Elizabeth Anscombe was one of the greatest twentieth century philosophers and, in this week’s column, I’d like to consider her argument in her dense and difficult article “On the Source of the Authority of the State.” Anscombe is not hard to understand in the sense that she uses many technical terms that non-philosophers are unlikely to know. She writes in ordinary English. But her thought is expressed in a very compressed way that requires close attention in order to be understood. I am not sure I have unraveled all the twists and turns of her argument, but what follows is the best I can do.

One thing about her argument that Rothbardians will appreciate is that she regards the authority of the state as very difficult to justify. Before examining why she thinks so, though, we first need to understand what she means by authority. Suppose that the state requires you to do something that you don’t want to do, such as pay taxes. Why should you do it? One answer is that if you don’t, then the state will do things to you that are even worse for you than surrendering your money, such as going to prison. That is certainly a reason for you to pay, but this isn’t what Anscombe has in mind by authority. If a gang like the mafia demands that you pay them money and threatens to beat you up or kill you if you refuse, we wouldn’t say that the mafia has the authority to make you pay.

Another answer to the question why you should pay taxes or do something else that the state demands that you do but you don’t want to is that there are laws requiring you to do so. But this isn’t a good answer to the question why the state has authority. We could imagine that the mafia establishes a written code telling people what “protection” money people have to pay to it. Again, we wouldn’t say that the mafia has the authority to issue such a code.

Further, clubs often have rules that require various things and perhaps have fines for members of the club who don’t follow these rules. We wouldn’t say that the club has the authority to make you pay a fine; you can leave the club if you don’t pay, but you can’t leave the state (unless it allows you to do so). Why does the state have the authority to do this? As Anscombe puts it:

But government is always with us. In the present state of the planet one can hardly escape beyond the frontiers of government. (It is interesting to note that in the last century, when it still looked as if people could do just that, a legal maxim was invoked or invented: Nemo potest exuere patriam—no one can shuck off his country—to deny this.)

We are now at last in a position to answer our question: What does Anscombe mean by the authority of the state? She means the right to command obedience. But this raises a new question: Why does the state have this right? Anscombe has given us a number of cases in which authority doesn’t exist but that doesn’t establish that there are any in which it does.

Her answer is that the state performs an essential task, that of punishing people who inflict violence on others. You might ask, why do we need the state to do this? Suppose we were living without a state. Wouldn’t people have the right to punish people who inflict violence on them?

Anscombe’s surprising answer is that they wouldn’t. You do have the right to use force to repel violence against you, but that is all. You don’t have the right to go after the aggressor and punish him. Why not? Anscombe’s response is that punishment can’t be meted out by people acting on their own volition. There must be some established procedure to try people and find them guilty before punishment becomes legitimate. If this is correct, she contends, she has answered the question of the state’s authority:

Our original question: what distinguishes the authority of government from control by bandits? Has received an at least preliminary answer: the distinction lies in the association of government with a system of administration of justice.

She remarks:

A parallel argument for the right of punishment could not supply the defects in e.g., Locke’s argument and so show that men in a state of nature may—nay it is needful that they should—severally punish those who unjustly attack them and their neighbors. For action on such a principle will perforce be action against those whom a man believes to deserve punishment. His formation of opinion then takes the place of trial in our account. In consequence of such formation of opinion he is going to do some attacking himself. But on the same principle those who think otherwise than he will then equally attack him. And so instead of promoting a peaceful normality, such a principle would promote a general warfare within which even the quietest (namely those who failed in that duty of punishing unjust attackers) could hardly hope to go safely. Hence I denied that right of punishment.

I don’t think that this argument works. Why couldn’t people in a state of nature establish private courts that would work according to a set of non-arbitrary procedures? Murray Rothbard, most notably in The Ethics of Liberty, and other libertarian anarchists as well, have proposed exactly this arrangement. Unfortunately, Anscombe does not consider this option.