The State

Anthony de Jasay, courtesy of the author
Jasay, Anthony de
(1925- )
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First Pub. Date
Indianapolis, IN: Liberty Fund, Inc.
Pub. Date
15 of 33

2. The Adversary State

Tinker's Licence


Utilitarianism favours activist government mainly because it is constructed to ignore a whole class of reasons for hastening slowly.


Judging things on their merits with an open mind fatefully attracts open minds.


It would be unhistorical and worse to imply that the state will in general just up and do whatever most efficiently ensures its political survival and the fulfilment of such other ends as it may have. On the contrary, it is, time and again, liable to choose relatively inefficient means to its ends, and even retard or hinder their attainment, for its feasible choices are to some extent pre-set for it by the Zeitgeist, the ethos of time and place. It cannot, without endangering the often delicate compound of repression, consent and legitimacy which it is aiming at worst to maintain and at best to strengthen, resort to actions for which it has, as it were, no ideological licence.


At the same time, in one of the chicken-and-egg sequences which seem to govern much of social life, ideology will sooner or later providentially issue the licence for precisely the sort of action which it is efficient for the state to undertake. Thus when we speak of "an idea whose time has come" (the development of the "base" producing the corresponding "dominant ideology"), we must also bear in mind the equally interesting inverted version, i.e. that the time has come because the idea has called it forth (the "superstructure" bringing about a corresponding development of the "base"). This preliminary is offered to help put in perspective the reciprocal relations of the adversary state and utilitarianism.


It is fairly conventional practice to discern three stages in the evolution of the state's functions (though they are better regarded as heuristic rather than as historical, real-time stages). In the first, a vaguely Hobbesian state resolves a basic prisoners' dilemma by enforcing respect for life and property, such enforcement being taken to include protection against a foreign state also. When political theory is handled as if it were economics, such a first-stage state can be assimilated to the single-product monopolistic firm making one public good, e.g. "order." The second or Benthamite sort of state would then resemble a multi-product firm which provides a diversified range of goods or services whose profitable free-enterprise production runs up against some prisoners' dilemma or at least a "free-rider" problem, and consequently requires coercion to cover its costs. (Voluntary arrangements lacking coercion would by assumption produce either distant substitutes, or different, possibly smaller, quantities of close substitutes of such goods.) What additional goods or services the state shall provide, or what additional functions it should undertake, is to be decided on their merits. In the third stage of the evolution of its functions, the state will undertake to produce the range of public goods thus selected and social justice as well.


There is no such dividing line between these stages as there is between the state of nature and the state. Each stage contains all of the "preceding" ones and is recognizable by the upsurge of one type of function without the abandonment of the others. When the balance of consent-seeking political advantage is in favour of the state restricting hours of factory work and laying down rules of safety, providing road signs, lighthouses and air-traffic controls, building sewers, inspecting abattoirs, obliging travellers to be inoculated, running schools and ordering parents to make their children attend them, teaching peasants how to farm and sculptors how to sculpt, adjusting a practice, reforming a custom, imposing a standard, the licence for undertaking these piecemeal improvements is provided by utilitarian doctrine. Its operation, by now often an unconscious habit of thought, is best understood as a sort of two-stroke argument, whose first stroke is a rejection of a priori conservatism, an implicit denial that existing arrangements contain a presumption in their own favour. Utilitarians reason, to pick up one of the pearls Michael Oakeshott is in the open-handed habit of casting before his readers,

as if arrangements were intended
for nothing else but to be mended*60

as if everything could and should be looked at with an open mind, with a view to deciding whether it shall be tinkered with or not.


The second stroke of the argument (which could be so formulated as to subsume the first)*61 is that actions are good if their consequences are good. ("Act-utilitarianism" gets to this result directly, "rule-utilitarianism" indirectly.) Therefore, we ought to alter any arrangement which would be improved thereby. Despite his non-interventionist reputation, this was precisely J. S. Mill's position. He held that a departure from laissez faire involving an "unnecessary increase" in the power of government was a "certain evil" unless required by "some great good"—greater than the evil in order that the balance of good and bad consequences should be good. He at least had the virtue of making it explicit that the general form of the argument for tinkering must provide for the offsetting of a possible bad consequence (if only as an "empty box"), a form which makes advocacy of reforming an arrangement a somewhat more exacting task, for the good consequence had then better be very good.


Judging actions by their consequences is a difficult and peculiar rule, as is easily seen by considering the intrinsic nature of consequences. If we do not know what consequences an action will bring, the rule means that we cannot tell a good action from a bad one until after its consequences have been duly produced. Apart from the absurd moral implications, such an interpretation renders the doctrine quite unhelpful. On the other hand, if we know, or even think we know, "for certain" what the consequences are, we do so because we think they must surely, predictably follow from the particular action. If so, they are functionally inseparable from it like death is from beheading. In such a case, if we were to say "this action is good because its consequence is good," we would really be saying no more than the action is good because, taken as a whole, it is good. This would be tantamount to recommending those reforms which improve arrangements—a wholly empty rule.


Utilitarianism does not, however, allow us to consider an action (say giving alms) to be good if its consequence (the beggar gets drunk on the money and is crippled by a passing car) is bad. Conversely, it requires us to approve an action if we would approve of its consequence. Between the limiting cases of not knowing the consequence at all and of knowing it for sure, lies the huge problem area where utilitarianism is bound up with questions of imperfect foresight. Over this area, policies appear to have several alternative chains of consequences ("ex ante"), though only one of the alternative chains can materialize ("ex post"). The ex ante consequences appear to have greater or lesser probabilities. The proper guide to political action is thus no longer "maximize utility," but "maximize the expected value of utility." The instant we say this, however, we let loose an avalanche of problems, each of which is insoluble except by recourse to authority.


Each alternative consequence can perfectly well appear to have different probabilities to different persons. These persons, in turn, may be (a) well- or ill-informed, and (b) astute or stupid in converting such information as they have into a probability assessment. Given the (Bayesian) nature of the probability in question, does it make any sense to say that they use the wrong probability assessment in valuing uncertain consequences?


On the other hand, it must seem hard to accept that a policy should be judged in terms of the possibly ill-informed, illusory, naive or biased probability assessments of the persons who are to enjoy or suffer its consequences. What if they have been misled by propaganda? And if several persons are affected by a policy, whose subjective probabilities should be used to value the alternative consequences? Should each person value the consequence to him by his assessment of its probability? It is obviously tempting to discard some of these probability judgements, retain the "best" or calculate some weighted average of the several best ones, and use it in maximizing expected utility.*62 Whoever has authority to choose the "best" judgement, or the method for calculating a composite one, is in effect implicitly choosing his own.


Moreover, as each alternative consequence is capable of affecting several persons, "maximizing expected utility" would be an unhelpful rule even if the problems arising out of the term "expected" were taken to have been resolved by resort to authority. The meaning of "utility" must be resolved, too, so that it is agreed to represent a summation (no weaker method of ranking will go far) of the utilities of all the persons liable to be affected. In the language of the trade, it must be interpersonally integrated, "social" utility. Interpersonal integration of utility is no less problematical than interpersonal probability. Some aspects of it are treated in the next section in order to show that it, too, depends on authority for its resolution.


When Bentham in the Fragment on Government defined "the measure of right or wrong" as the happiness of the greatest number, he was manifestly conducting a discourse not on what was ethically right, but on how to choose between one action and another in the mundane business of legislation and government, and if such a distinction is on scrutiny hard to uphold, it is one practical men readily fall in with. (We may also recall, though it is perhaps no excuse, that Bentham wrote the Fragment in great part in order to fight Blackstone's doctrine of legislative inaction, which he saw as an apology for complacency and sloth.)


The utilitarian prescription, then, which the state and its leading servants made their own, was to investigate existing arrangements, to report upon them to Parliament and public opinion, and to prepare reforms from which good consequences would ensue. The proposed change would be either one for which "effective demand" was already perceptible (though not always or mainly on the part of the prospective beneficiaries), or one for which such demand could be generated. It would seem that the more governments came to rely on popular support (in England in the last third of the nineteenth century), the more willing they became to arouse demands for change instead of letting sleeping dogs lie. (Neither the wholly repressive nor the fully legitimate state has a rational interest in waking up sleeping dogs.)


The piecemeal improving approach, which ceaselessly inspects arrangements of society, finds one that could be usefully "mended," gains support first for and then from mending it and, with added strength, proceeds to the next one, is, as it were, purpose-built to isolate the proximate consequences of each action from the cumulative consequences of a series of them.*63 Though the sum of the trees is the wood, the tree-by-tree approach is notorious for its built-in bias to lose sight of the wood. One of the pitfalls of judging actions by their consequences is that the latter, properly considered, form a virtually never-ending chain most of whose length stretches into an indefinite future. In human society, perhaps even more hopelessly than in less labyrinthine universes, ultimate consequences are in general unknowable. In this lies the innocence, both touching and dangerous, of the standard utilitarian advocacy of active government.


Take, in this context, the textbook injunction regarding state action to deal with "externalities": "the presence of externalities does not automatically justify government intervention. Only an explicit comparison of benefits and costs can provide reasonable grounds for such a decision."*64 The statement is impeccably cautious and disarming. What could be more innocuous, more unexceptionable than to refrain from intervening unless the cost-benefit comparison is favourable? Yet it treats the balancing of benefits and costs, good and bad consequences, as if the logical status of such balancing were a settled matter, as if it were technically perhaps demanding but philosophically straightforward. Costs and benefits, however, stretch into the future (problems of predictability) and benefits do not normally or exclusively accrue to the same persons who bear the costs (problems of externality). Therefore, the balancing intrinsically depends both on foresight and on interpersonal comparisons. Treating it as a pragmatic question of factual analysis, one of information and measurement, is tacitly taking the prior and much larger questions as having been somehow, somewhere resolved. Only they have not been.


If it is as good as impossible to foresee all or the ultimate consequences of actions upon very complex social matter, while the proximate consequences are set out in a lucid piece of explicit cost-benefit analysis, the outcome of arguments is prejudged by their form. Advocacy of the action is conducted in the language of rational argument by open minds to open minds. If the visible good consequences are found to outweigh the visible bad, it is reason itself which calls for "improving intervention." Opposition to it has few precise facts, little positive knowledge to marshal. It is reduced to uneasy premonitions, vague surmises of roundabout side-effects, dark mutterings about the undefined threat of state omnipresence, creeping collectivism and where will it all end? Its argument, in short, will bear the odious marks of obscurantism, political superstition and irrational prejudice. Thus will the open-minded utilitarian sheep be separated from the intuitionist goat along progressive-conservative, rational-instinctual, articulate-inarticulate cleavages.


These are quite unintended and slightly absurd consequences of the state needing, as it were, a licence to tinker, a rational justification for the piecemeal gathering of votes and clout. They nonetheless supply a perfectly possible answer (though there are others) to the puzzle of why, for the last two centuries or so, most brainy people having (or at least being trained to have) an open mind, have felt more at home on the political left, though it is easy to think of some a priori reasons why they might prefer to congregate on the right instead.


An object lesson in unintended and unforeseen effects is the fate of Bentham himself. He meant to provide a charter for individualism, and he fought in the name of liberty against a sluggish, obscurantist and, to his mind, despotic civil service (which regarded him as a crank and a nuisance). Yet Dicey, for whom the period from the Reform Bill to about 1870 was still the phase of Benthamism and individualism, calls the last third of the century the phase of collectivism and makes a chapter title out of "The Debt of Collectivism to Benthamism."*65 Incontestably, at least in English-speaking countries, Bentham has a stronger claim than the founding fathers of socialism to be the intellectual progenitor of the progress (as roundabout and occult as his parenthood of it was unintended) towards state capitalism.


The intellectual case for political utilitarianism rests on two planks. One, set lengthwise to link present action to future consequences, is the assumption of sufficient predictability. As a matter of day-to-day political judgement, the assumption of predictability tends to be replaced by the simple exclusion of the distant and the long term. Practical consideration is given to readily visible proximate consequences only ("a week is a long time in politics"). Of course, if the future does not matter, not dealing with it is as good as having perfect foresight and dealing with it. The second plank is, as it were, placed crosswise and lets one person's utility be balanced against that of another person. To this balancing we must now turn.

Notes for this chapter

Michael Oakeshott, "Political Education," in Peter Laslett (ed.), Philosophy, Politics and Society, 1956, p. 2.
For example, it could be stipulated that no arrangement must be tinkered with unless doing so produced a greater gain in utility than the loss, if any, entailed in the act of tinkering, where utility would include the value that one may attach to the mere non-disturbance of an existing arrangement in addition to its utility in the customary, narrower sense.
Frank Hahn, "On Some Difficulties of the Utilitarian Economist," in Amartya Sen and Bernard Williams (eds), Utilitarianism and Beyond, 1982, pp. 195-8, has a particularly lucid exposition of this question. Cf. also P. J. Hammond, "Utilitarianism, Uncertainty and Information," in the same volume.
It is only fair to remind the reader that Sir Karl Popper, in his Poverty of Historicism, 2nd edn, 1960, approves of piecemeal (at least as opposed to large-scale) "social engineering" on the grounds that the piecemeal approach allows being "always on the look-out for the unavoidable unwanted consequences" (p. 67). Being on the look-out is certainly the proper attitude. It is effective when the consequences are easy to identify and quick to appear; it is not when they are not.
William J. Baumol, Welfare Economics and the Theory of the State, 2nd edn, 1965, p. 29.
A. V. Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, 1905.

End of Notes

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