The State must be greater than the individual.
To some readers, this seems obvious and intuitive–how could it not be so? To others, though, particularly of the lately-popular “libertarian” variety, this seems like heresy. Under a particular conception of rights, to assent to the proposition that the State is greater than the invididual is so submit to chains and shackles.
Nevertheless, it is true, and must be, for the very concept of the State to have any meaning at all. First let’s define the State, for the purposes of this article, using the Oxford English Dictionary’s definition: a poltical community living under a single system of government.
With that definition in mind, let’s look at why the State must be supreme.
First and foremost, under any conception of the State, by definition, it must have a government–that is, a means for executing the policy and business of the State. Whether your ideal State’s form of government is European socialism, totalitarian Soviet communism, traditional libertarianism, a self-governing workers collective, or a lassez-faire unrestricted capitalist paradise, it still must have a government. That government, no matter what its form or construction, exists for the purpose of making decisions for the collective–for the State. In some forms of government, like direct democracy, that government is indistinguishable from the people of the State, but in most forms, some sort of representation or council is tasked with making those decisions. Those decisions form the State’s laws.
What is the fundamental purpose of law?
To restrict individual rights.
Let’s look at the two premier political philosophers’ conception of the world without the State to see how that’s true.
First, let’s look to Hobbes, who believed that without the State to make laws, there would be no law, which would mean that everything is permissable. Let’s look at the Hobbsean rationale for prohibiting murder.
Such a law might read something like this: “it is illegal for an individual to take the life of another individual” or, maybe, “it is illegal for an individual to take the life of another except in self defense.” The rationale here is that unless the government told people they couldn’t murder other people, they could and would.
“But wait,” someone will argue, “all that law does is protect my right to live, not restrict someone else’s right.”
Not under the Hobbsean framework, because if I were an aspiring serial killer, prior to the State and the law, I was free to pursue my dreams uninhibited. Now my rights have been trampled on! I’m a slave to the State! Since in the state of nature, nothing was restricted, any law at all is a restriction of my rights.
Bottom line? The law is designed to restrict my rights.
Let’s say you don’t believe Hobbes gets the state of nature correct. Let’s say you believe Locke had it right, and that men intuitively and generally know right from wrong. Let’s say you believe that in the state of nature, life would be all right, because even if a group of people didn’t have a State and a government to make or enforce laws, they would generally enforce common, mutually beneficial codes of conduct on their own.
The problem is, even under that framework, experience in the real world tells us that just because mankind understands something to be right or true does not mean it will act in a way the comports with that rightness or truth. Locke, even with his more charitable idea of what an ungoverned space would look like, can conceive that we might need a law to prohibit murder, but with a different justification.
To Locke, prohibiting an individual from killing another is not aimed so much at the initial murderer (who knew it was wrong and that he would likely be punished for violating “natural law” and social mores anyway), but at the, or more properly, the victim’s family.
From the Lockean perspective, “it is illegal for an individual to take the life of another except in self defense” is the formation of the law that prevents me as an individual from taking justice into my own hands and meting it out as I saw fit. By agreeing to the law, I’m agreeing that I don’t get to be a vigilante, but in exchange I get the promise that other people won’t be vigilantes either.
Guess what, just as in the Hobbseian construct, the law restricts my rights, albeit with different justifications and expectations from the State, but the bottom line reference restrictions on individual liberty remains the same.
So now that that is established, it is pretty simple–in order for any of the above to mean anything, the law must be able to be enforced. Even if–especially if–certain parties do not wish it enforced. To do this requires an entity larger than the individual, empowered with certain rights and authority that the individual does not have.
Let’s use a hypothetical State with one (!) law–the law prohibiting murder–as an example of how this plays out with the individual being greater than the State and then with the State being greater than the individual.
First, Billy, in broad daylight, stabs Jim to death.
This is noticed by the citizens of our hypothetical state, who also note that it violates the State’s one law. Since there is no agreed upon enforcement mechanism in place, let’s have everybody in the entire fictional State get together to decide what must be done to the murderer Billy.
Whatever the resultant penalty is–whether it is a fine, death for Billy, the confiscation of his property, whatever, it is going to be bad for Billy. To make the point even more clear, let us say there is a unanimous agreement in our state on the penalty. In the case that Billy has suddenly decided to become a model citizen post murder, he will turn himself in and submit to the judgement.
In the case that he doesn’t, what then?
If the individual, as some have argued, is greater than state, when Billy does not submit to the judgement because he as an individual has the moral authority not to do so, the State–in our case laid out above, the entirety of the population–has no right to enforce the judgement. The State, even with only one law, has failed. It is meaningless.
If we go all the way through with the same scenario but we hold the State to be greater, when Billy does not submit to the judgement, we can all agree that the State has the moral authority to enforce it on him, whether Billy objects to it or not. The State is greater than the individual and the law is not meaningless.
We can look at restrictions on Billy’s victim Jim’s family the same way. If the State–again in our extreme case a direct democracy of all the citizenry–decreed that Billy should pay a fine but not be put to death, Jim’s family might object. If the individual is greater than the State, Jim’s family can kill Billy without fear, and again the State and it’s laws are meaningless. If, however, the State is greater than the individual, if Jim’s family takes matters into its own hands, the State is empowered to execute a similar judgement against them as it did Billy, and the State and its laws survive and are not meaningless.
No matter how you conceive of the law, and no matter what kind of government you espouse, unless you call for total anarchy, for a return to the state of nature, you must believe the State superior to the individual.
To hold otherwise makes no sense.