MonoRealism Philosophy Site

Governing Principles

Part D: Judges and Generals

The legislature and executive are elected by the people, but what about the third arm of government, the judiciary?

The judiciary needs to be independent from the rest of government to preserve the separation of powers. Dictatorships often control the judiciary by directly holding the pursestrings and punishing "recalcitrant" judges. That kind of attitude was even seen in the USA recently, where Congress tried to specifically command the judiciary in the Terri Schiavo case (where a husband wanted to allow his permanently comatose wife to die). The judiciary, rightly, slapped Congress's wrist – resulting in howls of outrage for daring to maintain their constitutional independence! And in a pointed demonstration of the value of the separation of powers even in a mature republic, the Governor sent State police to prevent the Court's decision from being carried out – and were stopped by a face-off with local police loyal to the law and the court.

Yet like the other arms of government, as our agent ultimately it must be under the control of the people. However, as discussed regarding direct democracy, that doesn't mean the control has to be or even should be direct.

Consider the Public Service. For continuity and accumulation of expertise, it makes sense for them to be professionals hired by and responsible to their own superiors – but with the government having the power to decide who those superiors are (and direct them according to policy).

This provides a model for the Judiciary. Given the expertise in the law and fine judgement required for an effective judge, it would make little sense for the majority of the population to decide who would be best in a demanding and highly intellectual field they know little about. So that should be under the control of the experts, the judiciary itself. The judiciary can't be completely independent however, as that would contradict the proper nature of government. So it makes sense for the senior levels to be appointed by the elected government.

On the other hand, the elected government mustn't have the unfettered right to choose their own patsies. Nor is it good when their power to approve or veto leads to such sorry spectacles as the recent choices of High Court judges in the USA. Any judge with a consistent judicial philosophy (the kind of judge we need the most) had no chance of being accepted by one or other of the parties deciding, so the candidates practically went out of their way to affirm their lack of principles.

So I suggest that the best system is for judges themselves to elect a limited number of candidates they deem best, which the legislature then must choose between by vote. The legislature could refuse to appoint any of them – but as with a deadlock in Australia between parliament and the Senate, this should lead to an election in which both the parliament and judiciary make their suggestions, and people decide the fates of both the government and the candidates.

Similar considerations apply to the police and military, where what is required are professionals who are good at their job, yet are ultimately appointed by and responsible to the elected government.

Size Matters

We have noted before James Madison's view that a large republic aids the defence of liberty via the diversity and number of interest groups within it, so that no one group can gain enough power to violate the rights of others. We have also noted the value of a system of state governments in counterbalancing the political and armed power of the federal government.

The conclusion naturally follows that large countries are better than small ones. Of course there are other reasons for this as well: the size of the country is an important part of its economic productivity, which is what pays for the army that defends it and the other institutions of government.

That is one of the problems of secessionist movements. Secession can be desirable if it is based on a genuine desire to actually advance the freedom of the people there. But unless it does achieve a significant improvement there, all it can achieve is an impoverishment of its people, by at least partially cutting them off from the economy of a larger country without any counterbalancing increase in freedom. Sadly, the motivation for many secessionist movements is simply the reverse of the Madison principle: to split off a small enough, uniform enough fiefdom that the local ethnic, religious or other majority can gain the power to impose its will within its borders.

Is there an upper limit? For example, would one world government be the ideal? Under present circumstances this would most definitely be undesirable – the most likely pretender to that throne, the United Nations, is largely a dictator's club, which is hardly a good foundation for a world government.

The main problem with a world government is the potential for it to decay into a world dictatorship, or a world anything which violates individual rights without any possibility of opposition or escape. Nevertheless, I think in the long run such a system is desirable, provided it was set up in the same manner as a valid national government. That is, it would exist solely as the defender of individual rights, with national governments remaining but legally subservient to the global one: much like the relationship between state and national governments. In that way, a world government would add a layer to the defence of freedom, with the national governments providing a counterbalance of force to prevent its corruption.

Paying the Piper

The final question we need to address is how to pay for the government. Is involuntary taxation valid, or a violation of individual rights? What other methods might pay for the government?

The first point is that the role of the government does have to be restricted to defence against physical force. There is no moral justification for governments taking money from some for the unearned benefit of others. But what about taking money to pay for the proper role of government?

In an interview with Playboy magazine, Ayn Rand said:

In principle, I believe that taxation should be voluntary, like everything else. But how one would implement this is a very complex question. I can only suggest certain methods, but I would not attempt to insist on them as a definitive answer. A government lottery, for instance, used in many countries in Europe, is one good method of voluntary taxation. There are others. Taxes should be voluntary contributions for the proper governmental services which people do need and therefore would be and should be willing to pay for – as they pay for insurance. But, of course, this is a problem for a distant future, for the time when men will establish a fully free social system. It would be the last, not the first, reform to advocate.

Her last point is certainly true. Attempting detailed answers to that question from where we are now would be as wise as trying to work out the best method of interplanetary travel before we managed to get into space: some "difficulties" will vanish while others we can't imagine may arise. Nevertheless, it is worth exploring the principles involved.

Methods such as lotteries may indeed have a place. But lotteries raise only about 0.5% of the country's annual budget in the USA and 1.5% in Canada, an insignificant proportion of even their valid spending. And if such things were not a government monopoly, they would have to compete with private alternatives: and how could one justify an enforced monopoly?

Fines on criminals are another part of the answer, and we'll look at that again in the philosophy of law. But again, it is hard to see how that could pay for much more than the legal system involved in their prosecution.

I think fees for government services are the basic answer – but perhaps in a surprising way. The police, for example, can't simply refuse to investigate a crime if the victim can't put up the costs pending a successful prosecution! The government can only justify its monopoly on force if it does defend its citizens, all of them, whatever their income. The poor would be better off arming themselves than assigning their right to self defence to a government that did not defend them – a disaster, for all the reasons that make governments a necessity.

In addition, the benefits of a good government are at once substantial, mainly indirect, and diffuse. Everyone gains from low crime rates, fraud-free commercial systems and keeping enemy nations out, whether or not they themselves are the victim of a crime or a war happens in their lifetime. Indeed, to the extent that they live out their lives in peace, the government is doing its job properly.

So I agree with the "user pays" principle: but when it comes to the proper role of government, everyone is a user. I therefore suggest that compulsory taxation is not the initiation of physical force (when it is to pay for governmental defence of individual rights only): any more than it is the initiation of physical force to insist on payment for any other service used voluntarily. Rand was right to say that what people are paying for are things they need and should be willing to pay for. But not only do they need them (objectively, for all the reasons that make governments necessary), but in choosing to live in a civilised society they are using them by choice, and not merely should be willing to pay for them, but in fact owe the money.

Note that an involuntary aspect of government is not limited to taxation, but is inherent in government itself. Because a government requires a legal monopoly on force within its jurisdiction (except in emergencies), all who live within its borders have to abide by that whether they think they should or not. That is what a monopoly means. People can always opt out by living in the wilderness and losing all the advantages of civilised society – but living outside of society (which includes, not preying on that society as a criminal) are the only terms on which they can consistently and justifiably live beyond its jurisdiction, taxation and protection.

How taxes should be raised is a question of efficiency, cost and fairness, but in principle could be income taxes, company taxes, financial taxes, consumption taxes, etc. (preferably, just one of those, and the one involving least imposition on the direct payers). Everybody who chooses to live by trade with other people still pays directly or indirectly (a tax in any area adds to prices, so the cost gets distributed). Tax proportional to income (or expenditure, etc.) is justifiable because the more you have, the more material benefit you gain from a proper government.

Bringing Balance to The Force

In summary, there are many aspects to the philosophy of government, but as government properly exists solely to defend individual rights, its primary goal and role is keeping the government on the "straight and narrow" of doing that and that alone, and its secondary role is helping it achieve its purpose by functioning effectively. Limiting government power to its proper sphere requires a multilayered defence with a sound, consistent philosophy as its necessary foundation, and interlocking balance of power as its primary tool. Then not only will "government of the people, by the people, for the people" not perish from the Earth, but it will truly be for the people – for each and every one of them as sovereign individuals from whom and for whom it exists.

© 2006 Robin Craig: first published in TableAus.