Smith continues his discussion of Thomas Paine’s theory of rights and government.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In March 1774 the British Parliament responded to the Boston Tea Party by imposing the draconian Coercive Acts on Massachusetts. A year later (22 March 1775) Edmund Burke delivered his brilliant Speech on Conciliation to Parliament. Although British hardliners had expected the Coercive Acts to cow the Americans into abject obedience, nothing like that happened. We “wholly abrogated the ancient government of Massachusetts.” Burke said, “confident that the first feeling, if not the very prospect of anarchy, would instantly enforce a complete submission.”

The experiment was tried. A new, strange, unexpected face of things appeared. Anarchy is found tolerable. A vast province has now subsisted, and subsisted in a considerable degree of health and vigor, for near a twelvemonth, without governor, without public council, without judges, without executive magistrates. How long it will continue in this state, or what may arise out of this unheard‐​of situation, how can the wisest of us conjecture? (My italics.)

Years later, in Part Two of Rights of Man (1792), Thomas Paine made a similar observation about the American colonies during the Revolution.

During the suspension of the old governments in America, both prior to, and at the break out of hostilities, I was struck with the order and decorum with which everything was conducted; and impressed with the idea, that a little more than what society naturally performed, was all the government that was necessary; and that monarchy and aristocracy were frauds and impositions upon mankind. On these principles I published the pamphlet Common Sense.

Although Paine was no anarchist, he insisted as early as 1776 (in Forester’s Letters) that “Government should always be considered as a matter of convenience, not of right.” Paine elaborated on this theme in considerable detail in Part 2 of Rights of Man. This discussion–one of the most brilliant in the history of libertarian thought–deserves to be quoted in full; but since that would occupy my entire essay, I shall restrain myself. In Chapter 1, “Of Society and Civilization,” Paine wrote:

Great part of that order which reigns among mankind is not the effect of government. It has its origin in the principles of society and the natural constitution of man. It existed prior to government, and would exist if the formality of government was abolished. The mutual dependence and reciprocal interest which man has upon man, and all the parts of a civilized community upon each other, create that great chain of connection which holds it together.…

Government is no farther necessary than to supply the few cases to which society and civilization are not conveniently competent; and instances are not wanting to show, that every thing which government can usefully add thereto, has been performed by the common consent of society, without government.

Paine supported his contention with the observation, mentioned above, that Americans functioned quite well without government during the Revolution.

For upwards of two years from the commencement of the American war, and to a longer period in several of the American States, there were no established forms of government. The old governments had been abolished, and the country was too much occupied in defence, to employ its attention in establishing new governments; yet during this interval, order and harmony were preserved as inviolate as in any country in Europe.

Thus, drawing upon a mix of theory and empirical evidence, Paine reached the following conclusion.

So far is it from being true, as has been pretended, that the abolition of any formal government is the dissolution of society, that it acts by a contrary impulse, and brings the latter closer together. All that part of its organization which it had committed to its government, devolves again upon itself, and acts through its medium. When men, as well from natural instinct, as from reciprocal benefits, have habituated themselves to social and civilized life, there is always enough of its principles in practice to carry them through any changes they may find necessary or convenient to make in their government. In short, man is so naturally a creature of society, that it is almost impossible to put him out of it.

Paine’s remarks address a crucial problem that had been raised by Thomas Hobbes and other opponents of revolution. Revolutions will typically have a transition period of “anarchy” between the abolition of an old government and the institution of a new government, and this raises the question: Can a society survive this dalliance with anarchy? Hobbes and other absolutists answered, No; a society will disintegrate into a barbarous state of nature, a war of all against all, during the anarchistic interlude, so it is always better to endure tyranny than to thrust society into chaos through a revolution.

John Locke and his (radical) followers disagreed with this analysis. Tyranny, they argued, is far worse than any anarchistic interlude that may occur during a revolutionary transition–and here we see the cash value of the Lockean state of nature in contrast to the Hobbesian conception. Contrary to Hobbes, Locke depicted the state of nature–a condition of “pure anarchy”–as essentially civilized, so there is no necessary reason to suppose that society will disintegrate into violent chaos during a revolutionary change of governments. Government, in the Lockean view, is necessary to remedy certain “inconveniences” that will arise in a society without government. Thus, although a society with government is generally better than a society without government, a society can function satisfactorily to some degree under anarchy. It would be better to live with no government at all than to endure tyranny.

In maintaining that government is a convenience rather than an absolute necessity, Thomas Paine placed himself squarely in the Lockean tradition, generally speaking. (I emphasize tradition, because Paine gave no indication of having read John Locke; indeed, he once observed that he didn’t recall Locke ever being mentioned during debates about American Independence.) Although his distinction between society and government was not original, Paine emphasized the society/​state model (as I called it in a previous essay) and brought it to the forefront of political theory in a manner that had never been done before. Using the society/​state model, Paine built his theory of government in the traditional Lockean manner (which was precisely the method of reasoning to which Burke objected). Although some of Paine’s fundamental principles were not especially original, he contributed ingenious twists here and there; he was more consistent, and therefore more radical, than many Lockeans who preceded him; and he forged some striking ideas about a republican form of government. I therefore do not agree with the common view that Paine was a popularizer and propagandist rather than a philosopher of merit. He was, in fact, a very able theorist–one of the best in the eighteenth century.

In my last essay I mentioned Paine’s distinction between natural rights and civil rights. Paine based his distinction on two types of natural rights: those rights which a man can exercise without the assistance of others versus those rights that cannot be exercised without the assistance of others. In the former category are the rights of conscience, speech, and so forth. With such rights “the power to execute is as perfect in the individual as the right itself.” In other words, we do not need others to tell us what we should believe or what we should say, so in no sense may we be said to transfer such rights to society in a social contract. But we are in a different situation in regard to the protection and enforcement of our rights against their possible violation by others. In regard to this class of enforcement rights, “though the right is perfect in the individual, the power to execute them is defective. They answer not his purpose.” Hence:

A man, by natural right, has a right to judge in his own cause; and so far as the right of the mind is concerned, he never surrenders it: But what availeth it him to judge, if he has not power to redress? He therefore deposits this right in the common stock of society, and takes the arm of society, of which he is a part, in preference and in addition to his own. Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right.

Paine summarized his position as follows:

From these premises, two or three certain conclusions will follow.

First, That every civil right grows out of a natural right; or, in other words, is a natural right exchanged.

Secondly, That civil power, properly considered as such, is made up of the aggregate of that class of the natural rights of man, which becomes defective in the individual in point of power, and answers not his purpose; but when collected to a focus, becomes competent to the purpose of every one.

Thirdly, That the power produced from the aggregate of natural rights, imperfect in power in the individual, cannot be applied to invade the natural rights which are retained in the individual, and in which the power to execute is as perfect as the right itself.

Thus did Thomas Paine present an alternative view of rights to that defended by Edmund Burke, according to whom individuals surrender all their natural rights upon entering society and must thereafter rely upon the prescriptive rights embedded in the legal traditions and institutions of their country. Paine expressed contempt for Burke’s argument that our rights under government “are often in balances between differences of good; and in compromises sometimes between good and evil, and sometimes between evil and evil”; and that only our rulers are blessed with the wisdom needed to determine the most desirable trade‐​offs. Paine had no doubt what Burke’s argument amounts to in practice.

As the wondering audience whom Mr. Burke supposes himself talking to, may not understand all this learned jargon, I will undertake to be its interpreter. The meaning then, good people, of all this is, That government is governed by no principle whatever; that it can make evil good, or good evil, just as it pleases. In short, that government is arbitrary power.