Revisiting "Do We Ever Really Get Out of Anarchy?

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Revisiting “Do We Ever Really Get Out of Anarchy?”
Alfred G. Cuzán
Professor of Political Science
Department of Government
The University of West Florida
Pensacola, FL 32514
acuzan@uwf.edu
Prepared for presentation at the 2007 meeting of the Northeastern Political
Science Association, Philadelphia, November 15th. Earlier versions were
delivered at the Southern Political Science Association, New Orleans,
January 6th, and the Florida Political Science Association, March 31st.
Many thanks to J. David Alvis and Charles W. Anderson, who read the
original essay and offered comments and encouragement. It goes without
saying that responsibility for any errors rests squarely on me.

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Revisiting “Do We Ever Really Get Out of Anarchy?”
Alfred G. Cuzán
Department of Government
The University of West Florida
Pensacola, FL 32514
acuzan@uwf.edu
Almost three decades ago, I published “Do We Ever Really Get Out of Anarchy?”1
The answer I gave is that we do not, that government only substitutes one kind of anarchy
for another. In this paper I revisit the eponymous question, drawing on Hobbes, Locke,
and Rousseau, as well as several contemporary scholars, for support.
First, though, a word about the meaning attached to key terms. Paraphrasing
Locke, I define political authority as “the right of making laws with penalties of death,
and consequently all less penalties . . . and of employing the force of the community, in
the execution of such laws . . . ”2 and, following Hobbes, I define political power as the
“means” to compel obedience to the laws, i.e., “the sword.”3 The state is a sovereign
entity which exercises political authority over a specified territory. Government is the
set of state institutions, local, regional, and national, each more inclusive in area and
usually vested with greater authority and possessing greater power than the last, sharing
in the sovereign authority. Regime is the form government takes, e.g., democracy
(parliamentary or presidential) or despotism (oligarchy or tyranny). Politics
encompasses those activities by which government makes and implements decisions, as
well as those engaged in by people outside government aiming to influence it. Natural
anarchy is absence of government, i.e., a stateless society, whereas political anarchy
denotes absence of a governing person or body of persons within government. The former
describes what Hobbes, Locke, and Rousseau all took to be “the state of nature.” To
demonstrate that the latter is a feature of all polities, and to explore its implications, is the
purpose of this essay.
1 Alfred G. Cuzán, “Do We Ever Really Get Out of Anarchy?,” Journal of
Libertarian Studies, 3 (2), 1979, pp. 151-158. The essay has been widely cited in the
libertarian or anarchist blogosphere. There is a reference to it in an entry on
“anarchismus” in the German-language Wikipedia. And it has made its way into at least
one college syllabus (at LSU).
2 John Locke, Second Treatise on Government (Indianapolis: Hackett Publishing
Company, Inc., 1980. Originally published in 1690), I, 3, p. 8.
3 Thomas Hobbes, Leviathan. Edited, with Introduction and Notes by Edwin
Curley (Indianapolis/Cambridge: Hackett Publishing Company, 1994. Originally
published in 1651), X, 1, p. 50 and XVII, 2, p. 106.

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The Unavoidability of Anarchy
The reasoning that led me to conclude that the escape from anarchy is illusory goes
like this. At best, the establishment of even a duly constituted government like that of the
United States does no more than to abolish natural anarchy. In their relations with one
another, everyone in his private capacity, i.e., engaging in those activities regulated by
the civil and criminal law, including those making governmental decisions, have recourse
to Locke’s “known and indifferent judge,” 4 one endowed with both the authority and the
power to settle disputes and punish offenders according to promulgated laws. In other
words, government acts as a “third party,” regulating what are otherwise thought to be
private matters, from the most intimate, like marriage and family life, to the most public,
such as buying and selling in an open-air market, poised to intervene, ex-ante or ex-post,
whenever people cannot settle their affairs peacefully, by mutual consent.
However, a moment’s thought makes it clear that those who share in the exercise of
political authority are themselves lacking in precisely that feature. Those engaged in the
making, interpretation, adjudication and enforcing of the laws have no one to appeal to
who at once legislates, judges, and compels obedience on them. To the ancient question,
“Quis custodiet ipsos custodes”?, the answer is, “no one but themselves.” Madison knew
this quite well. As he put it in Federalist #51, “In framing a government which is to be
administered by men over men, the great difficulty lies in this: you must first enable the
government to control the governed; and in the next place oblige it to control itself.”5
Note that he did not say, “and in the next place, enable the people to control the
government.” Lacking a third party to control them, those who constitute the government
are self-regulating. In other words, they operate in what I have called a political anarchy.
Locke himself appears to have recognized this. In Chapter 14th of the Second
Treatise, where he discussed the executive power of prerogative, he noted that
traditionally one element of that power was that of “calling parliaments,” that is, the
convocation of the legislature at a “precise time, place, and duration.”6 His response to
“the old question” of “who shall be judge when this power is made a right use of?” he
answered, “between an executive power in being, with such prerogative, and a legislative
that depends upon his will for their convening, there can be no judge on earth.” 7
4 Locke, Second Treatise, IX, 124, p. 66.
5 Isaac Kramnick, Editor, The Federalist Papers (London: Penguin Books, 1987;
first published in 1788), p. 320. Emphasis added.
6 Locke, Second Treatise, XIV, 168, p. 87.
7 Ibid. Unless otherwise note, all emphases are found in the original.

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Furthermore, when discussing where “the supreme power” of the commonwealth
lies (i.e., who exercises sovereignty), Locke suggests that it is shared by three different
actors. First he tells us that “there can be but one supreme power, which is the
legislative, to which all the rest are and must be subordinate, yet the legislative being
only a fiduciary power to act for certain ends, there remains still in the people a supreme
power to remove or alter the legislative, when they find the legislative act contrary to the
trust reposed in them . . . . And thus the community perpetually retains a supreme power
of saving themselves from the attempt and designs of any body . . . . And thus the
community may be said in this respect to be always the supreme power, but not as
considered under any form of government, because this power of the people can never
take place till the government be dissolved.” However, “In some common-wealths,
where the legislative is not always in being, and the executive is vested in a single person,
who has also a share in the legislative; there that single person in a very tolerable sense
may also be called supreme: not that he has in himself all the supreme power, which is
that of law-making; but because he has in him the supreme execution, from whom all
inferior magistrates derive all their subordinate powers, or at least the greatest part of
them . . . .”8 Note that Locke says that in such a regime the executive does not have “all”
the supreme power, implying that he wields a part of it, which means that sovereignty is
divided.
Even within the legislative department itself, which in normal times it is vested with
most of the “supreme power,” there is no third party. Take the American example.
Article I, Section 5 of the Constitution stipulates that “Each House [of the Congress] shall
be the Judge of the Elections, Returns and Qualifications of its own Members,”
“determine the Rules of its Proceedings, punish its members for disorderly Behavior, and,
with the Concurrence of two thirds, expel a Member.” Within each chamber, as well as
between them, there is no central authority to arbitrate and enforce settlements in disputes
over legislation or the distribution of resources between parties or party members whose
power or influence wax and wane in response to shifting majorities. These matters have
to be settled by handshake agreements without recourse to a “third party” to enforce
them. 9
8 Ibid., 149-150, pp. 77-78.
9 Significantly, in The Evolution of Cooperation (New York: Basic Books 1984),
Robert Axelrod uses the Senate of the United States to illustrate how norms of reciprocity
emerge to regulate relations among individuals “without a central authority to force them
to cooperate with each other” (p. 6).

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Taking up the most extreme case, as we saw earlier Locke concluded that only an
“appeal to heaven” can settle an intractable dispute between the executive and the
legislature. Extending his analysis beyond executive-legislative relations, Locke
concluded that
there can be [no earthly judge] between the legislative and the people, should
either the executive, or the legislative, when they have got the power in their
hands, design, or go about to enslave or destroy them. The people have no other
remedy in this, as in all other cases where they have no judge on earth, but to
appeal to heaven . . . . And therefore, though the people cannot be judge, so as to
have, by the constitution of that society, any superior power, to determine and
give effective sentence in the case; yet they have, by a law antecedent and
paramount to all positive laws of men, reserved that ultimate determination to
themselves which belong to all mankind where there lies no appeal on earth, viz.
to judge, whether they have just cause to make their appeal to heaven. . . . 10
In sum, Locke conceives of a polity where sovereignty is shared, which is to say,
divided, between the legislative, the executive, and the community, or the people.
Whenever there is a clash between any two of them, or all three, there is no judge on
earth to resolve the conflict, which, in its most extreme form, degenerates into civil war.
For that very reason Hobbes thought it was more advantageous for sovereignty, i.e.,
the supreme power, to reside in one man rather than an assembly, for “a monarch cannot
disagree with himself out of envy or interest; but an assembly may; and that to such a
height as may produce a civil war.”11 More to the point, dividing power between two
separate or independently chosen representatives of the people, e.g., a monarch and an
assembly, would only worsen the problem, as this would be “to erect two sovereigns, and
every man to have his person represented by two actors that by opposing one another
must needs divide that power which (if men will live in peace) is indivisible, and thereby
reduce the multitude into the condition of war, contrary to the end for which all
sovereignty is instituted.” 12 “For what is it to divide the power of a commonwealth, but
to dissolve it; for powers divided mutually destroy each other.”13
Hobbes takes it further still, rejecting the doctrine that the sovereign is a party to the
covenant instituting the commonwealth, because “if any one (or more) of them [the
subjects] pretend a breach of the covenant made by the sovereign at his institution, and
10 Locke, Second Treatise, 168, pp. 87-88.
11 Hobbes, Leviathan, XIX, 7, p. 121.
12 Ibid, XIX, 3, pp. 119.
13 Ibid, XXIX, 12, pp. 213-214.

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others (or one other) of his subjects (or himself alone) pretend there was no such breach,
there is in this case no judge to decide the controversy; it returns therefore to the sword
again; and every man recovereth the right of protecting himself by his own strength,
contrary to the design they had in the institution. It is therefore vain to grant sovereignty
by way of precedent covenant.”14 By the same token, the sovereign is not subject to the
laws, for “to be subject to laws, is to be subject to the commonwealth, that is to the
sovereign representative, that is to himself; which is not subjection, but freedom from the
laws. Which error, because it setteth the laws above the sovereign, setteth also a judge
above him, and a power to punish him; which is to make a new sovereign; and again for
the same reason a third, to punish the second; and so continually without end, to the
confusion, and dissolution of the commonwealth.”15 In other words, Hobbes concluded
that to subject the sovereign to the laws, or to grant or recognize the right of the people to
judge whether he (or they, in case of an oligarchy or democracy) has performed his
fiduciary duties, as Locke would have it, was to divide sovereignty, which was nothing
but a recipe for anarchy, disorder, and political breakdown.
But not even placing sovereignty in the hands of a single despot abolishes political
anarchy. For, as Locke argued,
absolute monarchy, which by some men is counted the only government in the
world, is indeed inconsistent with civil society, and so can be no form of civil-
government at all: for the end of civil society, being to avoid and remedy those
inconveniences of the state of nature, which necessarily follow from every man’s
being judge in his own case, by setting up a known authority to which every one of
that society may appeal upon any injury received, or controversy that may arise,
and which every one of the society ought to obey; where-ever any persons are, who
have not such an authority to appeal to, for the decision of any difference between
them, there those persons are still in the state of nature; and so is every absolute
prince, in respect of those who are under his dominion..16
Rousseu agrees:
[W]herever despotism . . . reigns, it tolerates no other master. As soon as it speaks,
there is neither probity nor duty to consult, and the blindest obedience is the only
virtue remaining for slaves. . . . And since subjects no longer have any law other
than the master’s will, nor the master any rule other than his passions, the notions of
good and the principles of justice again vanish. Here everything is returned to the
14 Hobbes, Leviathan, XVIII, 4, p. 112.
15 Ibid, XXIX, 9, p. 213.
16 Locke, Second Treatise, 90, p. 48.

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law of the strongest, and consequently to a new state of nature different from the
one with which we began., in that the one was the state of nature in its purity, and
the last one is the fruit of an excess of corruption. Moreover . . . the despot is
master only as long as he is the strongest; and as soon as he can be ousted, he has
no cause to protest against violence. . . . Force alone maintained him; force alone
brings him down.17
In sum, government does not abolish anarchy; it only reduces its domain. In his
private capacity, everyone, including those who staff the government, becomes subject to
the civil and criminal law.18 However, those occupying positions of authority, which in a
democracy includes the electorate, as it is they who decide who the legislators will be,
engage in politics without reference to a third party, i.e., a governing man or body with
the authority and the power to enforce judgments on them all. Regardless of whether
sovereignty is divided, as in a separation of powers framework, or monopolized by a
despot, those who exercise it remain in anarchy among themselves and relative to the
people whom they govern, who in turn remain in anarchy vis-à-vis their governors. This
is illustrated in Figure 1, which is copied from the original essay. There I explained the
illustration thus:
The circle on the left shows a state of true or market or natural anarchy, 19 in
which all members of society relate to each other in strictly bilateral transactions
without third party intervention. The circle on the right shows the situation
prevalent under government. In the higher compartment we see individuals whose
relations among each other are no longer bilateral. All relations are legally
“triangular,” in that all members of society are forced to accept the rule of
government in their transactions. However, in the lower compartment, inside the
“government” itself, relations among the rulers remain in anarchy.20
17 Jean-Jacques Rousseau, Discourse on the Origin of Inequality (Indianapolis,
Indiana: Hackett Publishing Company, Inc., 1992. Originally published in 1755), pp.
68-69.
18 This is not to deny that those in government often seek dispensations from laws
and regulations everyone else is subject to, although this tendency is of course less
pronounced in democracies, where the practice is more likely to come under public
scrutiny and, hence, criticism, than in dictatorships.
19 In the original essay, I used “market anarchy” and “natural anarchy”
interchangeably. Here I stick to the latter term throughout, inserting it inside brackets
into any quote in the original essay that uses the term “market anarchy.”
20 Cuzán, “Anarchy,” p. 154.

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Be it noted, though, that the strict dichotomy illustrated in the figure is not exact.
As I wrote in the original essay, “Of course, the rulers of any government have as their
power base interest groups in and out of government. The leaders of non-governmental
interest groups often hold the key to the political survival of even the most powerful
politicians. . . . Around the edges of government, many private individuals live in a state
of anarchy vis-à-vis government officials. . . .”21
Which Type of Anarchy?
Locke hypothesizes that the state of nature is one of freedom and equality. As he
puts it, “all men are naturally in . . . a state of perfect freedom to order their actions, and
dispose of their possessions and persons, as they think fit, within the bounds of the law of
nature, without asking leave, or depending upon the will of any other man..” Also, it is a
state of equality, wherein all the power and jurisdiction in reciprocal, no one having more
than another . . . .”22
Locke’s state of nature is not lawless. As he conceived it, a man, although free,
does not have a license to do whatever he desires or believes necessary for his own
security, including mastering “by force or wiles” “all men he can,” as Hobbes imagined.23
Rather, all men live under “a law of nature” “which obliges every one: and reason,
21 Ibid., p. 158. This point was one suggested to me by Cal Clark. At the time, we
were both at New Mexico State University. He’s now at Auburn University.
22 Locke, Second Treatise, 4, p. 8.
23 Hobbes, Leviathan, XIII, 4, p. 75.

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which is that law, teaches all mankind, who will but consult it, that being all equal and
independent, no one ought to harm another in his life, health, liberty, or possessions.”
“[U]nless it be done to do justice on an offender,” no one may “take away, or impair, the
life, or what tends to the preservation of the life, the liberty, health, limb, or goods of
another.”24 A man’s “possessions” or “goods” are his property, i.e., land and its products,
acquired through labor, trade, or gifts. He has a right to them and no one may deprive
him of them.
But absent government, how is the “law of nature” to be enforced? How are men
to “be restrained from invading others rights, and from doing hurt to one another”?
Against Hobbes, this was not to be done by vesting all authority in an unaccountable
monarch or assembly: “It cannot be supposed,” he wrote, that (as Hobbes would have it),
when men quit the state of nature “they should intend, had they a power so to do, to give
to any one, or more, an absolute arbitrary power over their persons and estates, and put a
force into the magistrate’s hand to execute his unlimited will arbitrarily upon them. This
were to put themselves into a worse condition than the state of nature . . . .”25
Instead, Locke argued that “the execution of the law of nature is, in that state, put
into every man’s hands, whereby every one has a right to punish the transgressors of that
law to such a degree, as may hinder its violation: for the law of nature would, as all other
laws that concern men in this world, be in vain, if there were no body that in the state of
nature had a power to execute that law, and thereby preserve the innocent and restrain
offenders.”26
Also contra Hobbes, Locke warns that the state of nature is not to be
“confounded” with the state of war. These
are as far distant, as a state of peace, good will, mutual assistance and
preservation, and a state of enmity, malice, violence and mutual destruction are
one from another. Men living together according to reason, without a common
superior on earth, with authority to judge between them, is properly the state of
nature. But force, or a declared design of force, upon the person of another,
where there is no common superior one earth to appeal to for relief, is the state of
war . . . .27
24 Locke, Second Treatise, 6, p. 9.
25 Locke, Second Treatise, 137, p. 72.
26 Ibid, 7, pp. 9-10.
27 Locke, Second Treatise, 19, p. 15.

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Analogously, just as Locke distinguished between the state of nature and the state
of war, and between civil society and tyranny, so here I differentiate between three types
of political anarchy, namely “constitutional anarchy,” and, at opposite extremes, tyranny
(or despotism), on the one hand and civil war, on the other. The fundamental political
problem is how to avoid falling into one or the other of these latter two tragic forms of
anarchy.
By “constitutional anarchy,” I mean a state in which authority is divided among
branches and levels of government, each exercising a share of the sovereign power
according to a constitution or set of fundamental laws, which for simplicity’s sake I will
label the Constitution. In a political anarchy, the Constitution serves the same function as
the law of nature does in Locke’s theory.
In a constitutional anarchy, there is no central authority with the power to enforce
unappealable decisions. The most inclusive part of the state, i.e., the national
government, is superior to all others. But in defense of their share of sovereignty, the
inferior parts of the state are free to appeal to public opinion to elect members of the
national legislature or the executive who directly or indirectly, through appointment to
the judiciary, will effect a change in the words or the interpretation of the Constitution in
their favor.
More to the point, the national government itself is divided into two or three
branches, each exercising a share of sovereignty independently of the others, and each
free to interpret the Constitution its own way. Even in the United States, where in recent
times the executive and legislative branches have accorded extraordinary deference to the
Supreme Court, the President and the Congress still retain, in principle and in practice,
the right to arrive at their own answers. What this amounts to is that the three branches
are engaged in
an ongoing conversation, in which no branch, exactly, has the final word. And
that state of affairs makes it necessary that the president [or the congress], no less
than the judges, has the standing and the responsibility to reach judgments on the
Constitution. More than that, [they have] the obligation to impart those
judgments to the public—in the first place to make clear the justification of [their]
own acts, and in the second, to remind the public that the Constitution is not the
sole custody or responsibility of the judges.28
Moreover, judicial judgments are not self-enforcing. The Congress or the
President may ignore them or reinterpret them at will. President Andrew Jackson may
28 Hadley Arkes, “The Constitution and Mr. Bush,” Claremont Review of Books,
VII, 1, Winter 2006/07, p. 58.

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not have said “John Marshall has made his decision; now let him enforce it!,” but the
quote, apocryphal or not, sums up the situation quite well. President Lincoln, in his first
days in office, “quashed” two judicial opinions which, applying the principle in the Dred
Scott case, had denied a black man a passport and another a patent. In recent times, the
Congress has ignored the ruling in “INS vs. Chadha (1983),” in which “the Supreme
Court struck down the ‘legislative veto’.”29 The Supreme Court can play the same game:
“in the recent Hamdan vs. Rumsfeld case, [it] simply put aside the congressional act that
barred the jurisdiction of the courts in dealing with detainees in this time of war.”30 The
Congress responded in kind: “in a stinging rebuke to the Supreme Court,” it “stripped the
courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant
anywhere in the world.”31
Another illustration is drawn from the State of Massachusetts, whose government,
as is true of all state governments, is, like the government of the United States, divided
into branches. It all began in 2003, when the state’s Supreme Judicial Court (SJC) ruled
in Goodridge v. Dept. of Public Health that under the constitution of the Commonwealth
homosexual couples could not be denied the right to marry. The state began to issue
them marriage licenses the following year.
One of the responses to the change in the law of marriage, led by
Voteonmarriage.org, was to take advantage of a constitutional provision allowing voter
initiatives pursuant to amending the state Constitution. It sought to place the following
amendment on the ballot by 2008: “When recognizing marriages entered after the
adoption of this amendment by the people, the Commonwealth and its political
subdivisions shall define marriage as only the union of one man and one woman.”
Following the procedures provided in the state Constitution, early in 2006 the
Secretary of the Commonwealth determined that a sufficient number of certified
signatures had been collected and transmitted it to the General Court, as the legislature is
formally known. The next step was for the two branches of the legislature, meeting in
joint session as a Constitutional Convention presided by the Senate President, to vote in
two consecutive sessions whether to put the initiative on the ballot. At least one quarter
of the members, or 50 in total, had to vote affirmatively. Governor Mitt Romney urged
the legislature to pass the measure. But even though Sect. 2, Article 48 of the
Constitution of the Commonwealth specifies that a “‘proposal for an amendment to the
constitution introduced by initiative petition shall be voted upon’,”32 and despite it having
29 Ibid, pp. 56, 57.
30 Ibid, p. 58.
31 John Yoo, “Sending a Message,” The Wall Street Journal, October 19, 2006 [on
line].
32 Doyle vs. Secretary of Commerce, 448 Mass. 114 (2006), *117.

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considered other proposals for amendment in the meantime, the General Court recessed
on two separate occasions without taking this one up.
This prompted proponents to appeal to the same Supreme Judicial Court where it all
began, filing suit in December seeking “a declaration, essentially, that art. 48 imposes an
obligatory constitutional duty on the Legislature in joint session to take final action on the
initiative amendment, by a vote of yeas and nays, before the legislative session expires on
January 2, 2007.” On December 27th, the SJC ruled on the case. Although agreeing with
the plaintiffs that the General Court was obligated by the state Constitution to vote on the
measure, it said that “there is no presently articulated judicial remedy for the Legislature's
indifference to, or defiance of, its constitutional duties.” Remanding to case “to the
county court for entry of a judgment dismissing the complaint,” the Court nevertheless
offered this opinion:
Some members of the General Court may have reasoned, in good faith, that a vote
on the merits of the initiative amendment in accordance with the directives of the
pertinent provisions of art. 48 was not required by the constitutional text and that
their duty could be met by procedural (or other) votes short of a vote by the yeas
and nays on the merits. Today's discussion and holding on the meaning of the
duty lays any doubt to rest. The members of the General Court are the people's
elected representatives, and each one of them has taken an oath to uphold the
Constitution of the Commonwealth. Those members who now seek to avoid their
lawful obligations, by a vote to recess without a roll call vote by yeas and nays on
the merits of the initiative amendment (or by other procedural vote of similar
consequence), ultimately will have to answer to the people who elected them.33
These words may have had an effect, for on January 2, 2007, a vote was finally allowed,
the measure receiving 61 yeas. The following June, however, a change of governor and
senate president having taken place, the measure failed by five votes.
This case illustrates several characteristics of a constitutional anarchy. No office
has exclusive or final word. All branches of state government were involved in the
constitutional dispute. One of the branches, in this case the legislature, ignored explicit
constitutional requirements and neither of the others could do anything but urge it to
comply. Also, an organized group of voters sought to mobilize public opinion and so,
indirectly, to persuade the legislature to abide by the Constitution.
The Massachusetts example, along with the previous discussion of federal cases,
suggests two parallels with Locke’s state of nature. Firstly, like the law of nature, a
Constitution imposes certain obligations on the parties involved in a political conflict,
33 Ibid, *114, 121.

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and like the former, the latter, “being but words and breath,”34 is not self-enforcing.
Secondly, so that the Constitution be not “in vain,” everyone has the right to seek its
enforcement by peaceful means, exercising whatever powers it has at its disposal, be it
legislative, executive, judicial or applying pressure on the offending institution or party
by making appeals to public opinion. And since public opinion is malleable, subject to
influence by office holders as well as organized groups outside government, such as
Voteonmarriage.org, some issues, including constitutional ones, are settled but
temporarily, until the next change of mind on the part of the public, manifested in
elections, public demonstrations, advertising, telephone or letter-writing campaigns, and
referenda at the state and local levels.
In contrast to constitutional anarchy, tyranny and civil war have less to do with
law or public opinion than with force, exercised almost exclusively by a despot and his
Janissaries or Mamelukes, in the case of the former, and in the latter by two or more
parties in civil conflict. Locke’s insight into tyranny can hardly be surpassed. Not only
does he maintain that a tyrant remains in the state of nature vis-à-vis his subjects, he
actually wages war on them:
[W]here an appeal to the law, and constituted judges, lies open, but the remedy is
denied by a manifest perverting of justice, and a barefaced wresting of the laws to
protect or indemnify the violence or injuries of some men, or party of men, there
it is hard to imagine any thing but a state of war: for wherever violence is used,
and injury done, though by hands appointed to administer justice, it is still
violence and injury, however coloured with the name, pretences, or forms of law,
the end whereof being to protect and redress the innocent, by an unbiased
application of it, to all who are under it; where-ever that is not bona fide done,
war is made upon the sufferers, who having no appeal on earth to right them, they
are left to the only remedy in such cases, an appeal to heaven.35
Locke’s analysis of tyranny casts light on political issues going well beyond
same-sex marriage that are thrown up by the Doyle case. That the Massachusetts
Legislature tried to avoid doing its constitutional duty simply to vote yea or nay on
whether to put on the ballot a proposed constitutional amendment that had been duly
certified as having met all requirements to be considered, could under certain
circumstances qualify as one of those “perversions of justice” Locke writes about which,
if the issues were large enough, might prompt the injured party to seek a remedy outside
the Constitution. This is the stuff out of which civil wars are made, if the stakes are high
enough. Fortunately, the issue in question was not such as to drive any of the parties to
take up arms. I do not seek to over-dramatize the case, only to capitalize on the example
34 Hobbes, Leviathan, XVIII, 4, p. 112.
35 Locke, Second Treatise, 20, p. 16.

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to show how a constitutional anarchy could break down simply by one of the institutions
sharing sovereignty refusing to meet its obligations under the Constitution just as, in the
state of nature, the peace may be broken by any one person willfully violating his
obligation to respect others’ rights to life, liberty, and property.
Implications: A Culture of Restraint
In The Principles of Politics, J. R. Lucas discusses six means for keeping
“Leviathan under control.” Listed first, and the one that is most pertinent to this essay, is
“the Separation of Powers.” This involves “assigning different responsibilities to
different, individual or corporate, bodies,” traditionally the Legislative, Executive, and
Judiciary. But for this design to work, it must be true that “men are not completely
selfish,” “nor completely unreasonable,” “but can work together for some common goal.”
Then, in a passage that is perfectly consistent with the argument of this essay, he
adds:
The community of purpose between the separate holders of powers must be
enough for them to resolve their differences and co-operate, else the whole system
will break down. . . . [A] state which does not want to give itself over entirely
into the hands of a Leviathan to provide an effective decision procedure for its
otherwise unresolved disputes, depends on there being within it other less
contentious communities, whose members can resolve their disputes by
discussion and compromise, without recourse, or without very much recourse, to a
decision procedure. These communities constitute . . . secular Churches or
“establishments” whose members are, to a lesser extent than other men, subject to
[the] limitations [of selfishness and fallibility]. Every State must have its
Mamelukes, to wield coercive power; and should have its Establishment men—its
moral Mamelukes—to control it.36
Two other limitations are also particularly relevant here: “the Process of Law”
and “the Rule of Law.” Both consist of restrictions, the former mostly on the Executive
and the latter on all three branches. The “Process of Law is an instruction to those in
power not to use coercion except with legal authorization” and “the Rule of Law . . .
restricts what the authorities may authorize.”37 The Legislature is enjoined from issuing
36 J. R. Lucas, The Principles of Politics (Oxford: Clarendon Press, 1966), pp. 79-
80. Perhaps because for Hobbes anarchy meant a war of “every man, against every
man,” he argued against dividing the powers of government: “For what is it to divide the
power of the commonwealth, but to dissolve it; for powers divided mutually destroy each
other” (Leviathan, pp. 100, 240).
37 Ibid., p. 83.

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Bills of Attainder or enacting ex-post facto laws, the Executive is constrained in the
exercise of discretion, and the Judiciary “must apply existing law, not make up new
laws.”38 Both of these safeguards place heavy reliance on the Executive, the most
powerful branch by virtue of its control over the means of coercion, being willing to
subordinate itself to the weakest branch, the Judiciary.
The Judiciary is the home par excellence for the “moral Mamelukes.” It is “an
Areopagite society, in which though judgement may fail and information may be
inadequate, yet men are not sufficiently selfish to prefer their own way to the right way,
in which, therefore, no sanctions are required.” Judges must be of higher than average
“intelligence and disinterestedness.”39 As members of the Areopagite society, though
“finite and fallible,” they are “rational and responsible to a higher degree than is common
among men.” To be rational means that one “must in general prefer that his opinions
should be true rather than that they should be his own, and must feel vulnerable on the
score of the truth of what he says—he must feel that he has lost caste, so to speak, if what
he had maintained turns out to be false, and must be concerned that this should not
happen.”40 In other words, his love of truth must be greater than his love of self. That
this quality is not common goes without saying. Thus, an institution staffed by a
disproportionate number of people who have it constitutes a sort of “aristocracy.”41 Yet,
ironically, “the restrictions stipulated by the Ideal Rule of Law are not imposed on the
Judiciary in practice.”42 The judges exercise wide discretion in court and are exempt
from penalties when they make honest mistakes. They constitute something like a
voluntary sub-community within the government, one which is “not only without
coercive sanctions” but “pretty well without sanctions at all.”43
It appears, then, that Lucas shares the thesis proposed in this essay, that their
political relations with one another, those who wield the levers of power are themselves
in anarchy. The separate branches or other centers of authority or power interact with
each other according to certain guidelines and ideals, such as the Rule of Law. However,
38 Ibid., p. 84.
39 Ibid., p. 91.
40 Ibid., pp. 308-309.
41 Ibid., p. 311. Readers of Plato’s Republic and Aristotle’s Politics will recognize
elements of each in Lucas’ solution.
42 Lucas, Principles of Politics, p. 114.
43 Ibid., p. 94

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the one branch assigned responsibility for enforcing those rules, the Judiciary, is
materially the least powerful. “Characteristically” staffed by relatively anonymous “old
men with weak muscles, who abhor the idea of violence and would never themselves be
tempted to use force, or to beat up a recalcitrant prisoner in the cells,” their claim to
authority lies in their capacity for reasoning about the law. They “can argue and talk, but
never wield a truncheon.”44 For the Rule of Law to serve as a practical limitation on the
other branches, particularly on the Executive, these have to abide by the rulings of those
enjoying neither popular support nor control of the Mamelukes. In other words, in the
final analysis their cooperation is voluntary, as is the judges’ own observance of the Rule
of Law in the exercise of their authority.
In sum, in a constitutional anarchy those who occupy positions of authority,
lacking “a common superior on earth,” must strive to “live together according to reason,”
not force.45 This requires that they all practice restraint, resisting the temptation fully to
exploit temporary advantages to maximize their power or obtain a favored outcome (such
as, in the Doyle case, attempting to block a constitutionally-mandated vote on whether to
submit a measure to referendum. Within the legislature, the majority faction or party or
coalition must not shut out the minority but share power with it, suffering patiently as the
latter tries to block, delay, or amend bills deeply prejudicial to its values or interests.
Neither should it pursue a relentlessly confrontational course vis-à-vis an executive
whenever this is controlled by a different faction or party for any but the most serious
reasons. For its part, the minority needs to yield to the majority most of the time, seeking
concessions at the margins of legislation and not habitually engage in obstructionist
tactics.
The executive ought to exercise the power of prerogative sparingly, and then seek
legislative approval afterwards. Except in emergency situations, and then only
temporarily and in a limited way, it must not seek to shield its decisions from legislative
or judicial oversight. Leaders of the elected branches must agree to appeal to the ballot
box or the judiciary when they find themselves at an impasse, and abide by the count.
As for the courts, their duty is to act judiciously. They must not abuse their
privileged status within the government, but limit themselves to their assigned role in the
administration of justice and the larger constitutional order of things. Members of all the
branches should participate in periodic rituals of national unity, marking the anniversary
of historic dates and other occasions fit for such expressions, e.g., state funerals.
Finally, voters need to resist the siren songs of demagogues and treat fellow
citizens of different persuasions with civility and respect. (This is especially needed in
44 Ibid., p. 85.
45 Locke, Second Treatise, p. 15.

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Latin America—witness the demagogic attacks on legislatures and party politics on the
part of Presidents Hugo Chávez in Venezuela, Evo Morales in Bolivia, and Rafael Correa
in Ecuador.) The generality of public intellectuals, those who seek to inform and mold
public opinion, ought diligently to cultivate the moderate middle, shunning the extremes
and taking to task those within their ranks who willfully and maliciously set about to
polarize public opinion. In other words, the ideals of the Areopagite society are not to be
limited to the judiciary or the academy. Rather, they should extend to the public square,
even if, in the nature of things, their practice will be far less extensive than in the other
two contexts.
Interestingly, in seeking to explain why the medieval republics of Florence and
Venice, both of which divided sovereignty yet fared so very differently, the former
racked by frequent revolutions, purges, and persecutions, the latter a model of stability
and domestic tranquility requiring very little force to maintain, he attributes the
difference to culture more than to institutions:
The qualities that strike the observer when he contemplates the
government of Venice are not the collegiate structure, the elaborate checks and
balances, the rotation of office, and the like, for these are commonplace in
medieval city-republics. Admittedly, Venice’s structure was better designed than
most in three respects: the impressive expert knowledge of its Senate, the
directing and executive role of the Collegio, and the incorporation of an emerging
mechanism, the Council of Ten. But if the active citizenry who manned the
councils and rotated through the ever-more numerous boards and commissions
had been even a fraction as contentious and violence as those in cities like
Florence, the Venetian constitution would hardly have worked any better. It
worked so splendidly because, in the last resort, the aristocracy that worked it—
and for that matter the quasi-aristocracy of cittadine originarii with their names in
their own ‘Silver Book’—were imbued with a sense of responsibility for the
Republic that transcended their rivalries. It is harder to explain this than to
observe its many manifestations. It has been remarked frequently, for instance,
that there are very few prominent names in Venetian history—the political actors
are largely anonymous, or symbolize a few great families, perhaps—but they
conform to a type. The rules of debate, especially in the Senate, which forbid
insult and slander, reprove emotionalism and demagoguery, and seek—
successfully in the event—to keep discussion low-key, practical, and consensual,
are another manifestation of their attitudes. In their great crises this Venetian
aristocracy behaved like Roman senators and magistrates in their golden days
during the Hannibalistic wars. They exhibited a respect for the mos maiorum, the

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laws of the Republic, and then exhibited what one can only call, really, a sense of
state.46
In conclusion, it appears that for a constitutional anarchy to work, it needs to rest
on what Rousseau called “the most important” of all laws, one
not engraved on marble or bronze, but in the hearts of citizens. When other laws
grow old and die away, it revives and replaces them, preserves a people and the
spirit of its institution and imperceptibly substitutes the force of habit for that of
authority. I am speaking of mores, customs, and especially of opinion, a part of
the law unknown to our political theorists but one on which depends the success
of all the others, a part with which the great legislator secretly occupies himself,
though he seems to confine himself to the particular regulations that are merely
the arching of the vault, whereas mores, slower to arise, form in the end its
immovable keystone.47
Of course, specifying that such a culture of restraint is necessary for the proper
working of a constitutional anarchy raises yet another series of questions. Are the
elements of such a culture of restraint amenable to promotion by political means? In
other words, if a constitutional anarchy requires a culture of restraint in order to avoid
civil war, can governing itself make a contribution to the very creation, maintenance, or
enhancement of this condition? Rousseau avers that the legislator who designs a
constitution fit for the characteristics of the people “secretly occupies himself” with that
task, but does not tell us how. My guess is that the answer to this question is “yes,” that
enlightened leadership practicing restraint sets an example for contemporaries and future
generations to emulate. George Washington’s decision not to seek a third presidential
term is a case in point. Lucky or wise is the polity that elevates men of such stamp to the
highest positions in the state.
46 S. E. Finer, The History of Government from the Earliest Times, Volume II, The
Intermediate Ages (Oxford: Oxford University Press, 1997), p. 1018.
47 Jean-Jacques Rousseau, On the Social Contract (Indianapolis: Hackett
Publishing Company, 1987. Originally published in 1762), p. 48.