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Fall 2007
Volume 07, Number 1

Newsletter on Philosophy and Law

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The Anarchist Within: Natural Duty of Justice Accounts of Political Obligation

Chris Naticchia
California State University–San Bernardino

One of many ways in which discussion of political obligation is indebted to A. John Simmons lies in his identification of the requirements that a successful account of it must meet. Intuitively, what we seek in an account of political obligation is an explanation of why most (if not all) citizens are bound in some special way to obey the political authorities of their own state. This intuition suggests two requirements for such an account. The generality requirement claims that it should be reasonably general in application, explaining why at least most citizens are bound to comply with and obey their political authorities (at least in reasonably just states).[1] The particularized requirement claims that it should explain why these citizens are bound in a special way to obey the political authorities of their own particular state, an allegiance they owe to no other state or government.[2] These requirements are now generally assumed to frame the debate and thus are an indication of Simmons’ lasting influence in framing it.

Yet, clearly, Simmons’ most distinctive contribution to this discussion is his argument that no plausible ground of political obligation, by itself or in combination with others, satisfies both of these requirements (at least as states are currently constituted). Not enough people bind themselves to obey their political authorities through acts of express or tacit consent to meet the generality requirement.[3] The same holds for acts of accepting benefits under the principle of fairness, or for acts of receiving benefits under conditions that would render obedience appropriate under a principle of gratitude.[4] By contrast, a natural duty of justice account would seem to meet the generality requirement, since it would bind all citizens living under just governments to obey their political authorities. However, it would fail to meet the particularity requirement, since it would bind them to just governments everywhere and would not explain the special nature of the bond that exists between them and their own state or government.[5] As a result of the failures of consent, fairness, gratitude, and justice as grounds of political obligation, Simmons embraces philosophical anarchism, which denies that citizens are bound in any special way to comply with and obey the political authorities of their own particular state.

Of course, each one of these moves has been challenged, and each of the rival views has prominent defenders.[6] Here I will be concerned with just one part of this debate: the particularity requirement and its relation to natural duty of justice accounts of political obligation. Simmons’ argument against natural duty of justice accounts has prompted two kinds of response. One response denies that the particularity requirement need be met at all.[7] On this view, as long as a state or government is just, then it follows that it will be justified in enforcing its laws, and its citizens will have a natural duty of justice to obey it and to support it, even if they have no particularized obligations of obedience to it that correlate with its right to be obeyed. Since whether the state is justified in enforcing its laws and whether citizens have a duty of obedience are what fundamentally matter, goes this view, the particularity requirement can simply be dropped. The other response insists that a natural duty of justice account can meet the particularity requirement.[8] If so, and if, as Simmons concedes, natural duty of justice accounts do meet the generality requirement, it would seem to follow that philosophical anarchism is false.

My concern here is with this latter view. Assuming that a natural duty of justice account can meet the particularity requirement satisfactorily, would that show that philosophical anarchism is false? I will argue that this does not follow. In fact, I hope to show that, if a natural duty account can meet the particularity requirement satisfactorily, it will establish not the defeat but the triumph of philosophical anarchism. The reason for this conclusion is that its account of practical reasoning would be exactly the same as that which anarchism itself recommends. Faced with legal commands that may conflict with extralegal, moral requirements, an individual’s practical reasoning under a natural duty of justice approach would be no different from that championed by anarchism. Given the arguable centrality of such reasoning to anarchism, the resulting view should pose no threat to it—indeed, it ought to be welcomed as anarchism in disguise. My argument, then, if sound, would place me in an unusual position, for it would amount to showing not that Simmons has gone too far in denying political obligation, which is the more common criticism of his view, but that he has not gone far enough to expose the central flaw in natural duty accounts.

I. The Anarchist Manifesto

What is the approach to practical reasoning that anarchism recommends? The following passage—the concluding lines from Simmons’s Moral Principles and Political Obligations—I think plausibly represents the core of the view:

For those, like myself, who have always felt uncomfortable with the suggestion that as citizens we are morally bound in a special way to [obey the political authorities of, and support the political institutions of] our own countries, my conclusions in this essay may be reassuring. For those who have believed themselves and their fellows bound by such special obligations, perhaps these remarks can serve as a reminder that citizenship does not free a man from the burdens of moral reasoning. If we have blindly complied in the belief that by doing so we discharged our obligations, we have erred doubly. For, first, most of us have no special obligation of obedience. But second, even if we had such an obligation, the citizen’s job would not be to blithely discharge it in his haste to avoid the responsibility of weighing it against competing moral claims on his action. For surely a nation composed of such “dutiful citizens” would be the cruelest sort of trap for the poor, the oppressed, and the alienated.[9]

Call this (manifesto-like) statement the anarchist manifesto. According to the anarchist manifesto, our belief in the existence of political obligations serves as a kind of false consciousness that interferes with practical reasoning. In deciding whether to obey some particular law, for instance, we are not to think of ourselves as being under some prima facie obligation to obey the law, which may or may not be overridden by competing, extralegal, moral considerations. Rather, since we are under no prima facie obligation to obey the law at all, there are only competing moral considerations, none with any privileged status simply in virtue of being law.[10] As moral agents engaging in practical reasoning, then, our task is to weigh these considerations and to adopt that course of action which accurately follows the weightiest ones.

As these remarks suggest, on the standard view of political obligation, the strength of our obligation to obey the law is prima facie—neither so strong as to be absolute nor so weak as to be merely one moral consideration among others, but intermediate between the two—presumptive, yet defeasible. The strength of this obligation, moreover, is claimed to be independent of its content. Legal commands should therefore be regarded as describing prima facie obligations irrespective of their content.[11]

The anarchist manifesto encourages us to treat this view with a healthy skepticism. On the one hand, it denies that legal commands describe prima facie obligations irrespective of their content. Yet, on the other hand, it does not require us to dismiss legal commands as lacking normative force altogether, or to ignore them entirely in the course of practical reasoning. It simply invites us to regard the strength of any requirements that they may describe as holding in virtue of the normative force of their content and not in virtue of their status as law. The legal prohibition against theft, for instance, does describe a prima facie obligation, but according to anarchism it does so in virtue of the normative force of its content.

Both anarchism and the standard view of political obligation, then, allow extralegal, moral considerations to influence practical deliberation. Where they differ is over the strength and the source of the normative force of any requirements that legal commands may describe—the requirements that are to be weighed alongside extralegal ones. Therefore, if we can show that, under a natural duty of justice, the normative force of legal commands is in virtue of, and commensurate with, the moral merit of their content—in other words, that they do not describe obligations whose strength is primafacie irrespective of their content—then the resulting view will be for all intents and purposes equivalent to anarchism and unlike the standard view. Practical reasoning, in that case, would proceed exactly as the anarchist recommends. There would be legal commands whose normative force holds in virtue of their content and not in virtue of their status as law, and there would be (possibly competing) extralegal, moral considerations. Our responsibility as moral agents would be to weigh them and to adopt that course of action which accurately follows the weightiest ones.

II. Leaving Particularity Behind

Since I am assuming for sake of discussion that the particularity requirement can be met (satisfactorily) by a natural duty of justice approach, I shall not rehearse here any attempts to meet it. Thus, a natural duty of justice, I shall assume for sake of discussion, involves all of the following normative commitments:

It implies a duty to comply with and to support just institutions.
This in turn implies a duty to comply with and to support just political institutions.
This in turn implies a duty to comply with and to support just political institutions that (are claimed to) apply to us.
This in turn implies a (particularized) duty to comply with and to support the political institutions of our own country and no others (on the assumption, for sake of discussion, that no other political institutions apply to us).[12]

The question I want to ask is this: Given these assumptions, would the normative force of legal commands be in virtue of, and commensurate with, the moral merit (the justice) of their content? If the answer is yes, then practical reasoning would seem to be no different than under anarchism.

The most plausible case for this answer comes from considering political institutions that administer (without any discrepancy between what is codified and what is enforced) basic legal protections, rights, and freedoms required by justice: legal prohibitions against theft and murder, rights protecting the security of the person, liberty of conscience, freedom of expression and action, and so on. Intuitively, it seems that if we have a duty to comply with and support institutions that protect such rights—a duty whose strength is prima facie—it is in virtue of the prima facie force of rights that afford these protections, in virtue, that is, of their content.

Matters become more complicated when we move from the realm of basic rights and freedoms to the provision of basic needs and welfare, or benefits valuable for any worthwhile life[13] (taken here to be requirements of justice, too). The complication can be brought out by considering, say, a government whose domestic police are thorough professionals—justly enforcing just rules of conduct that protect basic rights and freedoms—but whose treasury officials, the ones responsible for collecting taxes and using them to administer social services providing basic needs and welfare, are thoroughly corrupt (so corrupt, in fact, that they embezzle virtually every penny they collect). Given our natural duty of justice to comply with and support just political institutions, would we have a duty to comply with and support these institutions?

On the one hand, it may look like this question forces us to reach an all-things-considered judgment about the overall justice or injustice of these political institutions, and to conclude that we do have a duty to comply if and only if this all-things-considered judgment comes out favorable. On the other hand, this should strike us as an oversimplification, for it seems plausible to claim that we are dealing with not one political institution, but two: interior and treasury. Interior operates justly. We have a duty to comply with and to support it that obtains in virtue of the content of its commands. Treasury operates unjustly. We have no duty to comply with commands whose content is corrupted by corrupt officials, or to support it with our taxes.[14]

Of course, these are not the only choices. We could still strive to reach an all-things-considered judgment about the overall justice or injustice of these political institutions, but recognize that such a judgment admits of degrees. We might then be able to explain the intuition that, overall, their legal commands possess less normative force than they would otherwise by appealing to this judgment. But this would seem unacceptable for two reasons. First, it rests, implicitly, on the view that their (collective) normative force is in virtue of, and commensurate with, their content. Second, there is no good reason to saddle the natural duty of justice approach with such a coarse-grained instrument. We need not insist, for instance, that all legal commands suddenly get demoted from describing prima facie duties to stating merely one moral consideration among others, or coin some intermediate category that describes their force. Instead, we can explain the nuances in our intuitive responses much more readily by individuating institutions and indexing our duties of justice to each one.

Part of the difficulty, these remarks suggest, may seem to lie in deciding how to individuate institutions. I understand institutions to consist not only in primary rules and secondary rules that define offices with powers to make primary rules, but also (as suggested earlier) in how these primary rules are administered by those who occupy such offices. This last clause is needed in order to make sense of the intuition that institutions are unjust, no matter how good they look on paper, if their primary rules are corrupted by corrupt enforcement or administration. However, I shall offer no criteria for individuating institutions, since I believe the main difficulty lies elsewhere: in deciding how to handle pockets of injustice that exist within an (already individuated) institution acknowledged to be just (or at least not unjust).

Consider a case where treasury is just because it aims to meet the basic needs and welfare of the population, and to provide it with benefits for any kind of worthwhile life. In addition, it collects taxes in accordance with tax laws whose distributive consequences are just. It is efficient and fair in enforcing these laws. However, one significant branch of treasury, the branch responsible for allocating what it collects to the needy (a Health and Human Services)—though not corrupt—is so wasteful, inefficient, and inept at meeting these needs that they go largely or completely unmet. Given our natural duty of justice to comply with and support just political institutions, would we have a duty to comply with and support this one?

Once again, there is a perfectly natural way to answer this question. According to the natural duty of justice, we have a duty to comply with and to support the treasury insofar as it aims to meet the basic welfare needs of the population and to provide benefits needed for any worthwhile life, collects taxes in accordance with just tax laws, enforces them fairly, and so on. But insofar as its Health and Human Services (HHS) is failing, miserably, to achieve what justice requires in terms of meeting basic needs, we have no duty to comply with and to support it. Our duty is to serve justice. Health and Human Services is not serving it. So we have no duty to continue supporting HHS. Our duty is to make sure that these basic needs are met, and we should find whatever alternative means exist (institutional or otherwise) to meet them. Practically speaking, it may be difficult for us to sever our support of HHS. We may not be able to reduce our tax payments in the right amount or designate their destination (or want to risk legal penalties for noncompliance). Nonetheless, morally speaking, if the reasoning here is sound, we may be entitled to, given the normative priority accorded to meeting basic needs.

The trend, it should be clear by now, is toward disaggregation. There is no need for us to reach an all-things-considered judgment about the justice or injustice of our political institutions overall, or even about individual institutions, and decide on that basis what the natural duty of justice requires and the strength of the requirement. Instead, we may proceed piecemeal. We can evaluate branches of institutions—indeed, it seems, we can evaluate individual rules, laws, and legal commands, for there seems no principled basis for lumping all that is to be evaluated together (more on this in a moment). But then the normative force of what is commanded would stand on its own: its normative force would depend entirely on its individual content. If we have prima facie duties to avoid stealing or harming people in other ways, or (to pay taxes) to help feed, clothe, and house the neediest, for example, the strength of the requirement would be in virtue of the content of these legal commands.

Against this conclusion, I imagine three types of objection. The first claims that the strength of the requirement to support just political institutions does not always depend on the strength of the normative force of the content of their commands. Suppose, for example, that HHS is neither corrupt nor inept, but not the most efficient readily available institution for meeting basic welfare needs either. Rather, it is adequate most of the time, occasionally good. In that case, its adequacy may seem to justify the requirement to support it as being merely one moral consideration among others, a requirement with less strength than a prima facie duty. Yet, nonetheless, our duty to support it is prima facie, or so claims the objection on behalf of the natural duty of justice account. Only very weighty competing requirements will justify using alternative institutions in place of HHS, whereas if the requirement to support it were merely one moral consideration among others, the competing requirements would only need to be (slightly) weightier.

The second type of objection claims that, on a natural duty of justice approach, we would still have prima facie duties to contribute to and support political institutions that make discretionary public goods (highways, industrial and scientific infrastructure, economic regulation, cultural and recreational activities) possible, even though they are not strictly speaking required by justice. But what is optional or discretionary can at most be one moral consideration among others, and then only on condition of its independent value, which is to be weighed alongside competing values. So the (prima facie) strength of the requirement to support just political institutions does not depend on the (one-consideration-among-others) strength of the normative force of the content of their commands.

The third type of objection extends this reasoning to political institutions that solve coordination problems (e.g., rules of the road). Strictly speaking, their commands are not required by justice, and so would seem to be, at most, one consideration among others, were their strength commensurate with their normative force, whereas intuitively our duty to comply with them is prima facie—and so it is, claims the objection, according to the natural duty of justice.

One question that these objections raise is whether the duty of justice really does require us to go beyond what justice requires, and to do what it allows (under certain conditions). It is not clear to me that it does require anything so expansive, and, indeed, I suspect that the objections (or at least the second and third ones) may be conflating beneficence with justice. If we have duties to promote the good of others, these are imperfect duties of beneficence, in which case our requirement to support any specific institutions (or to obey their legal commands) that provide collective, discretionary public goods would fall short of having prima facie force. But if they fall short of having prima facie force, the strength of our requirement to support such institutions would be merely one consideration among others, dependent upon the independent value of the goods they provide. If this is correct, then we have further confirmation for the claim that the strength of any requirement to comply with their commands is in virtue of, and commensurate with, the normative force of their content.

For the most part, this same line of reasoning may be used to address solutions to coordination problems as well. However, some such solutions—like rules of the road—may be construed as being derived from a more general duty, with prima facie force, to avoid harming other people. Again, if this is correct, it confirms the claim that the strength of these requirements depends on the normative force of their content.

The first objection requires slightly different treatment. The commands in question seem to aim at what justice requires, not what it merely allows. However, by hypothesis the institutions are not the most efficient readily available ones at meeting basic welfare needs. They are usually adequate, occasionally good, but not the best. Yet why would its adequacy justify a requirement to support it that possesses less strength than a prima facie duty? Our intuitions about a natural duty of justice, I think, do not require us, in attempting to serve justice, to adopt the most efficient means of fulfilling what that duty requires. Our intuitions about what would fulfill that duty seem to support instead the more modest requirement that we adopt adequate means to that end. If that is right, then the adequacy of HHS in meeting basic welfare needs would seem capable of justifying a requirement to support it that possesses the strength of a prima facie duty rather than being merely one moral consideration among others. We have a (prima facie) duty to support just political institutions, including those that (by hypothesis) apply to us. Health and Human Services (by hypothesis) qualifies as adequately just. Hence, we have a (prima facie) duty to support it, and to comply with its commands. Moreover, the prima facie strength of this requirement is in virtue of the normative force of its command to help the neediest as a requirement of justice—in virtue, that is, of its content (which, by hypothesis, is undermined by neither corruption nor ineptitude). Given its prima facie strength, we may circumvent HHS and use alternative means of fulfilling our duty to the neediest only in the most compelling circumstances—although nothing morally prevents us, of course, from using them both.

Perhaps, though, one might object that these responses overlook the fact that, when commands issue from democratic institutions, the duty of justice applies, since democratic institutions are just. Thus, the second (discretionary public goods) and third (coordination) cases ought to be assimilated to the first, as ones involving the duty of justice, not beneficence. But, more broadly, as long as commands issue from democratic institutions, then even where their content is morally defective, we would have a prima facie duty to comply with them.

If this claim rests on a proceduralist account of democracy, then its plausibility will be no greater than such an account. And such an account is not plausible, since it would imply that, under the natural duty of justice, we would have a prima facie duty to comply with and support democratic institutions that produced, without fail, the most egregiously immoral legal commands, when it would be more natural to claim that we were not bound at all to comply with or support them given their thorough injustice. But there is no good reason to saddle the natural duty of justice with such a commitment.

Instead, we might suppose something like the following. The law forms a seamless web. Therefore, rather than disaggregate, as argued before, and consider legal commands individually for evaluation, we must consider the value of the whole. Pockets of injustice, corruption, ineptitude, and inefficiency no doubt exist throughout that whole. But they are to be evaluated in the context of the whole. If the whole is just overall, and its justice is produced, however imperfectly, by democratic institutions whose instrumental and constitutive role in securing justice is assumed, then we are under prima facie duties to comply with and support whatever individual legal commands they issue, irrespective of their content. This will include not only commands whose content is redundant with what justice requires, but also ones that require support of institutions that provide discretionary public goods, solve coordination problems, or that work inefficiently or much worse, or whose content is morally defective. In short, we must take into account the great value of democracy and not minimize the damage to it that comes through noncompliance or disobedience. Would a position like this refute anarchism?

III. Practical Reasoning Revisited

We have seen, so far, a picture of practical reasoning under the natural duty of justice that looks exactly the same as it should under the anarchist manifesto. When we face legal commands, we ought to consider them individually, and accord them the weight in our practical deliberations that they deserve, which will be in virtue of, and commensurate with, the normative force of their content. They do not achieve any normative status, or gain any additional normative force, simply in virtue of their status as law. It may be that they describe prima facie obligations or duties, or that they describe moral considerations that are merely one among others. They may state duties of greater urgency than other duties, or they may state considerations that ought to be given no weight whatsoever. In each case, the verdict will depend on the normative force of their content. But that is not the end of the matter. Practical deliberation, done responsibly, will consider extralegal factors as well, which may potentially tip the balance against obedience and in favor of noncompliance, circumvention, or resistance, depending on the circumstance.

All of this the anarchist can accept without reservation, for it dispenses with the false consciousness that attaches to regarding legal commands as possessing normative force irrespective of their content. The one exception to this is the position that we described at the end of the last section, where the value of democracy is factored in.

But now the lines between the two views are continuing to blur. Is it really the case, we might ask, that factoring in the value of democracy converts disaggregation into aggregation, so that where we might have previously considered the normative force of legal commands to depend individually on their content, they are now all prima facie in strength irrespective of their content, provided that, as a whole, they are reasonably just? Would it not be more straightforward, we might wonder, to regard the appeal to this value as expressing a caution not to take violating democratic rules too lightly, not to minimize the damage to democracy that accompanies noncompliance? If so, does this not seem like precisely the kind of extralegal consideration that an anarchist would claim we must weigh in our practical deliberation? After all, noncompliance can be based on the mistaken belief that one’s judgment of means to an end required by justice is better than that selected by the law. Noncompliance can also be based on ignorance of consequences, or on the mistaken belief that others will not notice or follow suit. It can be based on selfishness rather than a proper regard for the independent value of collective goods. If widely mimicked, it has the potential to undermine fragile democratic institutions.

Surely these are all reasons for caution, and just as surely an anarchist can and should take them into account when engaged in practical reasoning—neither minimizing nor exaggerating the dangers.[15]

Endnotes:

1. A. John Simmons. Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979), 38.

2. Ibid., p. 31.

3. Ibid., chs. 3, 4.

4. Ibid., chs. 5, 7.

5. Ibid., ch. 6.

6. See Harry Beran, The Consent Theory of Political Obligation (London: Croom Helm, 1987); George Klosko, The Principle of Fairness and Political Obligation (Lanham, MD: Rowman & Littlefield, 1992); A.D.M. Walker, “Political Obligation and the Argument from Gratitude,” Philosophy & Public Affairs 17 (1988): 191-211; and Jeremy Waldron, “Special Ties and Natural Duties,” in The Duty to Obey the Law: Selected Philosophical Readings, edited by William A. Edmundson (Rowman & Littlefield, 1999), ch. 12.

7. See Allen Buchanan, Justice, Legitimacy, and Self-Determination (New York: Oxford University Press, 2004), ch. 5.

8. Waldron, “Special Ties and Natural Duties.”

9. Simmons, Moral Principles and Political Obligations, 200-01.

10. See also Joel Feinberg, “Civil Disobedience in the Modern World,” in Philosophy of Law, 5th. ed., edited by Joel Feinberg and Hyman Gross (Wadsworth, 1995), 121-33.

11. William A. Edmundson. “State of the Art: The Duty to Obey the Law,” Legal Theory 10 (2004): 215-59.

12. This is compatible with our being bound to comply with the laws of foreign countries during visits, although this obligation would be explained by our consent—our permission to visit being conditioned on our (perhaps tacit) agreement to obey.

13. By “benefits valuable for any worthwhile life,” I have in mind what George Klosko calls presumptive benefits, which he argues ground political obligations. See Klosko, The Principle of Fairness and Political Obligation.

14. I am assuming that the content of the command is something like, pay taxes for these basic services (or so that purpose or end is generally assumed) —not to line the officials’ pockets.

15. I would like to thank the National Endowment for the Humanities for its support during its 2005 summer seminar on Political Obligation, Democracy, and Human Rights, during which the ideas for this article were first discussed and developed. Any views, findings, conclusions, or recommendations expressed in this publication do not necessarily reflect those of the National Endowment for the Humanities.

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Fall 2007 Volume 07, Number 1

Fall 2007
Volume 07, Number 1