The State. Anthony de Jasay

arrangements that suit them, need be approached with much mistrust. Conversely, the view (Max Weber’s) that historical outcomes are largely unintended, deserves a préjugé favorable as the more promising approximation to many of the relations linking state and subject.

Title and Contract

      The state is a capitalist state if it does not demand ownership to be justified, and does not interfere for his own good with a person’s contracts.

      The origin of capitalist ownership is that “finders are keepers.”

      This is the acknowledgement that permits the passage from possession to ownership, to good title to property, independently of its particularities, of who the title-holder may be and also of the use he may or may not make of the property. The state which recognized title to property on this ground (though it may do so on other grounds as well) fulfils one of the necessary conditions of being a “capitalist state” in the sense I am using here (a sense which will become very clear as I proceed). The title is not invalidated by scarcity, is contingent neither upon merit nor status, and entails no obligation. The reference to scarcity may need some elucidation. What I mean is that if a man can own an acre, he can own a million acres. If his title is good, it is good regardless of whether, in Locke’s famous words, “enough and as good” is left for others. Ownership is not invalidated by the scarcity of the things owned nor by the non-owners’ desire for it, so that in a capitalist state access to scarce goods is regulated by price and substitution and not by sovereign authority, however constituted.

      Those brought up on the notions of primitive accumulation, division of labour and appropriation of surplus value as the source of continuing accumulation, might balk at this manner of approaching the origin of capital and the essence of the capitalist state. No doubt very little capital has ever been “found” and a lot has been accumulated. Moreover, to both Marxists and perhaps most non-Marxists it might look like putting the cart before the horse to proceed from the “relations of production” (which, as Plamenatz has demonstrated, mean relations of ownership “if they are to have any identity at all”)⁶ to the “means of production,” the things owned. Yet it is not, or at least not generally, a change in the means of production or in the techniques applied to them, that transforms them into capitalist property. Land held by any major French or German noble family down to the Thirty Years’ War was owned by it in the most tenuous sense only. It was a means of production but assuredly not capitalist property in the manner of English or Italian land. Land owned by the English nobility and gentry from the sixteenth century on, can rightly be regarded as capital and has in fact served as the main springboard of English capitalism. Shipping and other mercantile accumulation of capital got off to a flying start in late Tudor and Stuart times due, in great part, to the stakes put up by landowners. Non-capitalist (I am advisedly avoiding the term “feudal”) tenure of land usually originated in service and continued on the strength of a (more or less well founded and realistic) expectation of future service. This was true of the landlord who was supposed to owe service, directly or indirectly, to the sovereign, and of his serfs who owed service to him.⁷ It is characteristic of English social evolution that land tenure became so rapidly unconditional, and that such (light, and unwritten) conditions as remained, concerned local justice and charity where the landlord supplanted rather than served the state.

      The peasant in the North and Central Russian “repartitional” village held land because of who he was and because he had so many adults in his family. His title, such as it was, could be argued to have depended on status, need for and capacity to use, the land. Every so many years, when the cumulative change in the needs of his and other families in the village demanded it, the caucus of influential peasants who ran the obshchinnoe might take away his strips of land and deal him out other, inferior strips. Nobody, however, could sell out or buy into the village; if they could have done, the land would have become capital. The land the American farmer “found” on the frontier, or “proved up” under the 1862 Homestead Act, or got from somebody else who did, was capital. The premises, tools and stock of materials of a master of a craft guild, were not capital. The physically very similar premises, tools and materials of his successor, the small entrepreneur-artisan under Gewerbefreiheit were the very essence of capital.⁸ Unlike his guild predecessor, he could be anybody and could run his shop the way he saw fit. It is not the scale of the undertakings nor the fact of employing the labour of others which makes the first pre-capitalist and the second capitalist. Both generated “surplus value” and enabled their owner to appropriate it. However (except perhaps in Italy north of the Papal States), the guild master’s title to his business was contingent not only upon constraints on output, price and quality, but also upon who he was and how he lived.

      Ownership which does not have to be born into, lived up to, served and atoned for, but just is, is of course no less an ideological phenomenon for that. Its recognition is a distinctive mark of the ideology defining the capitalist state, just as ownership which is contingent upon its conformity to some principle of social utility, justice, equality or efficiency and which is forfeit or at least forcibly adjusted if it does not so conform, satisfies an ideology which is variously called democratic, liberal, socialist or combinations of these words.

      Unsurprisingly, the relation connecting the finders-are-keepers principle of ownership to the capitalist state runs both ways. Like other implicit functions which mostly make up the base of the social sciences, it does not feature an independent and a dependent variable, an unmistakeable cause and an effect. The relation really asserts that it takes the capitalist state to accept and uphold such a quintessentially positivist, non-normative principle of ownership, and that it takes such a severe, contingent-upon-nothing kind of ownership to make the state a capitalist state.

      There is a second necessary condition of capitalism, which is inevitably bound up with the first without being part of the same thing. It is the freedom of contract. When, as in most of medieval Europe, the tenure of property involved onerous obligations and was open to persons of a defined status or other defined characteristics, alienation by free contract could not have been countenanced by the sovereign. Even the marriage contract was subject to state approval and for really prominent families remained so into the eighteenth century. Property came gradually to be governed by contract rather than status, partly because servitudes in kind were commuted into money and partly because, from being the obligations of the owner, they became those of the property—of the marquisat rather than of the marquis—so that the state interest was not harmed by letting it pass into the hands of any upstart tax farmer or venal magistrate. Much the same mutation led from a man’s debts, which he had to discharge or go to prison, to the no-recourse mortgage on property and to the liabilities of an undertaking which permitted its changing hands, even before formal limited liability became widespread.

      Freedom of contract, as a necessary condition for the state to be a capitalist one, can be construed as the freedom of the finder not just to keep what he found, but to transfer all his rights in it to another on whatever terms he chooses, and by extension the freedom of the latter to transfer it to yet another. The capitalist state must let freedom of contract prevail over both ideas of status and propriety, and ideas of just contracts (fair wage, just price).

      If all the world’s goods were divided up into random bundles belonging to nobody, and if everybody were blindfolded and could pick one bundle, and when the blindfolds were taken off all could see their own and anyone else’s bundle, we would have a properly translucent setting for the interaction of free contracts, status and just contracts. If some of the bundles contained beaver hats, and some people liked beaver hats more than other things while for other people it was the other way round, after some scurrying about they could all end up holding what they liked best, subject of course to the constraints of feasibility fixed by the initial bundles. If (as used to be the case before the late seventeenth-century flooding of the European market with Canadian pelts), people below a certain status were then forbidden to wear beaver hats, their price in terms of other things would decline and even so a number of swaps of hats for other things would be prevented from taking place, for some people of the requisite