A Conceptual Disaster Zone Indeed: The Incoherence of the State and the Need for State Action Doctrine(s)

Brookes Brown

The state action doctrine is famously a disaster zone. In this Paper, I will argue that the doctrine’s problems have an unexpected source: there is no such thing as the state. In saying this, I mean nothing spookily metaphysical. Police exist, legislators exist, courts exist, laws exist, and so on. But the concept of the state is itself incoherent. Our core intuitions about what it is to be a state are in conflict.

The appropriate response might seem to be that defended by several recent authors: give up on the doctrine altogether. I however, maintain the opposite: recognizing this incoherence allows us to rescue the doctrine. Upon reflection, our interest in the state reveals itself as an interest in several different clusters of features, each of which prove independently coherent and morally significant. This suggests a new way of understanding the doctrine that can overcome existing criticisms. Rather than attempting to save the state action doctrine, we need to develop a pluralistic set of state action doctrines, clarifying when we have reason to attend to each of these traits.