Where Should the Burden of Proof Rest?


Perhaps you have been struck, as I have been repeatedly over the years, by the way in which certain disputes are framed. A writer, reporter, or discussant recognizes a difference of views on some matter: A maintains X, and B maintains Y. Yet even though a difference is acknowledged, the question is resolved by concluding that X must be the case because B has not proved that Y is the case. Thus a conclusion is often reached only on the assumption that A should not bear the same burden of proof.

Libertarians constantly encounter this situation when they argue against State provision of a good or service the State currently provides. Libertarians might argue, say, that private suppliers can provide personal security of better quality or at less cost than the government’s police can. Critics assert that the libertarians are wrong, noting that the libertarians have not conclusively proved their case. Critics sometimes also claim that if private provision were actually better it would have already become the norm, conveniently ignoring the various ways in which the government has outlawed or burdened private providers.

Even ostensibly impartial commentators generally lean toward placing the burden of proof on those who challenge the status quo, whether the dispute arises in science, politics, economic policy, or any other domain in which orthodoxy reigns or long-established institutions operate. This bias helps to preserve whatever has gained sway, regardless of how it attained its current domination. Thus the heliocentric model’s displacement of the geocentric model of planetary motion in the solar system required more than a century, as Kepler, Copernicus, Galileo, Newton, and others had to painstakingly demonstrate their conception’s superiority to the long-established system derived from Ptolemy (c. 90–c. 168 A.D.).

Likewise, the modern nation-state has been a well-established institution for centuries, and during this era it has expanded its size, scope, and power immensely. People are now accustomed to the State’s huge dimensions, and they have difficulty imagining how alternative arrangements might operate. Hence ordinary politics now takes the form of arguments and policies that move the State back and forth between the five-yard line and four-yard line, not far from the goal line of totalitarianism. Libertarians who propose to move the State back to, say, the 50-yard line—still far from the goal line of complete freedom—have difficulty gaining a hearing.

Who Are the Utopians?

The libertarians’ critics often assert that libertarians are utopians who seek the impossible, notwithstanding that the modern nation-state did not always exist and that the hopes widely placed in the current State—an institutional arrangement born in and sustained by periodic mass murder and continuous extortion and robbery—attest a more utopian mindset. People dismiss the panoply of State crimes as aberrations or they adduce ad hoc rationales. Most people now presume, without seriously bearing a burden of proof, that the existing State system is superior to any alternative arrangement. Libertarians, however, may justly insist on a rational, even-handed, fact-based argument, not simply the flippant dismissal that they are dreamers.

Morally speaking, it would seem that those who favor coercive arrangements ought to bear the burden of proof. If the State is a manifestly superior arrangement to genuine, voluntary self-government, why must it routinely resort to the use of police and armed forces to prop itself up? Why must it constantly threaten us with imprisonment and death in order to bring forth the revenues that support its activities? Walmart and Amazon do not put a gun to my head to gain my patronage.

Public “Goods”

Of course, the standard mainstream-economics apology for this threat of violence against unwilling purchasers is that the government provides a universally valued “public good” and hence must take stern measures to cope with the “free rider” incentive to avoid payment. The trouble is that very little, if any, of what modern governments provide satisfies the criteria for classification as a public good. The pension checks the government sends to grandma are not a public good, nor are its payments to the doctors and other health service providers who attend to grandpa’s medical care, nor are the outlays for teachers and schoolhouses to educate my neighbor’s kids. The “national defense” that serves as the leading example of a government-supplied public good is in fact a ludicrously poor example. Many of us actually wish the armed forces would cease their current activities in stirring up trouble for Americans around the world, killing innocent people, and destroying property. Far from being a public good, this government “service” is for us not a good at all.

In truth the State occupies itself overwhelmingly in extorting private wealth, transferring much of it to favored supporters, wasting a great deal of it, and retaining the balance to pay its own legions of bullies, do-gooders, and time-servers, as well as its Praetorian Guard of police and military forces. This whole apparatus has no claim to self-evident superiority to alternative arrangements; it ought to bear the burden of proof for every step it takes. Moreover, we should recognize that the blackboard proofs proffered by mainstream economists will not feed the baby. This entire body of thought deserves dismissal as little more than a corpus of apologetics, rather than a serious attempt to justify the State’s pervasive presence in modern life.

Much more might be said along these lines, of course, but perhaps enough has been said to show that placement of the burden of proof is utterly crucial in the resolution of disputes, whether they be in science, public policy, or economic analysis. Moreover, we need to be constantly aware that if an arrangement depends on violence or the threat of violence to keep it afloat, it almost certainly has severe intellectual or moral deficiencies. Raw force is always the resort of those who cannot present a good argument for their actions. Although the modern State enjoys the support of countless court intellectuals and apologists, it rests at bottom on the use of violence in the event that we do not accept the excuses it makes for its crimes. That so many people fear and loathe the State should itself be sufficient to indicate that its kingpins and supporters, not those of us who long for freedom, should always bear the burden of proof.

Reprinted with permission. © Copyright, Foundation for Economic Education.

Robert Higgs is a Senior Fellow in Political Economy at the Independent Institute and Editor at Large of the Institute’s quarterly journal The Independent Review. He received his Ph.D. in economics from Johns Hopkins University, and he has taught at the University of Washington, Lafayette College, Seattle University, the University of Economics, Prague, and George Mason University.

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