The State and Institutional Overlap

The State
Image associated with Thomas Hobbes’ Leviathan

Military Coups

On February 1st, the Tatmadaw arrested the Burmese State Counsellor Aung San Suu Kyi, many other politicians from the National League of Democracy, and declared a state of emergency. The Tatmadaw has formally held power in Myanmar between 1988 and 2011. But it also held power informally as early as 1962. The recent political liberalization was not a true democratization, but it represented significant steps forward for a long-time repressive regime. 

Throughout the 20th Century militaries seized political power during periods of democratic instability. The temptation is not novel. Rome saw generals or members of the praetorian guard declare themselves as emperors as early as Galba. His claim brought about a civil war known as the Year of the Four Emperors where another general, Vespasian, eventually brought about political stability. In the Middle Ages, the Mamluks claimed the sultanate and held it for over two hundred years. More recently, military dictatorships arose throughout Latin America, Asia, and Africa. Most have shifted power to civilian leaders. Many democratized during the third wave, but others simply transitioned to civilian authoritarian leadership. 

A Philosophical Riddle

The idea of the military coup always struck me as a philosophical riddle. It’s not difficult to imagine. Nobody doubts the military has the power to overtake a civilian government. The riddle belongs to an old philosophical quandary about the part and the whole. The state represents the whole government of which the military is only a part. In a coup, the military seizes control of the whole. One way around the problem is the military must claim its independence from the state. In this light, the military becomes an external threat to the state. But this does not make sense. The leaders of coups typically claim to act in the interests of the state. They do not see themselves removed from the state at any moment in time. 

The problem involves overlapping institutions. A coup involves two distinct institutions: the military and the state. The state has a nebulous quality. It involves a number of different institutions such as a legislature, a bureaucracy, a judiciary, and so on. Each of these components is an independent institution. A member of parliament identifies with parliament before they recognize they also belong to a branch of the government. The bureaucracy has a clearer identification as an agent of the state, but even then it may play a background role to their agency or department. Moreover, federalism introduces a new wrinkle as different levels of governance have different responsibilities. Does the state refer to a national government or the different levels of governance as an abstract unit? Does the European Union represent a state?

Problems in Weber’s Definition of the State

What is the state? Max Weber defined the state as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” I hate this definition. It focuses entirely on the coercive nature of the state without any recognition of its other functions. Modern states establish social safety nets for their population. Do old age pensions involve physical force? Libertarians will argue any form of wealth redistribution involves forced taxation. Indeed, social safety nets do depend on taxation, but their argument overlooks two key ideas. First, they do not explain why the state redistributes resources. Why doesn’t it simply keep the money? Taxation is coercive, but a social security check is not. Secondly, government revenues come from many sources including user fees, sales of assets, and debt. The state does much more than use force. 

Moreover, Weber overlooks ways entities exercise the legitimate use of force outside the state. For example, many revolutionary governments established armies before the construction of the state. The Tatmadaw began as an anti-colonial resistance. The People’s Liberation Army formed to oppose the Chinese National Government. The people often recognized them as liberators as they took control over territory. And yet, I do not believe they rose to the level of a state. The people legitimized their use of physical force, but they fell short of the level of a state. Something is missing. 

A Dark Social Contract

Finally, Weber’s description of a monopoly over force is overstated. Most states recognize some right to self-defense. American law sometimes goes beyond self defense in stand your ground laws. While these laws remain controversial, they do not turn the United States into a stateless country or a failed state. Federalism, again, adds a wrinkle because it introduces different legal authorities empowered to use force. Both national and subnational forms of government may claim the authority to use force over the same territory. 

Mancur Olson offered an interesting twist to Weber’s definition in a dark version of a social contract theory. Olson theorized communities face roving bandits in a stateless society. They steal everything from a community before moving to the next. He theorized how a stationary bandit would allow the community to develop enough so they can continue to steal the surplus. The stationary bandit protects against the roving bandits, but continues to steal as much surplus as possible to maintain a sustainable environment. This idea explains kleptocratic rule in the midst of failed states, but fails to explain the origin or purpose of the state. His idea has no basis in the archeological or anthropological record of early societies so it leaves something important missing. Moreover, it does not explain why states establish social safety nets or other nonviolent programs. 

Hobbes and Locke

We need a definition of the state that does not focus solely on violence. The early moderns saw a link between the law and the state. They believed the social contract established the state, but far more importantly it established positive law. Thomas Hobbes did not believe law existed outside of the state. His state of nature is described as “nasty, brutish, and short.” The development of the state made the formation of law a possibility. The state becomes synonymous to God for him. Hobbes did not believe the law arose ex nihilo. It needs a cause to bring it to life. The sovereign becomes its author, but also its protector or enforcer. Most modern views on the state adopt the Hobbesian perspective without realizing it. Rawls, for example, imagines a theory of justice largely dependent on the preexistence of the state to administer his idea of distributive justice. 

John Locke, on the other hand, believed in the preexistence of a natural law. But he also believed the social contract created a new positive law. He writes, “When any number of men have in this way consented to make one community or government, this immediately incorporates them, turns them into a single body politic in which the majority have a right to act on behalf of the rest and to bind them by its decisions.” He never completely resolves a conflict where the majority infringes on the natural rights, but gives strong hints that he understands positive law takes precedence in a political community. More importantly, he recognized a distinction between the law and the state. Hobbes saw the law as the gift of the sovereign. Locke, on the other hand, believes the sovereign or magistrate can violate the law. 

Usurpation and Tyranny

Locke refers explicitly to usurpation and tyranny in a manner Hobbes did not comprehend. Hobbes mentions usurpation in passing and never in context of the usurpation of the sovereign itself. He likely believed the usurper became the sovereign once he assumed its powers. Hobbes did not really care who had sovereign power. He just wanted somebody in charge to create and enforce the law. Locke saw usurpation and tyranny in the context of rights under the law. He explains, “A usurpation, as such, is a change only in who has the government, not in the forms and rules of the government. If the usurper goes further, and extends his power beyond what rightly belonged to the lawful monarchs or governors of the commonwealth whom he has dislodged, he is guilty not merely of usurpation but also of tyranny.”

Tyranny, according to Locke, involved the exercise of powers beyond the law for the magistrate. Usurpation, on the other hand, involved the unlawful seizure of political office. Neither is possible unless we recognize a distinction between the state and the law. The state, according to Locke, has limits under the law. This insight leads to what scholars refer to as the rule of law. It limits the power of political authorities under established laws and formal rules. But its most important element is the notion of equality under the law. Hobbes believed in a similar equality under the law, but was unable to reconcile the unlimited power of the sovereign under the law. His solution was the sovereign existed outside the law in a permanent state of nature. 

The State Defined

Weber’s notion of legitimacy refers back to this link between the state and the law. He just never comes out and says it so he leaves an unsettling ambiguity in his definition that produces theoretical problems. I argued earlier how the law predates the formation of the state. The natural evolution of the law eventually leads to the creation of the state. Indeed, the state begins as the physical manifestation of the law.  The Israelites had their law before they had a king. The law, like their God, had no physical presence. Like many early cultures, the law was divine. The king did not simply embody the physical presence of the law, but the physical manifestation of God. Samuel warns them against the coronation of a king. He tells them God is their king, but they demand a king for themselves. 

I do not mean to paint an ominous depiction of the state. Rather, these stories make clear the distinction between the law and the state in early societies. But it also reminds the reader how the state takes on a life of its own after its creation. The state becomes an institution in its own right. This means the law and the state offer overlapping contexts. The law establishes rules and procedures, while the state takes on the formal organization of the community. The state uses the law as a source of legitimacy, but represents collective, communal action. It does not necessitate force, but represents activity. In many ways, the law symbolizes “being,” while the state never stops “becoming.”

The Metaphysics of Institutions

So, the law and the state demonstrate how institutions overlap. The state and the law always exist even when they contradict. The resolution depends on the order of institutional hegemony in a society. Democracies depend on the rule of law, so the state finds itself constrained by law. Totalitarian societies emphasize the state, so the law becomes a weapon of the state. Nonetheless, in all societies they exist in tandem and independently. The military is another institution. It also exists as a part of the state and as an independent institution. Its members identify as soldiers and as agents of the state. Rarely do these two contexts conflict so they never question which is more important to them. A coup realizes the independent nature of the military. It seizes the power of the state without letting go the idea of their role as agents of the state. 

Institutions overlap one another. Nobody exists in a single context at any one time. They negotiate between multiple social contexts, norms, and identities. Political actors face the same negotiations between political institutions. They unconsciously decide between different norms and notions of identity as individuals and as groups. Institutional hierarchies determine the type of political systems for a community or nation. A written constitution may create a nominal democracy, but those procedures must be followed. The line between an autocracy and democracy is not always found in the letter of the law. 

A Few Sources

Zoltan Barany (2021), “Burma: The Generals Strike Back,” Journal of Democracy

Thomas Hobbes (1651), Leviathan: Or the Matter, Forme and Power of a Commonwealth, Ecclesiasticall and Civil

John Locke (1689), Second Treatise on Civil Government

Mancur Olson (1993), “Dictatorship, Democracy, and Development,” American Political Science Review

Max Weber (1946), From Max Weber: Essays in Sociology

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