doesn’t work that way” is not an argument. I will provide argument and tangible examples that reality does indeed work that way.

    As Adam Smith with his invisible hand and others have observed, optimal emergent order arises from uncoerced interactions of people trading to optimize their own individual outcomes. Including the marketplace for services of rule-making, rule-enforcement, and defense. For some real world examples:

    – Hundreds of heavily armed nation-states, including many headed up by murderous tyrants, manage to trade, set mutually agreeable rules, form alliances, negotiate differences, and thrive without any global overlord proscribing actions.
    – The Internet functions as a viable global network of data exchange only through dint of voluntary, negotiated cooperation to respect mutually agreeable rules and coordination to use common protocols with no centralized authority compelling anyone to do anything
    – Global virtual communities like eBay wherein resorting to state mechanisms is impractical instead evolve non-violent mechanisms of self-policing
    – The D.C. Beltway market for legislative advantage whereby campaign contributions, information, favors, and influence all actively trade in quid-pro-quo deals among some of the least principled people on the planet without a single written rule or means of contract enforcement
    – Countless niches of social life (e.g. romance and dating) and daily life (e.g. negotiating turf rights at tailgate parties or on public beaches) where the state has not (yet) invaded to impose its will function fine with people respecting boundaries and abiding by conventions with no written rules or enforcers.

    The reason all these stateless spaces self-govern so effectively is not because everyone participating is idealistic or bad actors don’t exist. They self-govern because of the patent incentives for everyone to do so rather than not. Every problem or shortcoming in a marketspace presents a pain point participants will pay to solve, either with money, time, effort, compromise, or acquiescence to follow a rule. Where it is advantageous, 3rd party private providers will emerge to specialize in and compete to offer helpful services. In the same way that under our current society lobbying firms arise to broker the sale of state-granted privileges and private security guards arise to provide crime protection for communities that pay for it. Nothing is utopian about this. This is business. This is responding to incentives. This is how people behave.

    Nor is it utopian to observe what comes around goes around in dealings with others. When bearing the consequences for one’s own actions becomes integral for justice, a stateless society would far more attentively track such matters. In such an environment it is an understatement to say aggression doesn’t pay compared to peaceful trade. A single act of aggression can destroy a man’s reputation for life. When everything and everywhere is privately owned, a person is dependent on other’s willingness to trade with him to live more than a subsistence lifestyle.

    In this way a stateless society would make aggression an unsustainable undertaking. Even if a fraction of our country were to wake up one morning, abandon all regard for person and property, and switch to savagery, thievery, and fraud as their new career choice, they would find themselves facing a difficult path. Dedicated to destruction rather than production, operating in the shadows under the stigma of illegitimacy, they wouldn’t be able to earn or otherwise accumulate capital to fund their activites. No artificial risk-premium would exist to exploit in historical bad-guy markets like drugs, prostitution, or gambling as these markets would all be fully legitimately served by honest businessmen. No investors would fund aggressors. No laws or state mechanisms would exist for them to exploit. They would be going up against a entire distributed network of highly-motivated and well-equipped defensive forces including freely armed individuals across society and well-paid, well-equipped security experts dedicated to defense work. Even feeding, housing, and healing themselves would become problematic for aggressors, as peaceful members of a stateless society would insist on knowing whom they were dealing with and be quick to ostracize aggressors from all trade for safety, liability, and PR reasons. This behavior is not utopianism, just scaled up, coordinated, common sense, tit-for-tat behavior that ordinary people live by at an individual level every day.

    You astutely point out in your article that most in this country support our current government. They have been brainwashed into believing that state domination is required to have any measure of peace, order, and liberty. Accordingly, they are willing to subjugate themselves to living under countless onerous laws and regulations circumscribing every aspect of their personal and business lives. Soviet-state style invasions of privacy. Rampant police physical abuses. Unending foreign wars. Wall Street bailouts and special interest boondoggles. With over half of their income overtly going to taxes with much of the rest going to indirect taxes and the inflation tax.

    If so many people value peace, order, and liberty so dearly as to put up with all _that_ to receive just a sliver, then I think there is more than enough market demand for private services providing wholesale peace, order, and liberty. The free market can deliver the help people want and need in governing their affairs without the state oppression and extortion.

    But more important than the practical advantages of living in a free society is the escape from the turpitude of statism. Regardless if by gun-toting state enforcers or by gun-toting private thugs, threatening force against a peaceful individual to coerce his behavior is abhorrent and immoral. For any reason. Regardless of any righteous-sounding rationalization like “in the name of the greater good/people/god/constitution/glorious leader,” etc.

    According to my beliefs I can promise to never initiate force against those who disagree with me. Those who disagree with me cannot say the same. 🙂

    Thanks for the discourse – a meaningful discussion and rewarding topic.