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Political Legitimacy and the Duty to Obey the Law

Published online by Cambridge University Press:  01 January 2020

Patrick Durning
Patrick Durning*
Affiliation:
St. George's School, Newport, RI, USA02840
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Extract

A growing number of political and legal theorists deny that there is a widespread duty to obey the law. This has lent a sense of urgency to recent disagreements about whether a state's legitimacy depends upon its ‘subjects’’ having a duty to obey the law. On one side of the disagreement, John Simmons, Robert Paul Wolff, David Copp, Hannah Pitkin, Leslie Green, George Klosko, and Joseph Raz hold that a state could only be legitimate if the vast majority of its subjects have a duty to obey the law. On the other side, M.B.E. Smith, Jeffrey Reiman, Kent Greenawalt, Christopher Morris, Rolf Sartorius, Jeremy Waldron, Christopher Wellman, William Edmundson and Allen Buchanan claim that a state could be legitimate even if its subjects lacked a duty to obey the law.

This disagreement contains two separate disputes. One is a linguistic dispute about the meaning of ‘legitimacy,’ or about what it means to call something a ‘legitimate state.’ The other is a Substantive dispute about whether the various aspects of legitimacy are linked together. Since discussing the linguistic dispute will help us examine the Substantive dispute, let us consider it first.

Type
Research Article
Information
Canadian Journal of Philosophy , Volume 33 , Issue 3 , September 2003 , pp. 373 - 389
Copyright
Copyright © The Authors 2003

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References

1 I thank David Estlund, James Drier, Dan Brock and two anonymous reviewers for comments on previous drafts of this paper.

2 Among those who argue against a duty to obey the law are the following: Wolff, Robert Paul In Defense of Anarchism (New York: Harper & Row 1976)Google Scholar; Simmons, A. John Moral Principles and Political Obligations (Princeton: Princeton University Press 1979)Google Scholar; Joseph Raz, The Morality of Freedom (New York: Oxford University Press 1986)Google Scholar; Feinberg, Joel ‘Civil Disobedience in the Modem World,’ in Freedom and Fulfillment: Philosophical Essays (Princeton: Princeton University Press 1992)Google Scholar; Regan, Donald ‘Law's Halo,’ Social Philosophy and Policy (1986)Google Scholar; Smith, M.B.E. ‘Is There a Prima Facie Obligation to Obey the Law?’ Yale Law Journal 82 (1973)CrossRefGoogle Scholar; Green, Leslie The Authority of the State (New York: Oxford University Press 1988)Google Scholar; Lyons, David ‘Need, Necessity and Political Obligation,’ Virginia Law Review (1981)CrossRefGoogle Scholar; and Woozley, A.D. Law and Disobedience (London: Duckworth 1979).Google Scholar

3 Wolff, In Defense of Anarchism; Simmons, Moral Principles and Political Obligations; A. Simmons, John ‘Justification and Legitimacy,’ Ethics 109 (1999) 739-71CrossRefGoogle Scholar; Simmons, A. John ‘Philosophical Anarchism,’ in For and Against the State, Sanders, J.T. and Narveson, J. eds. (Lanham, MD: Rowman and Littlefield 1996)Google Scholar. Copp, David; ‘The Idea of a Legitimate State,’ Philosophy and Public Affairs 28 (1999) 3-45CrossRefGoogle Scholar; Pitkin, Hannah ‘Obligation and Consent, II’ in Readings in Social and Political Philosophy, Stewart, ed. (New York: Oxford University Press 1986)Google Scholar; Green, Leslie The Authority of the State; Raz, Joseph ‘The Obligation to Obey: Revision and Tradition’ in The Duty to Obey the Law, Edmundson, W.A. ed. (Lanham, MD: Rowman & Littlefield 1999)Google Scholar; Klosko, George The Principle of Fairness and Political Obligation (Lanham, MD: Rowman & Littlefield 1992).Google Scholar

4 Smith, ‘Is There a Prima Facie Obligation to Obey the Law?’; Reiman, Jeffrey In Defense of Political Philosophy (New York: Harper & Row 1972)Google Scholar; Greenawalt, Kent ‘Legitimate Authority and the Duty to Obey,’ in The Duty to Obey the Law, Edmundson, W.A. ed. (Lanham, MD: Rowman & Littlefield 1999)Google Scholar; Morris, Christopher An Essay on the Modern State (New York: Cambridge University Press 1998)CrossRefGoogle Scholar; Sartorius, Rolf ‘Political Authority and Political Obligation,’ in The Duty to Obey the Law, Edmundson, W.A. ed. (Lanham, MD: Rowman & Littlefield 1999)Google Scholar; Waldron, Jeremy ‘Theoretical Foundations of Liberalism,’ in his Liberal Rights: Collected Papers 1981-1991 (New York: Cambridge University Press 1993)Google Scholar; Wellman, Christopher H. ‘Liberalism, Samaritanism, and Political Legitimacy,’ Philosophy and Public Affairs 25 (1996) 211-37CrossRefGoogle Scholar; Edmundson, William Three Anarchical Fallacies (New York: Cambridge University Press 1998)CrossRefGoogle Scholar; Buchanan, Allen ‘Political Legitimacy and Democracy,’ Ethics 112 (2002) 689-719.CrossRefGoogle Scholar

5 Hohfeld, Wesley Newcomb Fundamental Legal Conceptions (New Haven: Yale University Press 1919)Google Scholar. Although Hohfeld presents an analysis of the different kinds of legal rights, one can apply his categories roughly to moral rights.

6 Wellman, ‘Liberalism, Samaritanism, and Political Legitimacy,’ 211-12Google Scholar; Smith, ‘Is There a Prima Facie Obligation to the Obey the Law?’ 99-100Google Scholar; Reiman, In Defense of Political Philosophy, 25. Others (such as Allen Buchanan) claim that it must be permissible for the state to try to establish some kind of monopoly on the use of force.

7 I do not mean to rule out the possibility that theorists may be justified in offering new stipulative definitions of ‘legitimacy,’ but we should see them for what they are and evaluate them according to their usefulness, rather than whether they capture the proper definition of legitimacy. I provide some reflections on how to evaluate our terminology at the end of this paper.

8 I thank David Estlund for suggesting this term.

9 Wolff, In Defense of Anarchism; Simmons, Moral Principles and Political Obligations, ‘Philosophical Anarchism,’ On the Edge of Anarchy (Princeton: Princeton University Press 1993), 260-9Google Scholar, and ‘Justification and Legitimacy.’

10 In addition to the two disputes I set forth here, there is one minor skirmish that I will not address. Some theorists assume that State is legitimate if it has a liberty-right to do all the things that states must do in order to be States, but then argue about whether a State could have the liberty to do all of these things if it did not have a right to be obeyed. Specifically, some theorists argue that in addition to issuing commands and backing them with force, all states claim that people have a duty to obey their laws. These theorists then insist that a State may not claim this unless its ‘subjects’ have a duty to obey the law. While I do not find arguments for either premise of this argument convincing, I set this issue aside here, because relatively little rests upon it. If the proponents of the inseparability thesis were right about this point, it would only mean that states whose Citizens lack a duty to obey the laws are not fully legitimate (a position I already accept), because they may not permissibly claim that individuals have a duty to obey their laws. It would not show that states whose Citizens lack a duty to obey the law do anything wrong by issuing commands backed by force. Nor would it rule out the possibility that such states have rights to make commands and enforce them that go beyond what any ordinary Citizen (or any other group in society) has. (See Raz, The Morality of Freedom, 25-7Google Scholar; Green, The Authority of the State, 75; Soper, Philip ‘Legal Theory and the Claim of Authority’ in The Duty to Obey the Law, Edmundson, W.A. ed. (Lanham, MD: Rowman & Littlefield 1999)Google Scholar; and Edmundson, Three Anarchical Fallades.).

11 As George Klosko does in The Principle of Fairness and Political Obligation, 38, 45.

12 In these examples, I do not mean to insist that there is no duty to obey pollution control laws. I only mean to point out that if we thought that there was no duty to obey them, it would still be an open question whether the state could permissibly enforce them. This is enough to show that we do not accept Klosko's proposed principle.

13 In Defense of Anarchism, 95-6

14 The Morality of Freedom, 24

15 It might be best to think of them as arguing that such states are non-legitimate, rather than that they are illegitimate.

16 Among the places Simmons asserts this are Moral Principles and Political Obligations, Chapter 8 and On the Edge of Anarchy, 260-8.

17 ‘Justification and Legitimacy,’ 754

18 In Defense of Anarchism, 83-113

19 In Defense of Anarchism, 110

20 John Simmons suggests that a legitimate state's right to use force might be best understood in this way. He argues that in Locke's theory a legitimate state has ‘the right to act first in preserving its Citizens and promoting their good,’ but that Citizens retain a right to act for themselves when the state f alls (On the Edge of Anarchy, 67-8).

21 ‘Justification and Legitimacy,’ 746

22 ‘Justification and Legitimacy,’ 746

23 ‘Justification and Legitimacy,’ 768-9

24 ‘Justification and Legitimacy,’ 766-8

25 Moral Principles and Political Obligation, Chapter 5: ‘The Duty of Fair Play: Twenty- Five Years Later’ in Justification and Legitimacy

26 On the Edge of Anarchy, 61-2. Numbers in parentheses refer to passages from John Locke's Two Treatises of Government (II = Second Treatise, # = paragraph number).

27 On the Edge of Anarchy, 63

28 ‘Justification and Legitimacy,’ 766-7. Simmons does not whole-heartedly endorse the claim that states are necessary for such tasks. He much more reservedly says that he is ‘not fully convinced’ that these problems can only be solved by states.

29 The Lockean Theory of Rights, 278-306

30 Three Anarchical Fallacies, 48 (italics removed). Edmundson argues for this position on 48-61.

31 ‘Legitimate Authority and the Duty to Obey,’181,185

32 An Essay on the Modem State, 213, 216

33 Christiano, Thomas ‘Justice and Disagreement,’ Ethics 110 (1999) 165-87CrossRefGoogle Scholar

34 Such a duty of non-interference would give individuals a duty not to use force (and, perhaps, not use deceit) to prevent state officials from making, promulgating or enforcing the laws. For instance, someone could have a duty not to attack officers Coming to arrest him and a duty not to impede their progress in attempting to apprehend others, while not having a duty to do what the law requires or even to stop when the police say ‘stop.’ Similarly, one could have a duty not to lie to detectives or judges, without having a duty to tell them anything or to show up for court dates. Finally, one could have a duty not to interfere with attempts to promulgate the laws (for instance, by mis-reporting them in newspapers, tearing down posters announcing the laws or sabotaging web-sites explaining them) without having a duty to obey these laws.

One may worry that there is no real distinction between not interfering with the state and obeying the laws, because all states have laws against interference. The distinction here is that the reason one would have to refrain from interfering is not that the law forbids such interference, but that it is wrong as an ad of interference. What would make it wrong for someone to interfere with the police, would be that it is an act of interference and not that it is an act that violates the law. I thank a reviewer for pressing me to clarify this distinction.

35 Some relevant considerations might be the following: whether a department has procedures that provide for participation from individuals or corporations who will be most directly affected by the regulations and whether a department's process of generating regulations makes it take into consideration important Substantive principles, or whether its procedures effectively block it from considering such principles.

36 Simmons points out that we cannot simply argue that certain kinds of state are beneficial, on balance, and then assume that we have proven that there is a duty to obey them.