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 proven that Y is the case. This conclusion is often reached only on the assumption that A does not, or should not, bear a similar burden of proof.

Libertarians, for example, constantly encounter this situation when they argue against state provision of some good or service currently provided by the state. The libertarians might argue, say, that private suppliers can provide personal security in better quality or at lower cost than the government police can. Critics claim that the libertarians are wrong and note that the libertarians have not conclusively proven that private provision is better. Alternatively, critics sometimes claim that if private provision were actually better it would have already prevailed, conveniently ignoring the various ways in which the government has outlawed or burdened private provision, to destroy or cripple private competition with the state.

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, public policy, or any other domain in which an orthodoxy reigns or long-established institutions operate. This bias has a strongly conservative force in the sense that it helps to preserve whatever has gained sway, regardless of how it attained its current domination. Thus, replacement of the geocentric model of planetary motion in the solar system with the heliocentric model required more than a century. Copernicus, Galileo, Newton, and others had to adduce proof that their conception was superior to the Ptolemaic model, which was taken to be correct mainly by virtue of its having been accepted for a very long time.

Likewise, the modern nation-state has been a well established institution for hundreds of years, during which it has tended to expand its size, scope, and power, ultimately achieving its current near-totalitarian form. People living now are accustomed to what the state is and what it does, and they have difficulty in imagining how alternative arrangements might operate at all, much less how they might operate much more successfully for the general public. Hence, ordinary politics takes the form of arguments and policies that move the state back and forth between the 5 yard line and the 4 yard line, not far from the goal line of totalitarianism. The libertarians who propose to move the state back to the 50 yard line, or even to move it all the way to the opposite goal line of statelessness, have difficulty in gaining a hearing for their arguments, much less widespread acceptance of their proposals.

The libertarians’ critics invariably respond that the libertarians are Utopians, that they seek the impossible, notwithstanding that the modern nation-state did not always exist and that the hopes widely placed in the current nation-state—an institutional arrangement born in and sustained by periodic mass murder and continuous extortion and robbery—testify to a genuinely Utopian mindset. People dismiss the panoply of state crimes as aberrations or they adduce ad hoc explanations, rather than face the fact that across the extremely diverse times and places where unspeakably horrible large-scale crimes have been committed, the state has been the common denominator.

Like Winston Churchill, who famously quipped that democracy is the worst form of government except for all of the others, most people now presume—without seriously bearing a burden of proof—that the existing state system is superior to all the others. The libertarian has a right to demand: show me. Give me an organized, rational, fact-based argument, not simply the flippant dismissal that I am a dreamer. Copernicus, Galileo, and Newton were widely viewed as dreamers in their day, too.

Morally speaking, it would seem that those who opt in favor of coercive arrangements ought to bear the burden of proof. If the state is such a superior arrangement, by comparison with genuine, voluntary self-government, why must the state be propped up by all of its police and armed forces? Why must people be constantly threatened with imprisonment and death in order to bring forth the revenues that support the state’s activities? Walmart does not put a gun to my head to gain my patronage.

Of course, the standard mainstream-economics apology for this threat of violence against unwilling purchasers is that government provides a “public good” and hence must cope with a consequent “free rider” incentive to avoid payment. The trouble is that very little, if any, of what modern governments provide satisfies the criteria for categorization as a public good. The payments the government gives grandma in her pension are not a public good, nor are the payments that compensate doctors and hospitals for grandpa’s medical care, nor are the payments that purchase teachers and buildings to educate my neighbor’s kids (while I homeschool my own), and on and on. The “national defense” that serves as the usual example of a government-supplied public good is in fact a ludicrously poor example. Many of us wish the armed forces would cease their current activities in stirring up trouble for Americans around the world, killing innocent people, and destroying property in the service of the military-industrial-congressional complex. I would voluntarily pay to make these hired killers stop what they are doing, come home, and take up honest employment. Some public good!

In truth, the state occupies itself massively in snatching 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 palace guard of police and military forces. This whole vile apparatus has no claim to self-evident superiority to alternative arrangements; it ought to bear the burden of proof for every step it takes; and we ought to recognize that the blackboard proofs proffered by mainstream economists, which compose so-called modern welfare economics, will not feed the baby. This entire body of thought ought to be dismissed as more a corpus of apologetics than a serious attempt to justify the state’s pervasively invasive actions in modern life.

Much more might be said along these lines, of course, but enough has been said, I hope, to make the case 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 deficiencies. Raw force is always the resort of someone who cannot present a persuasive argument in support of his actions. Although the modern state enjoys the support of countless court intellectuals and apologists, it rests firmly on violence in the event that we do not accept the excuses it makes for its crimes. That so many of us fear and loathe the state should in itself be sufficient to indicate that the state, not those of us who long for freedom, should always bear the burden of proof.

Robert Higgs is Senior Fellow in Political Economy at the Independent Institute, author or editor of over fourteen Independent books, and Editor at Large of Independent’s quarterly journal The Independent Review.
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