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STATE OF THE ART:
The Duty to Obey the Law
Published online by Cambridge University Press: 01 December 2004
Extract
Philosophy, despite its typical attitude of detachment and abstraction, has for most of its long history been engaged with the practical and mundane-seeming question of whether there is a duty to obey the law. As Matthew Kramer has recently summarized: “For centuries, political and legal theorists have pondered whether each person is under a general obligation of obedience to the legal norms of the society wherein he or she lives. The obligation at issue in those theorists' discussions is usually taken to be prima-facie, comprehensively applicable, universally borne, and content-independent.” This essay is a commentary on the current state of discussion of this perennial philosophical topic.
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I. INTRODUCTION
Philosophy, despite its typical attitude of detachment and abstraction, has for most of its long history been engaged with the practical and mundane-seeming question of whether there is a duty to obey the law. As Matthew Kramer has recently summarized: “For centuries, political and legal theorists have pondered whether each person is under a general obligation of obedience to the legal norms of the society wherein he or she lives. The obligation at issue in those theorists' discussions is usually taken to be prima-facie, comprehensively applicable, universally borne, and content-independent.”1
Matthew H. Kramer, Moral and Legal Obligation, in BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY 179 (Martin P. Golding and William A. Edmundson, eds., forthcoming).
Each of the elements in Kramer's nice formulation deserves a short explanation. The venerable expression “prima facie duty” is carried over from the work of David Ross,2
W.D. ROSS, THE RIGHT AND THE GOOD (1930).
SHELLY KAGAN, THE LIMITS OF MORALITY 17 (1989).
The duty is “comprehensively applicable” in the sense that it attaches to all of a jurisdiction's mandatory laws, though of course not to those purporting merely to create legal powers or permissions and perhaps not to those carrying nonstigmatizing sanctions, such as modest fines. With respect to Meir Dan-Cohen's distinction4
Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625–677 (1984).
The duty is “universally borne” in the sense that it purports to apply to each and every one of those to whom the jurisdiction's mandatory laws are directed and who would be exposed to the possibility of sanction for noncompliance. Disagreement with the wisdom or morality of a given mandatory law would not, in other words, exclude an actor from the reach of a universally borne duty to obey.
The duty is “content-independent” in the sense that the existence of the duty is not a direct function of the moral merit of the particular law in question. This aspect is sometimes expressed by saying that one has a duty to obey the law qua law, regardless of whether there are independent moral or other reasons to do as the law mandates—unless, perhaps, those reasons are extraordinarily powerful or emanate from a source not in the lawmaker's contemplation. A content-independent duty effectively preempts the subject's individual assessment of the merits of the action required by law and is categorical in the sense that it is not contingent upon any motivating end or goal of the subject.5
Leslie Green, Legal Obligation and Authority, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY 3 (Edward N. Zalta, ed., Spring 2004), available at http://plato.stanford.edu/archives/spr2004/entries/legal-obligation/.
John Finnis, The Authority of Law in the Predicament of Contemporary Social Theory, 1 NOTRE DAME J.L. ETHICS & PUB. POL'Y 115–137 (1984), at 120.
Some further terminological stipulations and subject-matter limitations are in order. The expressions “duty to obey the law” and “obligation to obey the law” are etymologically and perhaps idiomatically distinguishable, but current philosophical usage tends to downplay the significance of any deeper “conceptual” distinction between the two—even among writers who otherwise emphasize the need to work within a voluntaristic framework. Accordingly, the two terms, “duty” and “obligation,” will be used more or less interchangeably here, as equivalent both mutually and with the more cumbersome term, “moral requirement,” which has become current in specialist discussions.
The duty to obey has been contrasted with what might be termed a duty merely to comply with the law—the difference being that the former, unlike the latter, purports to capture the idea that the law presents itself as authoritative.7
Green, supra note 5, at 3.
ROBERT PAUL WOLFF, IN DEFENSE OF ANARCHISM 9 (1971).
Recent usage has tended also to conflate the duty (or obligation) to obey the law with what is referred to as “political obligation,” but in this case the tendency, though understandable, will be resisted. Political obligation is a more compendious term that sweeps in the duty of obedience concerned here together with, for instance, a more overarching and diffuse duty to support and defend the state of which one is a citizen, a duty to give preference to compatriots over foreigners, and to duties assigned to political offices or other positions of advantage within a territory.9
DAVID MILLER, ON NATIONALITY 68, 71 (1995).
See, e.g., Alasdair MacIntyre, Is Patriotism a Virtue? The Lindley Lecture, University of Kansas (1984) in 3 LIBERALISM 246–263 (Richard J. Arneson, ed., 1992); MILLER SUPRA note 9; MARTHA C. NUSSBAUM, FOR LOVE OF COUNTRY? (2002).
Samuel Scheffler, Families, Nations, and Strangers, the Lindley Lecture, Department of Philosophy, University of Kansas (1995) in SAMUEL SCHEFFLER, BOUNDARIES AND ALLEGIANCES (2001); Diane Jeske, Associative Obligations, Voluntarism, and Equality, 77 PAC. PHIL. Q. 289–309 (1996); RICHARD DAGGER, CIVIC VIRTUES chap. 5 (1997); Samuel Scheffler, Relationships and Responsibilities, 26 PHIL. & PUB. AFF. 189–209 (1997); Andrew Mason, Special Obligations to Compatriots, 107 ETHICS 429–437 (1997); Christopher H. Wellman, Relational Facts in Liberal Theory: Is There Magic in the Pronoun ‘My’? 110 ETHICS 537–562 (2000); Diane Jeske, Special Relationships and the Problem of Political Obligations 27 SOC. THEORY & PRAC. 19–40 (2001); David Copp, Social Unity and the Identity of Persons, 10 J. POL. PHIL. 365–391 (2002); Pauline Kleingeld & Eric Brown, Cosmopolitanism, in STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta, ed., Fall 2002), available at http://plato.stanford.edu/archives/fall2002/entries/cosmopolitanism/.
II. LOCATING THE QUESTION IN THE CONTEXT OF POLITICAL THEORY: AUTHORITY AND LEGITIMACY
Efforts intended to support or to challenge the claim that there is a duty to obey the law often go hand in hand with efforts to expose the conceptual connections between political authority and a duty of obedience. The following set of propositions may help to exhibit the relationship between these two lines of inquiry:
- Authority. X is an authority only if X at least implicitly makes claims distinctive of authority.
- Warranty. An authority X is a legitimate authority only if X's distinctively authoritative claims are true.
- Political authority. Political authority is a species of authority whose distinctive claim is that persons subject to it have a general moral duty to obey its commands. The above three propositions are of interest because of their bearing upon the following:
- Inseparability. Political authority is legitimate only if it imposes a general moral duty of obedience on those subject to it. (from 2 and 3)
- Denial of duty. There is no general duty to obey political authority X, even if X is (nearly) just.
- State legitimacy. Legitimate political authorities are possible and even actual.12
William A. Edmundson, Introduction, in THE DUTY TO OBEY THE LAW: SELECTED PHILOSOPHICAL READINGS (William A. Edmundson, ed., 1999b).
The members of the subset {4, 5, 6} cannot be true together: logically one or more has to be rejected as false. The question: Is there a duty to obey the law? seems particularly urgent insofar as a No answer calls into question the very possibility of a legitimate state. If there is no general duty to obey the law (as 5 states) then either legitimacy does not depend upon the existence of such a duty, or there are no legitimate states, actual or possible. The legitimacy of the state is a “high-stakes” issue because it is conceptually linked in turn to the moral permissibility of its administering punishment and monopolizing the use and threat of force.
In recent writings, so many philosophers have aligned themselves with proposition 5—the denial of a duty to obey—that it has been referred to, perhaps with dramatic intention, as stating the currently fashionable view.13
See, e.g., Phillip Soper, Legal Theory and the Claim of Authority, 18 PHIL. & PUB. AFF. 209–237 (1989), at 211; Leslie Green, Who Believes in Political Obligation? in FOR AND AGAINST THE STATE, 1–17 (John T. Sanders and Jan Narveson, eds., 1996), at 28.
Wolff, supra note 8; A. John Simmons, The Anarchist Position: A Reply to Klosko and Senor, 16 PHIL. & PUB. AFF. 269–279 (1987); Simmons, Philosophical Anarchism, in FOR AND AGAINST THE STATE, 19–39 (John T. Sanders and Jan Narveson, eds., 1996a).
Simmons, The Anarchist Position, supra note 14.
Simmons, Philosophical Anarchism, supra note 14, at 29.
Other philosophers have repudiated philosophical anarchism and have tried to defend state legitimacy (i.e., proposition 6) by building a case against the denial of duty (i.e., proposition 5). These efforts to rehabilitate the duty to obey the law have variously drawn upon a principle of fair play,17
Richard Arneson, The Principle of Fairness and Free-Rider Problems, 92 ETHICS 624–626(1982); DAGGER, supra note 11; George Klosko, The Principle of Fairness and Political Obligation, 97 ETHICS 353–362 (1987a); Klosko, Presumptive Benefit, Fairness, and Political Obligation, 16 PHIL. & PUB. AFF. 241–259 (1987b); KLOSKO, THE PRINCIPLE OF FAIRNESS AND POLITICAL OBLIGATION (1992).
JOHN RAWLS, A THEORY OF JUSTICE (1971); Jeremy Waldron, Special Ties and Natural Duties, 22 PHIL. & PUB. AFF. 3–30 (1993); Nancy J. Hirschmann, Freedom, Recognition, and Obligation: A Feminist Approach to Political Theory, 83 AM. POL. SCI. REV. 1227–1244 (1989); Hirschmann, Rethinking Obligation for Feminism, in REVISIONING THE POLITICAL: FEMINIST RECONSTRUCTIONS OF TRADITIONAL CONCEPTS IN WESTERN POLITICAL THEORY (Nancy J. Hirschmann and Christine Di Stefano, eds., 1996).
HARRY BERAN, THE CONSENT THEORY OF POLITICAL OBLIGATION (1987); Mark C. Murphy, Surrender of Judgment and the Consent Theory of Political Authority, 16 LAW & PHIL. 115–143 (1997a).
RONALD DWORKIN, LAW'S EMPIRE (1986); Michael Hardimon, Role Obligations, 91 J. PHIL. 333–363 (1994); Scheffler, Families, Nations, and Strangers, supra note 11; Scheffler, Relationships and Responsibilities, supra note 11; Mason, supra note 11.
Christopher H. Wellman, Liberalism, Samaritanism, and Political Legitimacy, 25 PHIL. & PUB. AFF. 211–237 (1996).
Wellman, supra note 21; George Klosko, Multiple Principles of Political Obligation, POL. THEORY (Forthcoming).
A refutation of the denial of duty would enable one to maintain that there is a strong link between legitimate authority and a duty to obey—as proposition 4 states, and which Durning23
Patrick Durning, Political Legitimacy and the Duty to Obey the Law, 33 CAN. J. PHIL. 373–390 (2003).
WILLIAM A. EDMUNDSON, THREE ANARCHICAL FALLACIES: AN ESSAY ON POLITICAL AUTHORITY (1998).
See, e.g., Green, supra note 13; A. JOHN SIMMONS, JUSTIFICATION AND LEGITIMACY: ESSAYS ON RIGHTS AND OBLIGATIONS (2001a).
M.B.E. Smith, Is There a Prima Facie Obligation to Obey the Law? 82 YALE L.J. 950–976 (1973); Rolf Sartorius, Political Authority and Political Obligation, 67 VA. L. REV. 3–17 (1981); KENT GREENAWALT, CONFLICTS OF LAW AND MORALITY (1987); Edmundson, supra note 24; David Copp, The Idea of a Legitimate State 28 PHIL. & PUB. AFF. 3–45 (1999).
Denying the inseparability thesis seems appealing chiefly because such a move would straight away reconcile the denial of duty with state legitimacy.27
PHILLIP SOPER, THE ETHICS OF DEFERENCE (2002); David A. Lefkowitz, Legitimate Political Authority and the Duty of Those Subject to It: A Critique of Edmundson, 23 LAW & PHIL. 399–435 (2004).
Joseph Raz, Authority and Justification 14 PHIL. & PUB. AFF. 3–29 (1985); DWORKIN, supra note 20, at 191–192; Soper, supra note 13.
EDMUNDSON, supra note 24.
Raz defends a “normal justification” thesis—that the standard way to justify authority is by showing that actors are likelier to act on reasons that apply to them by following the authority's directive than by acting on their own—in a way that appears to be consistent with his implicit denial of the warranty thesis.30
JOSEPH RAZ, THE MORALITY OF FREEDOM (1986), at 53–57.
EDMUNDSON, supra note 24.
Durning, supra note 23; cf. Simmons 2001a, 130.
Mark C. Murphy, Moral Legitimacy and Political Obligation, 99 APA NEWSL. ON PHIL. & L. 77–80 (1999).
EDMUNDSON, supra note 24.
EDMUNDSON, supra note 24; but see Lefkowitz, supra note 27, at 415–427, for an argument to the contrary.
Another issue arises once the authority thesis, which identifies an authority as an entity that makes distinctive claims, is disjoined from the warranty thesis, which conditions the legitimacy of an authority upon the truth of those distinctive claims. I have denied the warranty thesis and proposed instead the “proximity thesis” that the legitimacy of an authority be understood in terms of its sincerity and the approximate truth of its distinctive claims.36
EDMUNDSON, supra note 24, at 44–70; Raz's normal justification thesis can, I believe, be construed as a specification of the proximity thesis, but cf. Lefkowitz, supra note 27, at 406–412.
William A. Edmundson, Social Meaning, Compliance Conditions, and Law's Claim to Authority, 15 CAN. J. L. & JURIS. 51–67 (2002).
Cf. Larry A. Alexander, Pursuing the Good—Indirectly 95 ETHICS 315–332 (1985); David Luban, The Publicity Principle, in THE THEORY OF INSTITUTIONAL DESIGN 154–198 (1996); Lefkowitz, supra note 27, at 427–434.
The elusiveness of any stable position within this narrow-seeming conceptual domain is illustrated by one author's desultory path over the last two decades. At one time, Philip Soper affirmed the political authority thesis and the inseparability thesis and defended the warranty thesis in the case of scientific, though not political, authority.39
Soper, supra note 13.
Soper, supra note 27.
Green, supra note 13.
Thus the tension within the set {4, 5, 6} could be resolved in a number of ways (most simply by denying the most dubious of its members), but for purposes of this essay the focus will be on efforts to refute proposition 5—that is, to rehabilitate the duty to obey the law—rather than on, for example, revisionary work intended to replace the inseparability thesis. Throughout, John Simmons's warning42
SIMMONS, supra note 25.
Cf. Robert Ladenson, Legitimate Authority, 9 AM. PHIL. Q. 335–341 (1972); Ladenson, In Defense of a Hobbesian Conception of Law, 9 PHIL. & PUB. AFF. 134–159 (1980).
Some have complained that duty and obligation have been overemphasized in contemporary moral theory to the reciprocal detriment of the moral virtues,44
See, e.g., G.E.M. Anscombe, Modern Moral Philosophy, 33 PHILOSOPHY 1–19 (1958).
MacIntyre, supra note 10.
ROSELIND HURSTHOUSE, ON VIRTUE ETHICS (1999); but cf. John M. Doris, Persons, Situations and Virtue Ethics, 32 NOUS 504–530 (1998).
III. ADEQUACY CONDITIONS AND ANTITHEORIES
The bulk of recent literature on the duty to obey the law consists of discussions intended either to advance or to undermine one or another account of or justification of the duty. Before turning to that literature, however, it will be useful to survey recent writings that stand at one remove. These writings largely prescind from the merits of, say, a hypothetical-consent theory or of arguments invoking the principle of fair play, and instead seek to make more general points. The first set of these points can be characterized as adequacy conditions. Members of this set do not take a position on particular accounts of the duty to obey but instead state some (partial) criterion of success for such accounts. The second set consists of arguments that purport to show that the nonexistence of the duty to obey can be derived from general reflections upon the nature of law or upon the nature of moral duty. The second set, in other words, consists of arguments that simultaneously set up an adequacy condition and deny that that very condition can be satisfied. The two sets can conveniently be discussed together.
It is now generally agreed that the duty to obey arises, if at all, only if a “threshold condition of justice is met”47
Green, supra note 5, at 5.
See, e.g., Jeffrie G. Murphy, Marxism and Retribution, 2 PHIL. & PUB. AFF. 217–243 (1973).
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977), at 184–196.
The presumption of liberty also favors certain types of defense of the duty to obey the law, a duty that, like all others, is to be seen as a departure from a baseline of natural liberty.50
A. JOHN SIMMONS, ON THE EDGE OF ANARCHY (1993); Robert Paul Wolff, Political Obligation, Fairness, and Independence, 8 RATIO 87–99 (1995); Christopher H. Wellman, 2001a; Simon Cushing, Justification, Legitimacy and Social Embeddedness: Locke and Rawls on Society and the State, 37 J. VALUE INQUIRY 217–231 (2003).
A presumptive case against the duty to obey may similarly be founded not on liberty but on competing duties, such as a duty of autonomy or of individual responsibility.51
Wolff, supra note 8.
The presumption of liberty and the duty of autonomy have been invoked in this fashion to circumscribe the terms in which the debate over the duty to obey the law is to be conducted. So circumscribed, the defense of the duty to obey is saddled with the burden of persuasion, and the denial of the duty to obey enjoys a presumption of correctness. But this way of setting the terms of engagement has been challenged. The challenges have taken two forms. The first form directly counters the liberal presumption of liberty and the Wolffian duty of autonomy. The second proceeds by constructing a counterpresumption of correctness favoring the duty to obey—a form typified by Mark Murphy's appeal52
M. Murphy, 1997b; M. Murphy, Philosophical Anarchisms, Moral and Epistemological (n.d.).
DWORKIN, supra note 20; Hardimon, supra note 20.
The presumption of liberty has been embraced by many liberal philosophers54
See, e.g., Feinberg 1973, at 22; RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004).
JOHN RAWLS, POLITICAL LIBERALISM 291–292 (1993); DWORKIN, supra note 49, at 266–278; and see EDMUNDSON, supra note 24, at 91–93.
Hirschmann, Freedom, Recognition, and Obligation, supra note 18; Hirschmann, Rethinking Obligation for Feminism, supra note 18; cf. JOHN HORTON, POLITICAL OBLIGATION (1992).
Hans Oberdiek, The Role of Sanctions and Coercion in Understanding Law and Legal Systems, 1975 AM. J. JURIS. 71–94 (1975).
William A. Edmundson, Is Law Coercive? 1 LEGAL THEORY 81–111 (1995); and cf. Grant Lamond, Coercion and the Nature of Law, 7 LEGAL THEORY 35–58 (2001); Mitchell Berman, The Normative Functions of Coercion Claims, 8 LEGAL THEORY 45–89 (2002).
JEFFREY H. REIMAN, IN DEFENSE OF POLITICAL PHILOSOPHY (1972).
Green, supra note 5, at 5.
P. Markwick, Law and Content-Independent Reasons, 20 OXFORD J. LEGAL STUD. 579–596 (2000).
HEIDI HURD, MORAL COMBAT (1999); Michael S. Moore, Authority, Law, and Razian Reasons, 62 S. CAL. L. REV. 827–896 (1989); LARRY A. ALEXANDER & EMILY SHERWIN, THE RULE OF RULES: MORALITY, RULES, AND THE DILEMMAS OF LAW (2001).
The venerable debate between natural-law theorists and legal positivists has also had a bearing on the question of the existence of a duty to obey the law. If, following Aquinas, we define law as an ordinance of reason issued by one in authority to promote the common good,63
Mark C. Murphy, Natural Law Theory, in BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY 179 (Martin P. Golding and William A. Edmundson, eds., forthcoming).
SIMMONS, supra note 25, at 72–73.
RAZ, supra note 30; Jules Coleman, On the Relationship between Law and Morality, 2 RATIO JURIS 66–78 (1989).
Present-day natural lawyers avoid the “conceptual argument” in that they acknowledge the existence of valid-but-defective laws, that is, validly promulgated positive law that is contrary to what moral reason in fact requires.66
Finnis, supra note 6; M. Murphy, supra note 63; Green, supra note 5, at 5.
Coleman, supra note 65, at 66.
Kenneth Einar Himma, Positivism, Naturalism, and the Obligation to Obey Law, 36 S. J. PHIL. 145–161 (1998).
Cf. John Gardner, Legal Positivism: 51/2 Myths, 46 AM. J. JURIS. 199–227 (2001), at 206– 207).
The first volley in the “presumptions wars” arguably was fired by apologists for the state at least as early as 1930, with David Ross's appeal to the intuitive obviousness that there is a duty to obey. More recently, the existence of a duty to obey the law is often said to share the presumptive correctness of any such deliverance of common sense and to represent (to use a term popularized by Rawls) a “provisional fixed point” in our moral reasoning. Moreover, many hold as a general matter that tenacious commonsense beliefs are presumptive victors over competing propositions whose only footing is in conceptual inquiry or political theorizing. There has been empirical work to confirm the commonsense status of the doctrine that there is a duty to obey the law,70
TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990).
Green, supra note 13.
The duty to obey is typically called into doubt by an elenchus which is perhaps but an instance of a wider pattern whose general availability undermines the very idea that there are any duties as the term “duty” is commonly understood—that is, as a type of act having a significant and invariably positive moral value. Any putative duty is vulnerable to critical challenges that are designed to extract the concession that in certain circumstances the duty would have to yield. Ross's terminology of “prima facie” duty was coined in order to reconcile the possibility of such concessions with the existence of act-types that are normally obligatory even though they are not obligatory in certain extraordinary circumstances. All may seem well after the “defeasible” nature of our duties is duly noted. But recent decades have witnessed an insurgency of moral particularism, which denies that obligatoriness applies to act-types at all, in pro tanto fashion or otherwise.72
JONATHAN DANCY, MORAL REASONS (1993).
Jonathan Dancy, The Particularist's Progress, In MORAL PARTICULARISM, 130–156 (Brad Hooker and Margaret Olivia Little, eds., 2000).
Cf. Mark Tunick, The Moral Obligation to Obey Law, 33 J. SOC. PHIL. 464–482 (2002).
See, e.g., Frank Jackson, Philip Pettit, & Michael Smith, Ethical Particularism and Patterns, in MORAL PARTICULARISM, 79–99 (Brad Hooker and Margaret Olivia Little, eds., 2000).
IV. POSITIVE ACCOUNTS AND REBUTTALS
The preponderance of the recent literature on the duty to obey the law consists of positive accounts of the duty, responsive criticism, and rejoinders. The positive accounts typically acknowledge the influence of John Simmons's 1979 book, Moral Principles and Political Obligations, which built so impressive a negative case that it is no exaggeration to say that the literature of the intervening quarter-century has largely consisted of efforts to overcome or deflect Simmons's objections.
It may be helpful to contrast “primitive” and “derived” positive accounts. Derived accounts seek to justify the duty by tying it to a wider and perhaps less controversial moral principle or cluster of moral principles. Primitive accounts, on the other hand, seek to defend the duty as morally freestanding: Primitive accounts may but need not locate the duty within a wider constellation of moral principles, with which they may conflict. Instances of primitive accounts include the “conceptual argument” mentioned earlier, which represents moral obligatoriness as essential to the existence of a legal system.76
Simmons 2001a, 72.
M. Murphy, Philosophical Anarchisms, supra note 52.
Any discussion of a derived theory naturally falls into two parts. The first is an elaboration of the more general principle. The second is an evaluation of the prospects of assimilating political obligation to the general principle. Within the category of the derived, it may also be helpful to observe a distinction between “unary” and “mixed” accounts. Unary derived accounts approach the problem of defending the duty as a problem of deriving the duty from a single, more general moral principle whose validity is less dubious than that of the duty to obey the law. Derived mixed accounts do not restrict themselves to a single moral principle. Unary derived accounts can be further divided into three subcategories: natural-duty accounts, volitional accounts, and associative accounts. Briefly, natural duties are predicated upon nothing more than the personhood of the duty-bearer; volitional duties are predicated upon some voluntary act or preference of the duty-bearer; and associative duties are predicated upon the duty-bearer's perhaps unchosen and unwanted association with some proper subset of all persons. Other divisions are possible. Simmons and Wellman distinguish natural-duty accounts, associative accounts, and transactional accounts, each having further subdivisions.78
A. John Simmons, Political Obligation and Authority, in BLACKWELL GUIDE TO SOCIAL AND POLITICAL PHILOSOPHY (Robert L. Simon, ed., 2002); Christopher H. Wellman, Political Obligation and the Particularity Requirement, 10 LEGAL THEORY 97–115 (2004).
Green, supra note 5.
See also RUTH HIGGINS, THE MORAL LIMITS OF LAW: OBEDIENCE, RESPECT, AND LEGITIMACY (2004).
Mixed derived accounts might conceivably draw upon elements from any combination within or across the three subcategories, but in fact advocates of mixed theories have not found it fruitful to exploit all such possibilities. In what immediately follows, I will outline some of the principal unary derived accounts. I will conclude by considering several noteworthy mixed theories.
A. Natural Duty Accounts
Rawls described natural duties in this way:
in contrast with obligations, it is characteristic of natural duties that they apply to us without regard to our voluntary acts. Moreover, they have no necessary connection with institutions or social practices; their content is not, in general, defined by the rules of these arrangements…. A further feature of natural duties is that they hold between people irrespective of their institutional relationships; they obtain between all as equal moral persons. In this sense the natural duties are owed not only to definite individuals, say to those cooperating together in a particular social arrangement, but to persons generally. This feature in particular suggests the propriety of the adjective “natural.”81
RAWLS, supra note 18, at 114–115.
William A. Edmundson, Introduction, in THE DUTY TO OBEY THE LAW: SELECTED PHILOSOPHICAL READINGS (William A. Edmundson, ed., 1999b).
RAWLS, supra note 18, at 114–117, 333–355.
Wellman, supra note 78.
Political obligations are felt to be obligations of obedience and support owed to one particular government or community (our own), above all others. Citizens' obligations are special ties, involving loyalty or commitment to the political community in which they were born or in which they reside. More general duties with possible political content, such as duties to promote justice, equality, or utility, cannot explain (or justify, or be) our political obligations, for such duties do not necessarily tie us either to one particular community or to our own community.85
A. JOHN SIMMONS, MORAL PRINCIPLES AND POLITICAL OBLIGATIONS (1979), at 250.
Jeremy Waldron has offered a general answer to the particularity objection on behalf of natural-duty accounts: he begins by noting a qualification in Rawls's statement of the natural duty and a related objection arising from that qualification.86
Waldron, supra note 18.
SIMMONS, supra note 85, at 151.
Waldron distinguishes between “range-limited” and range-unlimited principles of justice, and, as to the former, between two categories of person—insiders and outsiders. Range-limited principles are principles intended to do justice between a limited set of persons, for example, Hobbes's children or New Zealanders. “Insiders” are simply those within the range of “conduct, claims, and interests” with which the relevant principle—or its administering institution—purports to deal88
Waldron, supra note 18, at 279–280.
Id. at 27.
SIMMONS, supra note 85, at 148.
Waldron, supra note 18, at 27.
Although the particularity worry has dominated much recent discussion, the intuition from which it springs is not beyond question, and the absence after a decade of a compelling rejoinder to Waldron suggests that the worry may be overwrought.92
Cf. Mason, supra note 20, at 436–437; Wellman, supra note 78, at 101–105.
Simmons, supra note 78, at 29.
Id. at 20, 23.
Id. at 29; emphasis in original.
On Waldron's account, the range of a range-limited principle is determined with reference to its “point and justification,”96
Waldron, supra note 18, at 280 of reprint.
Id. at 281 of reprint.
Id. at 287 of reprint; emphasis in original.
The question arises: Why must legitimate political authority divide into mutually exclusive geographical territories? Being simultaneously subject to multiple quasi-sovereign authorities is not only a conceptual possibility but for many an everyday reality. In the United States, for example, there is a constitutional division of sovereignty between the states and the federal government, but additionally there are interstate authorities (e.g., the Port Authority of New York and New Jersey), and within the states there are further divisions between counties, municipalities, special-use districts, special-purpose regional land-use and resource management authorities, and so forth (e.g., tribal reservations that lie within or straddle state boundaries). The potential for conflict and duplication inherent in this variety is of course reduced by rules that tend to impose a manageable hierarchy, but it is a hierarchy that is shifting and contingent and one whose existence should not obscure the fact that a unitary, apical Leviathan is more a creature of theory than of experience—just as the “Westphalian” nation-state itself is a creature of historical contingency.99
F. OST & M. VAN DE KERCHOVE, DE LA PYRAMIDE AU RÉSEAU? POUR UNE THÉORIE DIALECTIQUE DU DROIT (2002); Cushing, supra note 50, at 230 n.41; ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (2004); cf. LESLIE GREEN, THE AUTHORITY OF THE STATE (1988).
Waldron's defense of a geographically exclusive conception of legitimacy extends Kant's story about the moral imperative to originate civil society: “Since no one can afford to wait until all possible conflicts arise so that all can be definitively settled at once, the Kantian approach implies that I should enter quickly into a form of society with those immediately adjacent to me, those with whose interests my resource use is likely to pose the most frequent and dangerous conflicts.”100
Waldron, supra note 18, at 15.
Id. at 15.
Id. at 29.
William A. Edmundson, Introduction: Some Recent Work on Political Obligation, 99 APA NEWSL. ON PHIL. & L. 62–67 (1999c).
Particular natural-duty accounts and their special difficulties include the following:
Utilitarianism and Other Consequentialist Theories
The duty to obey the law is insupportable from an act-consequentialist or direct-consequentialist perspective.104
See George Klosko, Parfit's Moral Arithmetic and the Obligation to Obey the Law, 20 CAN. J. PHIL. 191–214 (1990b); and cf. Christopher MacMahon, Authority and Autonomy, 16 PHIL. & PUB. AFF. 315–328 (1987).
John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3–13 (1955).
See, e.g., Alexander, supra note 38.
Scott Shapiro, Authority, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW (Jules Coleman, Scott Shapiro, and Kenneth Einar Himma, eds., 2002).
Instrumentalist or Necessitarian Theories
The general form of such theories can be presented syllogistically: (P1) whatever is typically a necessary means to a morally compelling end is at least a pro tanto duty; (P2) law-abidingness is typically a necessary means to a morally compelling end; therefore (C) law-abidingness is at least a pro tanto duty. John Finnis defends a natural-law account of this general form.108
Finnis, supra note 6.
John Finnis, Law as Co-ordination, 2 RATIO JURIS 97–104 (1989), at 103.
Mason, supra note 11.
Raz 1986.
Joseph Raz The Obligation to Obey: Revision and Tradition, 1 NOTRE DAME J.L. ETHICS & PUB. POL'Y 1: 139–155 (1984).
Yet another problem for instrumentalist theories is what could be called the “harmless disobedience” difficulty, often put with reference to what have been termed “stop-sign-in-the-desert” examples, which are devised to show that there is nothing even pro tanto wrong with disobeying the law when there is a vanishingly low chance of harm and a palpable benefit to be gained.113
Smith, supra note 26.
Cf. Finnis, supra note 109; TONY HONORé, MAKING LAW BIND (1987), at 56–66.
Contractarian or Hypothetical-Consent Theories
Despite their voluntaristic flavor, accounts of this type are now widely thought to be properly classified as natural-duty theories.115
Simmons, supra note 78; David Schmidtz, Justifying the State, 101 ETHICS 89–102 (1990); Cynthia Stark, Hypothetical Consent and Justification, 97 J. PHIL. 313–334 (2000); Cushing, supra note 50.
Simmons 2001a, 148.
Simmons, supra note 78.
Rawls's contractarian defense of the natural duty to support and comply with just institutions in A Theory of Justice has been so influential as to occupy the field.118
Rawls, supra note 18; cf. Simon Cushing, Rawls and “Duty-Based” Accounts of Political Obligation, 99 APA NEWSL. ON PHIL. & L. 71–77 (1999); Lefkowitz, supra note 27, at 412–415.
See, e.g., Alexander, supra note 38; Moore, supra note 62; Hurd, supra note 62.
Raz, supra note 112; CHRISTOPHER MORRIS, AN ESSAY ON THE MODERN STATE (1998).
Cf. WILLIAM A. EDMUNDSON, AN INTRODUCTION TO RIGHTS (2004), at 114–118.
Fair-Play Accounts
These accounts are inspired by H.L.A. Hart's celebrated duty of fair play, that is, the duty to cooperate that falls upon those who benefit from the cooperative sacrifices of others.122
H.L.A. Hart, Are There Any Natural Rights? 64 PHIL. REV. 175–191 (1955).
when a number of persons engage in a mutually advantageous cooperative venture according to rules, and thus restrict their liberty in ways necessary to yield advantages to all, those who have submitted to these restrictions have a right to a similar acquiescence on the part of those who have benefitted from their submission.123
Rawls, supra note 18, at 112.
John Rawls, Legal Obligation and the Duty of Fair Play, in LAW AND PHILOSOPHY, 3–18 (Sidney Hook, ed., 1964).
Simmons, supra note 85, Simmons, supra note 25.
Simmons, supra note 85.
Id.; Wolff, supra note 50.
A fair-play defense of the duty to obey thus faces a dilemma. A broader, nonvoluntaristic conception of the principle is vulnerable to Robert Nozick's notorious “classical music” counterexample:128
Robert Nozick, ANARCHY, STATE, AND UTOPIA (1974).
Simmons, supra note 85; Wolff, supra note 50.
Klosko, supra note 17; Arneson, supra note 17; Dagger, supra note 11.
But cf. Alan Carter, Presumptive Benefits and Political Obligation, 18 J. APPLIED PHIL. 229–243. (2001).
A. John Simmons, Fair Play and Political Obligation: Twenty Years Later, in JUSTIFICATION AND LEGITIMACY: ESSAYS ON RIGHTS AND OBLIGATIONS (2001a).
George Klosko, The Obligation to Contribute to Discretionary Public Goods, 38 POL. STUD. 196–214 (1990a); Edmundson, supra note 103.
B. Volitional Accounts
A volitional account is one that renders the duty to obey as the moral consequence of some act or course of action undertaken by the party who is bound—or, at the barest minimum, by that party's actually welcoming or valuing something, whether or not it is the product of her own action. In contrast, an associative account renders the duty to obey as deriving in the last analysis from transactions among persons with whom the party bound is associated, and perhaps involuntarily so. Grotius and Hobbes gave accounts that are rather explicitly volitional—invoking analogies to contracting and promising—while Locke's theory of the obligation to obey invokes the idea of a tacit consent manifested by continued residence within a political territory. Volitional accounts seem relatively untroubled by particularity worries, at least insofar as the relevant volitional predicate is assumed to be inherently “range-limited”—as Simmons has insisted they are135
Simmons, supra note 78, at 28.
Fair Play (with Acceptance Condition)
Fair-play accounts, as noted above, hover in the twilight between the volitional and the associative. Rawls and Simmons understand the background moral principle of fairness as requiring a volitional element, namely, willing acceptance of benefits. Klosko rejects the voluntarist insistence upon willing acceptance rather than “mere” receipt and thus advocates an associative understanding of the principle of fairness. H.L.A. Hart, who first tendered the principle of fair play, as he termed it, did so in response to the eponymous question posed in the 1955 article “Are There Any Natural Rights?”—suggesting that the correlative duties would themselves be “natural.” As explained above, the general principle of fairness or fair play is better understood as stating a natural duty, but one whose applications have (here contention begins) either an associative or a volitional predicate. If, as Simmons insists, a volitional predicate must be satisfied—that is, that benefits be willingly accepted rather than merely received—then the prospects of defending a universally borne duty of obedience are drastically diminished. As Simmons points out and Klosko concedes, an important range of benefits conveyed by the state are ones that cannot readily be refused (e.g., public goods such as territorial defense) and so are not in any comfortable sense willingly accepted. Moreover, recipients who would prefer self-provision or market provision of such benefits cannot be said to have willingly accepted benefits that have been, as it were, thrust upon them willy-nilly.
Consent Theories
The Achilles heel of consent and (“actual”) social-contract theories is, as has been notorious since Hume, the fact that the necessary predicate of consent or agreement has not been universally satisfied.136
Simmons, supra note 85.
Wolff, supra note 8.
Margaret Gilbert, Reconsidering the “Actual Contract' Theory of Political Obligation, 109 ETHICS 236–260 (1999); Simmons, supra note 85.
Wellman 2001a.
Gilbert, supra note 138, at 240.
Responses to the “no agreement” objection have been of three types. One is to confess the problem and the consequent nonexistence of a universally borne duty in modern states while calling for reforms intended to secure wider consent.141
Beran, supra note 19; Bernard R. Boxill, On Some Criticisms of Consent Theory, 24 J. SOC. PHIL. 81–102 (1993); Simmons 2001a; cf. historical studies by John Dunn, POLITICAL OBLIGATION IN ITS HISTORICAL CONTEXT (1980); Michael Davis, ACTUAL SOCIAL CONTRACT: A PHILOSOPHER'S HISTORY THROUGH LOCKE (2002).
Gilbert assimilates political obligation to a wider category of “joint commitments” formed when persons “mutually express their readiness to be so committed, in conditions of common knowledge.”142
Margaret Gilbert, Group Membership and Political Obligation, 76 THE MONIST 119–131 (1993), at 123.
Id. at 124.
Gilbert, supra note 138, at 250; see also Michael E. Bratman, Shared Intention and Mutual Obligation, In FACES OF INTENTION (1999).
Gilbert, supra note 142, at 126.
With respect to the problem of political obligation, Gilbert discounts Simmons's objection to actual consent theory: that agreements do not obligate when made under coercion nor when their content is morally flawed; and Simmons's “no agreement” objection—which is damaging to actual consent theory—does not touch plural-subject theory, which does not rest upon agreement. Gilbert argues that the widespread practice of referring to “our country,” “our constitution,” and “our law” is interpretable as a use of the “plural subject sense of ‘we,”’ and that persons who employ such idioms are to be so understood. Such an interpretation would explain the sociological fact that there is a widespread and deep sense of attachment to “our country” and an obligation to obey its laws.
Gilbert is, however, elaborately tentative in her conclusions, and rightly so. Although the phrase, “We, the People,” ringingly begins the U.S. Constitution, and references to “our constitution” are commonplace, it is doubtful that these usages are capable of bearing the full weight Gilbert asks of them. In any case, the colloquial phrase is “duty to obey the law” and not “duty to obey our law,” which to this writer's ear has an ominously cabalistic ring. As Gilbert readily acknowledges, a plural-subject account requires an express joint commitment bespeaking “an intention to obligate oneself.”146
Gilbert, supra note 138, at 254.
Mark Murphy's rehabilitation of consent theory is such an account. Murphy's point of departure is the observation that acting on abstract moral principles often involves what Aquinas called a determinatio or choice among acceptable means, no one of which is morally compelled.147
M. Murphy, supra note 33.
Honoré, supra note 114, at 115–138.
As a matter of empirical fact, it seems plausible to suppose that citizens employ their knowledge of the law in this way much more frequently than they declare their consent to its authority. As an illustration, Murphy points to drunk-driving laws that specify (“determine”) safe blood-alcohol levels. Citizens' surrender of judgment to the state's determinations on a range of such subjects is what constitutes the political authority of the state, and to the extent that we are morally required to accept salient determinations of moral principle, we are not morally at liberty to revoke our acceptance of law by the simple expedient of discontinuing our use of social rules in our practical decision-making.
Murphy thus proposes to close the gap that exists in a natural-law account between a moral principle requiring all to promote the common good and the several provisions of the positive law of the particular jurisdiction in whose domain individuals find themselves. Murphy faults John Finnis's reliance149
JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980), at 231–232; Finnis, supra note 6.
Mark C. Murphy, Natural Law, Consent, and Political Obligation, 18 SOC. PHIL. & POL'Y 70–92 (2001), at 83.
Id. at 90.
Id. at 92.
C. Associative Accounts
An associative duty is one that is neither natural nor volitional. It is not natural insofar as it presupposes more than the common humanity of the obligee and obligor and therefore does not run to all other humans (or moral persons) as such. What an associative duty presupposes is that the obligee be related to some association of persons in a certain way and that the association itself have a certain character. Associative duties are like natural duties in that they do not presuppose any undertaking or particular preference structure on the part of the obligee. Ronald Dworkin and Michael Hardimon have argued that the possibility of reconstructing political obligations along associativist lines undermines any presumption in favor of holding them to a volitional standard. Leslie Green has plausibly countered that the “scope and supremacy” of the state's claimed authority is sufficiently unlike the favorite associativist paradigms that the argumentative burden must remain with apologists for the state.153
Id. at 97.
Particular associativist accounts include the following:
Fair Play
As indicated above, the principle of fair play is a natural duty whose particular applications presuppose at least an associative and perhaps a volitional predicate. If an associative predicate suffices to impose a fair-play duty, then the prospects of a fair-play account of the duty to obey are bright—or at least far brighter than can be the case if a volitional predicate must be satisfied. Unlike unmixed instrumentalist theories, fair-play accounts can respond to the “harmless disobedience” objection by insisting that disobedience is wrongfully unfair even if harmless—and this is a significant advantage.154
Cf. CHAIM GANS, PHILOSOPHICAL ANARCHISM AND POLITICAL DISOBEDIENCE (1992).
Gratitude
The appeal to gratitude is one of the oldest arguments for the duty to obey. It figures prominently in the Crito but is not evident in the Enlightenment tradition, which emphasizes the agent's autonomy rather than the mere receptivity of the passive beneficiary. Its remaining influence seemed extinguished forever by Simmons's critique,155
Simmons, supra note 85, at 157–190.
A.D.M. Walker, Political Obligation and the Argument from Gratitude, 17 PHIL. & PUB. AFF. 191–211 (1988); Walker, Obligations of Gratitude and Political Obligation, 18 PHIL. & PUB. AFF. 359–364 (1989); TERRANCE MCCONNELL, GRATITUDE (1993), at 180–208.
George Klosko, Political Obligation and Gratitude, 18 PHIL. & PUB. AFF. 352–338 (1989); Klosko, Four Arguments against Political Obligation from Gratitude, 5 PUB. AFF. Q. 33–48 (1991); Klosko, Fixed Content of Political Obligation, 46 POL. STUD. 53–67 (1998); Christopher H. Wellman, Gratitude and Political Obligation, 99 APA NEWSL. ON PHIL. & L. 71–77 (1999).
Duties of gratitude are associative in the sense that they may be owed despite there having been no interchange between the obligor and obligee and no voluntary assumption by the obligee. What is minimally required is something done by the obligor. I owe a debt of gratitude to, say, my rich uncle for paying for my private schooling and I owe this debt despite my having had no say in my being privately schooled and despite the fact that the benefits of my private education are ones I would have preferred not to receive (just as I owe a debt of gratitude to the fellow subway rider who hands me the bag of orange peels I have been trying to lose). I may owe a debt of gratitude willy-nilly, but I do not owe it merely in virtue of the humanity I share with my benefactor. My benefactor has done something which, whether I happen to like it or not, has imposed a duty upon me.
Insofar as the duty to obey can be cast as an associative duty, it can be particularized as owed to a limited set of obligors—whether one's nation or conationals—and it is universally borne in the sense that all of those who have relevantly benefited owe the duty, whether or not they have sought or desired the benefit. Therefore the duty to obey, qua a duty of gratitude, seems positioned to avoid both the particularity worry thought to taint natural-duty accounts and the acceptance problem that frustrates volitional theories. But Wellman158
Wellman, supra note 157.
Simmons, supra note 85.
See also McConnell, supra note 156, at 206–208; Klosko, Fixed Content, supra note 157, at 54–57.
Klosko, Political Obligation, supra note 157.
Walker has rightly pointed out that gratitude may indeed be owed to an institution as distinct from an individual agent (as college development offices well know), and that gratitude may be owing even to those who have done a job (well) and been (well) paid for it (“Thank you, Paine Webber!”).162
Walker, Political Obligation, supra note 156; Walker, Obligations of Gratitude, supra note 156.
McConnell, supra note 156, at 203–208.
Edmundson, supra note 24.
What remains unclear is whether obedience is ever required as an expression of gratitude, absent some quasi-contractual relationship between benefactor and beneficiary, or other outré background (“Do as I say or I'll kill your benefactor”). If you, unbidden, squeegee my windshield, I may owe you a duty to say thanks, but I do not have a duty to do whatever you demand, even if what you demand is very important to you. Walker argues that gratitude requires more than expressing appreciation to one's benefactor but also “to avoid harming him or acting contrary to his interests.”165
Walker, Political Obligation, supra note 156, at 202.
Id. at 205.
McConnell, supra note 156, at 206–207; Klosko, Four Arguments, supra note 157.
Liberal Associativism
Associative accounts other than fair-play accounts have been widely discussed in the last two decades. Ronald Dworkin dismissed fair-play accounts in Law's Empire as both vulnerable to Nozickian counterexamples and as failing to explain how fair treatment can impose a reciprocal duty. Dworkin went on to claim that “a state that accepts integrity as a political ideal has a better case for legitimacy than one that does not.”168
Dworkin, supra note 20, at 191–192.
Id. at 206.
Id. at 190–216.
Green, supra note 5, at 5.
Dworkin, supra note 20, at 206.
Associative obligations are obligations that arise from certain but not all relationships we have to one another. They are not volitional because they do not presuppose any undertaking (tacit or otherwise) on part of the obligee nor any prior action (willing or otherwise) nor any prior encounters or interaction between the parties bound (although they may be reinforced by such undertakings or encounters). They are in this sense “natural” (but not in Rawls's sense), and Dworkin at one point refers to them as such.173
Id. at 198.
Id. at 196.
Associative obligations thus do not arise from merely factitious groupings. At a minimum there must exist what he terms a “bare” community: “a community that meets the genetic or geographical or other historical conditions identified by social practice as capable of constituting a fraternal community.”175
Id. at 201.
Id. at 216.
First, [the members] must regard the group's obligations as…holding distinctly within the group, rather than as general duties…owe[d] equally to persons outside…. Second, they must accept that these responsibilities…run directly from each member to each other member, not just to the group as a whole…. Third, [they] must see these responsibilities as flowing from a more general responsibility each has of concern for the well-being of others in the group…. Fourth, [they] must suppose that the group's practices show…an equal concern for all members.177
Id. at 199–200.
These are not psychological conditions. Though a group will rarely meet or long sustain them unless its members by and large actually feel some emotional bond with one another, the conditions do not themselves demand this. The concern they require is an interpretive property of the group's practices of asserting and acknowledging responsibilities—these must be practices that people with the right level of concern would adopt—not a psychological property of some fixed number of the actual members.178
Id. at 201.
This might remain true after we alter the case by peopling the community not with individualists but with good samaritans who as a matter of psychological fact feel no special concern for other members of the community but an unbounded beneficence toward all humanity. Here, the members fail the first and perhaps the third conditions. Nonetheless, if their practices are interpretable as ones that persons satisfying all four conditions would adopt, the group's obligations are associative. Finally, if we imagine a mixed community of individualists and good samaritans, we reach the same result—that the obligations of service are associative—even though the motivating psychology varies drastically from person to person.
Does this way of understanding the conditions make it plausible to think that associative obligations “scale up” from small, closely knit groups to the vast and anonymous plane of modern political life? At first glance, Dworkin's invocation of hypothetical concern parallels the mechanism by which consent theorists have tried to avoid the objection that insufficiently many within the state's territorial grasp have in fact consented to obey its every command. A hypothetical consent theory ties legitimacy to what properly rational and fully informed persons would consent to. But the parallel would be misleading, for Dworkin is not rendering as obligatory those practices that “people with the right level of concern would adopt” but, rather, he renders as associative obligations those obligation-assigning practices that are interpretable as reflecting a concern satisfying the four conditions.
This, I suggest, is the best way to read Dworkin's view. But even if it were granted that associative obligations exist as a distinct genus and that they are capable of being scaled up to the size of modern states, there would remain the further question of whether political obligation can be defended as an obligation grounded in fraternal concern.179
Leslie Green, Associative Obligations and the State, in LAW AND COMMUNITY: THE END OF INDIVIDUALISM? 93–118 (Allan C. Hutchinson and eds., 1989); Wellman 1997; Simmons 1996b.
Green, supra note 179, at 100–102.
Dworkin says we “have no difficulty in describing the main obligations associated with political communities. The central obligation is that of general fidelity to law, the obligation that political philosophy has found so problematic.”181
Dworkin supra note 20, at 208.
Id. at 203.
Id. at 58.
William A. Edmundson, Stephen Guest, Ronald Dworkin, 104 ETHICS 394–396 (1994).
D. Mixed Accounts
The repair of many theorists to mixed views does not necessarily signify a mood of desperation on the part of apologists for the duty to obey; David Ross's account of the duty to obey the law was a mixed one, combining duties of gratitude, fidelity, and beneficence. Mixed views may, however, have greater difficulty capturing the authoritativeness of law. If, for example, one takes the position that law is legitimately authoritative in virtue of its doing a better job of getting its subjects to act on reasons that apply to them,185
Raz, supra note 30, at 53–57.
Raz, supra note 112; Hurd, supra note 62.
Honoré, supra note 114; Finnis, supra note 109.
Green, supra note 5.
Samaritanism
Christopher Wellman's approach is an example of the strengths and weaknesses of a mixed theory.189
Christopher Wellman, Toward a Liberal Theory of Political Obligation, 111 ETHICS 735–759 (2001a).
Id. at 745.
A samaritan account of the moral permissibility of the coercive state lays claim to a number of advantages. Samaritanism is arguably a more general and plausible candidate than a freestanding, underived, natural duty to obey.191
Id.; George Klosko, Samaritanism and Political Obligation: A Response to Christopher Wellman's “Liberal Theory of Political Obligation.” 113 ETHICS 835–840 (2003).
Wellman, supra note 189, at 747.
Granting that there is something to the analogy between government and samaritanism, at least in terms of a moral permission to employ coercion to avoid grave harm, what of the further step to a moral duty to obey? This step looks easy at first, because most of us will readily admit that samaritan duties exist, as well as samaritan permissions, at least under the usual proviso that the duty is not unreasonably burdensome; and the analogy between samaritanism and government seems sturdy enough to support the passage from samaritan duty to provide an easy rescue to a citizen's duty to obey the law. But on second look, complications arise. Disobedience is often inconsequential, and particularly so with respect to the state's mission to rescue others from the perils and inconveniences of a state of nature. Wellman's treatment is to complement samaritanism with a fair-play duty along the line initiated by Hart and discussed above. Disobedience violates the duty of fair play, even when it does not impair the state's rescue of us all from Hobbesian natural warfare: “each person has an obligation to obey the law as her fair share of this samaritan task.”193
Id. at 749.
Wellman's theory is thus a mixed account, and he argues that the combination is an improvement upon the two elements in isolation. Fairness theory alone is objectionable on at least two scores, in his view. Fairness theory is objectionably paternalistic, in that it is applicable only where the duty-bearer has been the net beneficiary of the cooperative scheme to which she is expected to conform. Fairness theory, second, reintroduces the consent-like element of acceptance (as opposed to mere receipt; see discussion above) of benefits and is therefore open to the by-now-familiar objection that too few have validly accepted the state's benefits. By folding fairness into a fundamentally samaritan theory, Wellman claims to have cleansed fairness theory of these two objectionable features. They are effaced because the fundamental theory—samaritanism—is not paternalistic and is not voluntaristic. “Combining fairness with samaritanism…enables us to reap the benefits of fairness without being saddled with either of the difficulties.”194
Id. at 750.
Klosko, supra note 191.
If, as Wellman claims, samaritanism rather than fairness is the driving wheel of his combined view, then (even supposing that the flaws of fairness theory vanish in the process of being combined) one must ask whether the combined view similarly sheds the notorious difficulties of samaritanism or—as it is perhaps more often known—a principle of beneficence. A duty to provide an easy rescue is widely admitted, but with the proviso that the rescue be easy and that the rescue be indeed a rescue from an extreme peril not otherwise avoidable. Far from all of our legal duties can plausibly be cast as counterparts of recognized samaritan duties. If the state were to collapse tomorrow, a plausible case could be made that it was everyone's samaritan duty to restore something like the legal system that had somehow suddenly vanished. But it would be highly implausible to argue that all would in those circumstances have a samaritan duty to restore and observe every jot and tittle of the laws that had previously been in force. In other words, rather few of our present legal duties are independently compelled by samaritan considerations. Wellman confesses that he does not know whether the “power of samaritanism,” applied to the problem of political obligation, “can justify more than a minimal, ‘night-watcher’ state.”196
Id. at 752, 758.
Id. at 759.
Wellman, supra note 78, at 115.
Other Mixed Accounts
George Klosko has proposed a mixed account, similar to Wellman's, which combines associative fairness with a principle of beneficence and an appeal to the common good.199
Klosko, supra note 22.
Lefkowitz, supra note 27.
Miller, supra note 9.
V. CONCLUSION
Where does political obligation lie? Rawls's mature theory classifies political obligation among natural duties. The Lockean tradition, in contrast, insists that political obligation must be understood voluntaristically. Associative obligations have been invoked as a middle way that avoids both the “no agreement” problem besetting volitional accounts and the particularity worry that many have recently thought exposes a major and even incurable defect of any natural-duty theory. But the associativist trial balloons have attracted withering fire, and it is unclear whether they are worth the trouble of reinflating—with the possible exception of the associative strain of fair-play theory. An associative fair-play principle seems best positioned to manage both the “no agreement” problem and the particularity worry, especially if a cosmopolitan treatment of the latter—along the lines Waldron suggests—is workable.
Such seems to be the state of discussion with respect to the duty qua universally borne. It is noteworthy that as the case for a universally borne duty is strengthened, the case for one that is comprehensively applicable and content-independent need not be advanced and in fact may be rendered more problematic. Mixed theories, by their mere eclecticism, may have an easier time reconstructing the comprehensive applicability of the duty. But such eclecticism seems to fudge the gap between law's moral permissibility and its obligatory force. Moreover, eclecticism seems to shirk the need to reckon with the content independence that is distinctive of legal authority.
Authority, conceived in terms of content-independent duty, is (no joke) powerful stuff. As is evident from the literature stemming from Joseph Raz's seminal exposition of the second-order “exclusionary” nature of norms, a defense of authoritative norms of any kind—legal or otherwise—will be subject to abrasive forces of the sort first loosed by William Godwin and lately applied by neo-Godwinian consequentialists, Dancy-style moral particularists, and rule-skeptics. These forces are powerful because the defense of authority is the defense of requiring what is often, in the circumstances of the particular case, contrary to the balance of reasons. Putting reason in its place is no small feat. The position that a just state of modern scope possesses a moral power to impose a content-independent duty to obey that is comprehensively applicable to whatever is law in the jurisdiction may be simply too ambitious to defend. To return to the set of propositions set out at the beginning of Section II, legitimate authority has, I think, to be decoupled from the full-blown, traditionally conceived duty of obedience. That is to say, the proposition that “Political authority is legitimate only if it imposes a general moral duty of obedience on those subject to it” must be given up. Instead, political authority must be reconceived as narrower moral power to impose duties to submit to legal processes. It should also be better appreciated that this moral power is one capable of vesting in trans- and supraterritorial agencies (such as, for example, the International Court of Justice), and is not confined—conceptually or practically—to territorial governments. The motive for this proposal is not merely that of avoiding difficulties that have not dissolved despite two and a half millennia of treatment, but more important, that of making sure that what is legitimated by the theory of political authority corresponds to the still-evolving conditions in which we find ourselves.
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