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Fall 2007
Volume 07, Number 1

Newsletter on Philosophy and Law

Articles

The Particularity Problem

A. John Simmons
University of Virginia

The majority of my writing in the area of “law and philosophy” has concerned questions about the existence, nature, and ground of a possible moral duty to obey the law (and, more generally, questions about the possibility of generic political obligations). A perhaps disproportionate percentage of my published work has been focused on these problems, including two books, parts of two others, and numerous articles.[1] Throughout I have argued that there is no moral duty of legal obedience (strictly construed) in modern states, at least as these are currently ordered, and that modern states thus lack the moral legitimacy[2] (or right to rule) that would in part correlate with a moral duty of subjects to obey their laws. These negative conclusions constitute the core of the position that is now widely referred to as “philosophical anarchism.”[3] The continuous, ongoing nature of my arguments on this subject has been necessitated less by my personal compulsiveness than by the precise nature of the negative conclusion I have sought to establish. Because I do not believe that asserting the existence of a moral duty to obey involves any internal consistency (which would permit a general, a priori rejection of all possible accounts of that duty[4]), I have had to try to defeat proposed accounts of this duty one by one, as they have been put forward, modified, and combined. This process has perhaps gone on for sufficiently long to try the patience even of those who agree with my conclusions.

But as the contributors to this issue of the APA Newsletter on Philosophy and Law all make clear, others writing about the duty to obey have been less persuaded by my negative arguments about a moral duty to obey the law than they have been by the various framing assumptions that I have employed in discussing the problem. Foremost among these assumptions (and probably the most original of them) has been my demand that an account of the duty to obey meet the “particularity requirement.” This requires, roughly, that such an account be able to explain why the moral duty (or obligation) to obey is owed specially to one particular political society (or to its subjects or governors) above all others (namely, to “our own” societies), rather than offering only some moral reason for obedience that would bind one equally or more imperatively to obey or support the laws or political institutions of other societies. The moral duty to obey the law should be understood to be a duty to specially obey our own laws in our own societies, thus tying this duty to the idea of allegiance and to the exclusive relationship of citizenship.[5] While this particularity requirement is certainly implicit in many historical accounts of the duty to obey, it was not, I think, ever explicitly formulated before I did so in my 1979 book on political obligation.

My principal use of the particularity requirement has come in trying to reveal the limits of appeals to natural duties in these debates about the duty to obey. If (to take the most familiar examples) the duty to obey is said to be implied by a natural moral duty to promote a morally important end such as justice or utility, the duty to obey will not be appropriately “particularized.” Justice and utility can be promoted abroad as well as locally (domestically), and only circumstantial considerations can dictate where one’s efforts ought to be made. Natural duty accounts, in short, can provide no principled grounds for preferring domestic legal obedience as a way of promoting justice or utility to domestic legal disobedience that yields superior non-domestic production of those goods abroad.[6] The aspect of the particularity problem that I have thus stressed most frequently has been that of under-inclusiveness: natural duty accounts of our duty to obey domestic law fail to show why those (or all of those) persons whom we would normally consider to be appropriate subjects of a duty to obey (say, the uncontroversial core of willing citizens) are in fact specially bound to domestic law and domestic political institutions.

But the particularity problem also has another side. Some attempts to ground duties of domestic legal obedience utilize (purported) moral principles that are actually over-inclusive— principles that, in explaining why citizens are bound to obey, also would imply duties of obedience for persons or groups (obvious “outsiders”) that nobody would be inclined to say are plausible candidates for such duties. Here is where (as I hope to show below) issues concerning historical injustices, contested claims to political authority, and states’ claims to geographical territory factor into the debates about the duty to obey.

So just as under-inclusive accounts fail to satisfy the particularity requirement by their inability to account for the special duties of obedience of everyone in the “right” group (or of anyone in that group all of the time), so over-inclusive accounts can fail by implausibly implying duties of domestic legal obedience for groups that plainly lack such duties. The particularity requirement demands most generally that the special, exclusive moral ties of obedience and support be justified for— and only for— those who are naturally construed as being real members of that political community. As we will see, the desire to avoid under-inclusiveness in accounts of the duty to obey has often produced results that suffer from the opposite particularity problem of over-inclusiveness.

Each of the contributions to the present issue of the Newsletter reveals in one way or another, I think, the centrality to these debates (about the duty to obey the law) of the problem of particularity— though some of the papers do so more clearly than others— and it is primarily on the importance of that particularity problem that I want to concentrate here. Before I begin, however, I should express my gratitude to the contributors for their willingness to consider and write about my work for this issue of the Newsletter. I am especially pleased to have the opportunity to respond to the arguments of these particular critics. Professor Klosko has been my friend and colleague at the University of Virginia for many years, and we have over the course of those years aged gracelessly together in our incessant debates about political obligation. Klosko’s contribution here was obviously calculated to age me further. Professor Naticchia once had the dubious honor of writing his doctoral dissertation under my supervision; but he managed to overcome this early handicap and has gone on to produce in the intervening years a significant body of clearheaded and interesting work, which I have always enjoyed reading. Professor Lefkowitz is a much more recent acquaintance, but I have been fortunate to be able to interact with him in conference and paper settings and have had the pleasure of reading nearly all of his many exemplary publications. Finally, let me thank Chris Griffin and Steve Scalet, the editors of this Newsletter, for their generous decision to produce an issue organized around my work in the area and for their labors in bringing it to completion.

II.

Let us begin thinking more about the particularity problem by asking an obvious question. If, as I have urged, satisfying the particularity requirement is centrally important to developing a plausible account of the moral duty to obey the law (and of generic political obligations), why was (and, to a certain extent, still is) this requirement not more widely acknowledged in discussions of the topic? The principal explanations, I think, are two. First has been a misunderstanding about the ways in which the theoretical must accommodate the real. This much seems clear: if theorizing about politics is to avoid charges of wild utopianism, theory must proceed against background assumptions about the world— about persons, about persons’ possible motivations, about the likely nature of human interactions, about the workings of social institutions, etc. — that are acceptably realistic.[7] A normative theory must not make itself inapplicable to the real world by ignoring salient and largely unchangeable features of the world.

But, one might claim, one salient and largely unchangeable feature of the real world is its division into sovereign, territorial political units. Another is that virtually all of us are born into these polities and in consequence taken by most (including the polities themselves and international law) as their subjects, provided only that political authorities refrain from despotism. But if we take this de facto division of humanity into subject populations to be simply a fact about the world that theory must accept, then we may mistakenly infer that the particularity problem is no problem at all. The real problem, it may seem, is simply that of how to explain or justify the (already acknowledged) local bonds of political and legal obedience (in non-despotical societies). Neither negative, anarchistic conclusions about our duty to obey nor worries about the particularity of the best account of such a duty might appear to be on the table. Much of the twentieth-century discussion of the duty to obey took place, I believe, with these assumptions behind the scenes, which in part accounts for the deeply conservative character of that discussion. It requires little imagination, however, to see that such a stance simply amounts to an undefended and unmotivated moral privileging of the political status quo. If the precise justification of a moral duty to obey the law is open to theoretical dispute, then so must be its very existence and the particularity (or non-particularity) of the justified moral bond.

The second explanation of the relative lack of attention to the particularity problem, and one that is probably at least as important as the first in explaining the orientation of contemporary political philosophy, is the influence of John Rawls.[8] Rawls, of course, virtually recreated political philosophy as a subject of serious study in the twentieth century, and his majestic work on social justice quite rightly determined the mainstream preoccupations and set the principal objectives of political and legal theory during the past fifty years. But Rawls’ political philosophy also has two characteristics that tend to obscure the importance of the particularity problem in accounts of the duty to obey. The first of these is the way in which Rawls’ theory focuses exclusively on the requirements for substantively just social institutions at the expense of failing to acknowledge morally relevant historical considerations.[9] Rawls’ theory of justice, of course, advances two now-famous principles to which the basic structure of a just society must conform. To the extent that a society is (reasonably) just in these terms, Rawls argues, the natural duty of justice requires that all to whom its institutions “apply” support it and comply with its rules.[10]

The problems with this position (to which I have repeatedly pointed in my writings on the subject) are two. First, it is simply unclear why a duty to do justice or to promote the good of justice should be thought to bind us to scrupulous domestic legal obedience, given that justice can be done in a variety of ways and that justice is needed in every society (and that support for just institutions may be much more urgently needed abroad than at home). This is just the “under-inclusiveness” objection mentioned earlier. The second problem, though, lies in trying to understand “apply” in a way that renders Rawls’ position tenable. If by “apply” Rawls means that institutions apply to us when they name us (explicitly or implicitly) as subject to their rules— or when, say, international law so names us— then Rawls over-inclusively and without argument simply gives moral sanction to the status quo. If by “apply” he instead means that institutions apply to us, say, when we consent to be bound by their rules or otherwise freely make those rules apply to us, then the appeal to a natural duty of justice is redundant. Our voluntary acceptance of the authority of the institution would be sufficient by itself to explain any duty of compliance and support.[11]

One might think that because Rawls is only speaking of just institutions that “apply” to us, there can be no real objection to allowing the de facto division of the world into subject populations to determine people’s moral duties of legal obedience (our first option for understanding “apply”). But thinking that would be to simply ignore the problem of historical injustices. Substantive justice in the basic structure of society (including democracy and broadly egalitarian distribution of primary goods) is nonetheless surely consistent with a society’s record’s including grave historical injustices. In cases where the injustice at issue raises questions about that society’s right to administer even its substantively just institutions to a subject population— say, to an illegitimately subjugated indigenous people or to the inhabitants of an illegitimately annexed or conquered territory— our concerns about claims that there is nonetheless a moral duty of legal compliance should not be calmed simply by pointing to the substantive justice of the institutions in question. Claims of a right to political autonomy by such groups cannot be undercut by arguing that the coercively imposed political institutions are substantively just. Claims to autonomy are claims that no institutions, however just, may be coercively imposed by others. If, then, we read Rawls as intending our first reading of “apply,” his account faces the objection that it over-inclusively implies duties of compliance and support for those who are plainly not legitimate subjects of the political societies within whose claimed territories they reside. Because these kinds of historical injustice are ubiquitous in the real political world, the inability to deal with them persuasively severely discredits a theory.

The second feature of Rawls’ political philosophy that precludes an interest in problems of particularity— and the feature that actually explains, I think, why Rawls is not uncomfortable about the “application” problem just noted— is the peculiar structure of Rawlsian ideal theory. Rawls, remember, distinguishes between ideal and nonideal theories of justice. Ideal theory establishes the “target” or ideal of social justice toward which our efforts in institutional reform ought to by aimed. By nonideal theory, Rawls appears to have in mind the theory of transitional justice: letting our ideal theory set the target, we ask what rules ought to be followed to move in fair and politically feasible ways from unjust circumstances to that ideal of social justice. The “peculiar” aspect of Rawlsian ideal theory lies in the assumptions that shape it. Ideal theory “assumes strict compliance” and “favorable circumstances” and “develops the conception of a perfectly just society and the corresponding duties and obligations of persons” in it.[12]

So far, so good. But by allowing ideal theory to focus solely on issues of internal or domestic justice, Rawls in effect limits his thinking about justice— and about the duties and obligations of persons relative to just institutions— by the further assumption (for purposes of ideal theory) that there is only one society in the world, a society that “we enter only by birth and exit only by death (or so we may appropriately assume).”[13] This assumption is elaborated and played out in the two “steps” of ideal theory Rawls describes in his later work: the first step concerning purely domestic justice, only after which we develop the ideal theory for international relations.[14] But if in ideal theorizing about just institutions and the duties of persons toward them we assume a one-state world, we will of course have no concerns about particularity. If there is only one society, a society which each enters by birth, there can hardly be any question about to which society’s institutions or subjects our duties of support or compliance are owed. Similarly, unjust subjugation or annexation cannot be problems for a society whose boundaries and subject population are imagined to be uncontroversially fixed. Problems of historical injustice are simply eliminated from consideration by this approach to ideal theory. It is, I think, a major defect of Rawlsian ideal theory that it does not even permit questions about particularity— about either under- or over-inclusiveness in its account of the duty to obey the law— to be raised. And the far-reaching influence of Rawlsian thinking about justice (and about our duties of legal obedience based on the natural duty of justice) largely explains why the particularity problem is not more widely discussed or considered in contemporary legal and political philosophy.

III.

I have said that the particularity problem is at issue in each of the essays contributed to this issue. This is probably least obvious in the case of Klosko’s essay. In fact, however, the problem, though carefully concealed, looms largest in Klosko’s case— and helps to explain why Klosko finds so many features of my own view (and of my earlier criticisms of his positions) mysterious and confusing. Klosko’s approach to the duty to obey, like Rawls’, illicitly privileges the status quo by ignoring the possibility of morally relevant historical considerations. For Klosko, as for Rawls, the boundaries of existing substantively— but not necessarily historically— just polities[15] define the relevant domains of moral authority over persons and territories; for, in Klosko’s case, it is existing polities that structure and administer the “cooperative schemes” that provide important public goods to those domains. Since the mere receipt of those (largely unavoidable) public goods is for Klosko sufficient to ground persons’ duties to obey, Klosko’s theory leaves no room to consider the morally crucial historical relations between states and their territories and populations. If a substantively (but perhaps not historically) just polity delivers important public goods to all parts of its territory, it matters not on Klosko’s theory how that polity acquired that territory— which means that it matters not to persons’ duties of obedience how they came to be recipients of the goods delivered to the territory within which they reside. Bloody conquest, coercive annexation, and wrongful abduction all appear, implausibly, to be possible paths to legitimate authority over territories and people on this theory, provided only that those territories and people are subsequently brought under the umbrella of a substantively just scheme that distributes unavoidable and important public goods.[16] Societies with substantively identical schemes are treated identically by Klosko, even if their histories are dramatically different in morally important ways.

As I have already suggested, the inability of a theory to take seriously the de-legitimating effects of such historical atrocities strikes me as an enormous defect, not one that can be repaired by tinkering at the edges of the theory or polling focus groups. Nobody, I assume, could seriously assert that a substantively just society— say, Canada— could come to have legitimate authority over (and be owed duties of obedience by) persons— say, the inhabitants of Alaska— simply by forcibly seizing and extending the provision of public goods (including franchise rights) to the territory in which those persons live. Yet Klosko’s position forces him to say just that. As far as I can tell, Klosko seems inclined to dismiss such concerns as mindless Lockeanism. But the Lockean’s insistence on consent as the source of our duty to obey plainly shows a sensitivity, absent from Klosko’s theory, to the need to ensure that even beneficial political arrangements not be counted legitimate without some kind of legitimizing pedigree. One cannot genuinely satisfy the particularity requirement by simply asserting particularity in the structure of one’s theory, by (e.g.) simply asserting that the boundaries of the de facto activities of any importantly beneficial scheme are morally unassailable.

These deep problems in Klosko’s theory become even more apparent when one examines his presentation of that theory in his current essay. There he employs his usual claims and examples. But the very examples Klosko takes to support his theory plainly themselves rest on undefended assumptions of legitimacy in the cases of political subjection at issue, rest on assumptions that the status quo defines the contours of political legitimacy. Grey and Brown are said simply to “live” in territories X and Y (Klosko, 4) and, in virtue of having benefited, to be obligated “to cooperate with their respective cooperative schemes” (Klosko, 4; my emphasis). What, exactly, makes those schemes “theirs”? Apparently, the simple fact of their having benefited from a substantively just (i.e., roughly egalitarian) “distribution” of an important public good through residing in a society with democratic decision rules. What, though, if Grey is a member of a coercively subjugated and unjustly decimated indigenous people who (quite reasonably) disputes Government X’s title to rule? What if Brown lives in a forcibly annexed (or coercively ceded) portion of Y’s territory? What if one of them was a member of an ethnic or racial group that was abducted and involuntarily relocated in the state that justly provides to all important public goods like military protection and pollution control? What if one of them is a supporter of a reasonable rival claimant (say, a legitimate government in exile) to the political authority being exercised by Government X or Y in its administration of the society’s “cooperative schemes”?

Nobody, I venture, would automatically conclude in such cases what Klosko concludes— that Grey and Brown have clear obligations of fairness to do their parts even in coercively imposed “cooperative” schemes that yield those public goods. But Klosko’s theory gives him no room to draw the more reasonable—the more skeptical— conclusion that those schemes are not theirs in a way that makes obligatory their cooperation with them. A scheme is not made yours (in any morally interesting sense) by your simply having unavoidable public goods rammed down your throat, in a fashion approved by the majority of those pushing the ram.

One could, of course, simply add to Klosko’s theory (or to a theory like Rawls’) an ad hoc provision that historical injustice (of a sort that would result in plainly over-inclusive obligation claims) outweighs or voids any obligations of fairness that would otherwise arise. But it is important to see that such a move would either be nothing butad hoc— that is, completely unmotivated by the theory itself, motivated only by the need to cook up the correct result[17]— or would have implications that undercut the theory as it has actually been presented by Klosko. The first option, of course, is indefensible on its face. But if we try to imagine what the motivation might be for Klosko’s making exceptions in cases of these kinds of grave historical injustices, the only natural explanation would seem to be this: that even significantly beneficial (and “democratic”) “cooperative” schemes may not be coercively imposed on people, with requirements that they participate and do “their parts,” where those people are entitled to govern themselves, to choose their own paths and administer for themselves any beneficial schemes they might favor. Schemes must be genuinely cooperative (not just called cooperative, as in Klosko’s theory), with participants freely participating and accepting their benefits, before those participants are bound to do their parts by obligations of fairness. But acknowledging that motivation would be fatal for Klosko’s ambitions. For it would bring his position directly in line with the Lockean philosophical anarchist’s conclusion that the path to political legitimacy is the path of voluntary political relationships— precisely what Klosko has always denied.

Once the nature of Klosko’s predicament is made apparent, it becomes easier to appreciate why he cannot seem to understand the point of any of the aspects of my position about which he complains in his essay. Consider, for instance, Klosko’s remarks on the “subjective conditions” that I have argued must be satisfied in order for the benefits of schemes to count as “accepted” in the right way (so that obligations to reciprocate for these benefits can be plausibly claimed to arise). My claim was (roughly) that there is an important moral difference between beneficiaries of schemes who take those benefits “willingly and knowingly” and those who regard the benefits as in essence forced upon them (or those who take them in non-negligent ignorance of their source[18]). On its face, it is hard to see why any reasonable person would think otherwise. But Klosko’s position is precisely that such subjective differences matter only if the “benefits” in question do not count as benefits at all for their recipients (Klosko, 6). That persons are opposed to having some particular group or government administer the public provision of goods— perhaps because they have been wrongly subjected to that administration— is simply irrelevant for Klosko. But by now it should be clear what the subjective conditions I’ve defended are accomplishing: they are part of the proper understanding of the principle of fairness precisely because without them one is left with Klosko’s over-inclusive (thus indefensible) version of the principle, which straightforwardly fails the particularity requirement.

Klosko regularly attempts to gain illicit rhetorical advantage on this subject by writing as if acknowledging these subjective conditions for acceptance of benefits means that people who simply prefer not to do their parts in cooperative schemes are, under these conditions, excused from any obligation to do so. (Throughout his current essay, things are no different on this score: Grey and Brown, he says, “would prefer” not to bear the burdens of supporting the scheme [Klosko, 4]; “it is not enough for Jones to say simply that he would prefer not to cooperate” [Klosko, 5].) But as Klosko knows perfectly well, my position has never been that those who merely “prefer” not to do their part are thereby excused from doing so. My version of the principle of fairness also condemns simple free riding. The claim actually in question is this: where, according to the values of the recipient (not the values of Klosko or others), the conjunction of the goods received from and the price demanded for them by the scheme does not constitute a net benefit— because of the character of the goods, the nature of the price, or the nature or source (“administrator”) of the scheme— recipients of goods are not obligated (at least as a matter of fairness to other participants in the scheme) to reciprocate for receipt of those goods. The motivation for this position should by now be clear. These “subjective conditions” are what properly particularize a fairness account of the duty to obey to only those persons who cannot honestly claim that the “cooperative scheme” is, on balance, not a good for them. As far as I can tell, Klosko has never advanced any argument against that position; rather, he has chosen again and again to refute a much simpler position on “subjective conditions,” one that is (as far as I can tell) held by nobody.

A similar response is available to Klosko’s dismissal of my demand that “cooperative schemes” be strongly or genuinely cooperative before they may give rise to obligations of fairness. Klosko says in reply only that I have “no real argument” for my position (Klosko, 7). The argument, of course, has already been offered[19], but is ignored by Klosko. I will not restate it here. In this context, however, the point of the demand for strong cooperation should be even clearer. If obligations are taken (as they are by Klosko) to arise from even the weak cases of “cooperation” I discuss— where benefits flow to persons from the mere coordination of the actions of others, without regard to others’ motives— the fairness account of the duty to obey becomes even more wildly over-inclusive. Not only are those included who have been historically wronged (normally by the very entity that administers the society’s “cooperative schemes”). Now we will be committed to saying as well that we have obligations of fairness to reciprocate to (to “repay,” so as not to “take unfair advantage of”) others who have benefited us entirely accidentally or even quite unwillingly. This, I take it, is simply implausible on its face. We cannot owe such a debt to such people any more than we can be indebted to someone for benefits he gives us only at gunpoint.

Consider finally what Klosko dismissively calls my “classification argument” (his name for it, of course, suggests that the argument concerns only what we call the relevant obligations or duties of obedience). His response, predictably, is that “it does not matter whether we describe the bases of their requirements as fairness or natural duty” (Klosko, 5). But, of course, we are not talking merely about how we “describe” or “classify” a duty. Our questions concern the character of the moral principle at work in an account of the duty to obey and consequently the sort of account that principle is (in virtue of its character) capable of yielding. As we have seen, natural duty accounts face serious particularity problems. And Klosko’s discussion focuses throughout not on the nature of the schemes he discusses and the relationships of their participants— on which matters of fairness properly depend— but only on the magnitude of the benefits the schemes produce and the needs of the people implicated in those schemes. Grey’s and Brown’s “compatriots” desperately need some good; nothing is said about the relationships between them and their “compatriots.”

When Klosko recasts my own examples to make them “more relevant” (that is, to make them better suit his purposes), he makes additions like supposing that “hearing the concert [is] necessary to preserve acceptable lives for all inhabitants of the community” (Klosko, 6). But if meeting society’s needs (or, more properly, the needs of its inhabitants) is the moral concern at issue in Klosko’s account, we ought to be examining the character of moral principles that are oriented toward that concern— such as principles of rescue or charity or beneficence or equality. But principles of that sort face straightforward particularity problems, for all people everywhere have equally important needs for the “essential” goods on whose importance Klosko fixes. There is nothing special, morally speaking, about the needs of people who happen to be nearby.

Klosko attempts to finesse this particularity problem by simply asserting that “because individuals receive the relevant public goods from particular cooperative schemes, the particularity condition is satisfied as well” (Klosko, 5). But that, of course, is just to miss the point— or, rather, to beg the question—in the most obvious way. The fact that goods were received from a particular source only shows that any subsequent efforts are owed to that source if the moral principle at work is one of reciprocation (such as a fairness or gratitude principle). But Klosko, as we have seen, shows no interest in establishing that the schemes on which he concentrates really are cooperative in the way that brings into play issues of obligatory reciprocation and considerations of fairness. And if those schemes are not properly cooperative— as I think they plainly are not in typical large-scale, centrally governed states— then the particularizing effects of a true fairness account of the duty to obey simply cannot be appropriated as needed by Klosko.

Klosko wants us to focus our attention on political schemes that produce benefits like “law and order, national defense, control of threats to the environment, protection against infectious diseases, against natural disasters,” etc. (Klosko, 5) because these schemes “provide the essential public goods on which the successful functioning of modern societies depends” (Klosko, 5). What it is crucial to notice here is that the explanation Klosko offers for his special attention to these schemes has absolutely nothing to do with fairness in the relations or actions of the participants in the scheme. It has to do rather with the importance of these schemes to (some or all) of their participants, or perhaps just their importance simpliciter. It is not that failing to do one’s part in such “essential” schemes is somehow especially unfair; at most it is that widespread defection or non-participation would have worse consequences in such cases. Precisely the same kinds of relations between participants and the same kinds of requirements of participation can hold in cooperative schemes that produce far less essential goods (as Klosko, oddly, seems happy to concede). But that means that the values that actually drive Klosko’s account are not those of fairness. Rather, the real orientation of the theory concerns the importance to persons of the benefits of law and order, national defense, etc. In short, its orientation relies on the moral importance of producing some valued end— precisely the orientation of a natural duty account of the duty to obey. This is not a mere matter of “classification.” Klosko’s theory fails the particularity requirement in virtue of the kinds of considerations his theory identifies as morally important and the ways in which those considerations are employed to try to explain our duties.

IV.

My responses to the essays by Naticchia and Lefkowitz can be considerably briefer and less adversarial, for their arguments are in my view considerably more persuasive. Both essays are shaped in certain ways by their authors’ acceptance of the particularity requirement, and both concern the impact of that requirement on natural duty accounts of the duty to obey domestic law. Naticchia’s essay, though, suggests that the particularity requirement may be in certain ways less important (to debates about the duty to obey the law) than my remarks thus far have suggested. More specifically, Naticchia questions whether my “particularity objection” to natural duty accounts— the criticism that such accounts under-inclusively fail to show why the duties they employ require (of the “right” people) uniform domestic legal obedience— really targets “the central flaw in natural duty accounts” (Naticchia, 15). He argues that it does not, that even were the particularity problem not an issue for natural duty accounts, they would still fail in a more fundamental way— that is, fail in their ambition to establish a conclusion that is interestingly different from that of philosophical anarchism. Thus, natural duty accounts are in far worse shape than I have suggested (and philosophical anarchism in correspondingly better shape), while the particularity debate is far less decisive in the evaluation of such accounts than my writings have suggested.

Naticchia discusses only one kind of natural duty account— the most familiar kind that employs, with Rawls, the natural duty of justice. It is not clear to me whether his argument can be generalized to apply to all of the other kinds of possible natural duty accounts (such as Wellman’s account, discussed in Lefkowitz’s essay); but perhaps analogues of Naticchia’s argument can be constructed to deal with them, as well. (If not, of course, then the particularity objection to these accounts may turn out to be more central than Naticchia allows, with only accounts utilizing the natural duty of justice facing the more basic problems he describes.)

Let us focus for now, though, with Naticchia, solely on the natural duty of justice and its potential to yield a suitably general account of a moral duty of legal obedience. His central argument, I believe, proceeds as follows: setting aside the particularity requirement (which a natural duty theory might be able to meet), the burden of any theory that purports to justify a duty to obey the law is to demonstrate that the bare fact that conduct is required by law constitutes a weighty moral reason so to act. Philosophical anarchism can allow that many laws have contents that make it obligatory to comply with them. But the obligation or duty is in virtue of the independent moral importance of the required act, not in virtue of that act’s being required by law. There is no general moral duty to obey the law per se. Unless the natural duty theorist can thus establish the general moral significance of something’s being required by law, she will have to deliberate about action just as the anarchist does— by weighing competing moral claims on her actions, but without ever considering in that process the fact that actions are legally required (forbidden, permitted). And, Naticchia argues, the natural duty of justice cannot in fact be plausibly characterized so as to establish the general moral importance of the bare fact of legal requirement.

Naticchia’s route to this conclusion rests on a criticism of the way in which theorists routinely (following Rawls) appeal to the natural duty of justice in these debates. (What follows is a slightly generalized, and not a particularly literal, summary of the force of Naticchia’s case.) The standard approach among natural duty theorists is to allow the assessment of the entire basic structure of society (that is, of all of society’s basic political, legal, economic, and social institutions) to determine what the natural duty requires. That structure is either reasonably (acceptably) just overall or unacceptably unjust overall (according to the correct principles of justice). If the former is the case, there is a natural duty of legal compliance (with provisions concerning those very special cases in which injustice in a reasonably just society may limit that duty). If the latter, compliance would only be required as a matter of justice if nonideal theory somehow (implausibly) identified compliance as the rule describing the fairest and most feasible transitional path to a basic structure that is just overall.

But, Naticchia (in effect) asks, why suppose that the natural duty determines moral requirements at the overall level of the basic structure? We can distinguish between the various institutions that comprise that overall structure, some of which may be individually just and others individually unjust (regardless of our overall assessment of the justice of the whole). And if it is the value of justice that is motivating our account, why not say that our duty of justice is to comply with the rules only of those institutions that are individually just? But if that move seems plausible, we can distinguish as well, within individual institutions, the justice and injustice of the various rules or sets of rules that constitute those institutions, arguing that justice requires only compliance with those rules that are themselves just, not compliance with all (including the unjust) of an (overall) just institution’s rules. But this process of “disaggregating” institutional rules (Naticchia, 17) leads inevitably to the conclusion that the natural duty of justice in fact requires of us a “piecemeal,” case-by-case assessment of the contributions of individual rules to the good of justice, with our duty being to comply or not with those institutional rules according to their individual content. And this, Naticchia argues, is just how the anarchist asks us to reason. No case has been made, on this plausible construal of what justice requires of us, for complying with institutional rules just because they are institutional rules.

I, of course, have no particular desire to defend natural duty theories, and I am, in fact, broadly sympathetic with Naticchia’s suggestions. He seems to me correct in suggesting that not enough attention has been explicitly paid to the question of why the value of justice should be thought to ground a duty toward rules qua integral parts of an overall social structure rather than toward rules qua individual vehicles for directly promoting justice. I can do no more here, though, than try to imagine the natural duty theorist’s answers to this question. Why, then, do defenders of natural duty accounts focus so quickly (in determining the duty’s extent) on the overall justice of society’s basic structure?

There are, I think, two natural answers. The first is not considered by Naticchia, but is central to Kantian thought about justice (which lies behind most natural duty accounts). Justice is only possible, on this view, in the presence of a neutral institutional structure that interprets and enforces peoples’ rights and duties. So long as some such institutions are in place, their particular character is not terribly important, provided that the institutions are sufficiently respectful of persons to actually generate the support needed for stability (and thus for justice). The duty that the value of justice imposes on us is to create (where none exists) or support and comply with (where it does exist) an institutional structure that makes justice possible by “realizing” our otherwise merely “potential” rights. Our focus in determining our duties should be on the overall structure of the institutional arrangements, not on “disaggregated” institutional rules, because it is the structure of legislation and enforcement that creates the possibility of justice, not the characters of individual rules. Indeed, rules cannot even properly be called just (or unjust) except insofar as they are considered as pieces of an overall institutional structure that administers justice in a society. While I do not myself find this Kantian line at all compelling, it is a likely route for a natural duty theorist to take in disputing Naticchia’s claims.

The second natural explanation of the focus on overall societal justice is the one Naticchia considers centrally (and one to which I will briefly return in connection with by Lefkowitz’s essay): democratic political procedures are inherently just or fair “structuring” rules for a society. To the extent that other (“lower order”) institutional rules flow from democratic decision-making by a society, the justice of that procedure is at least partly “transmitted” to the generated institutional rules, such that simply evaluating their justice piecemeal is to ignore their true moral character (by ignoring their genesis). Naticchia suggests that such “proceduralist” views of democracy are implausible (Naticchia, 17) and that, in any event, the anarchist can account for the moral value of democracy by accepting that he should not take lightly disobedience to democratically made rules, especially where doing so might negatively affect the prospects for the continuing viability of democratic decision-making (Naticchia, 17).

Naticchia’s reply is, I think, correct as far as it goes. My own response to such democratic proceduralism would be simpler and more direct (and will anticipate some of my remarks below about Lefkowitz’s essay). Even were it true that democracy is the fairest or most just form of collective conflict-resolution, it is still a decision procedure that could only be justly required of those who constitute, morally speaking, a collective in which joint decision-making is required and necessary. One cannot simply take any randomly chosen set of persons— say, me and my students, or two Scots and four Cambodians— and plausibly declare that they are collectively subject to democratic decision rules. And it is precisely the inability of natural duty accounts to identify the “right” group as bound to collective allegiance that caused their difficulties (of under-inclusiveness) with the particularity requirement. The justice of democratic rule-making can only be “transmitted” to the created rules if the justice of subjecting all to democratic institutions is first established.

No existing democracy can, in my view, make such a case, in light both of historical injustices and contemporary required subjection. In the end, of course, as a Lockean philosophical anarchist, I would argue (with Locke) that only personal consent can make one a member, morally speaking, of a collective and that thus only personal consent to democratic decision-making can make just the imposition of democratically produced rules. If that is true, of course, then (in light of the scarcity of personal consent in actual political life) there is nothing of moral interest in institutional (including legal) rules except their contents. And it is that fact which implies that in discharging any natural duty of justice we must look solely at institutional rules’ “disaggregated” potential for advancing the cause of justice.

I turn, finally, to Lefkowitz’s essay, from which I will pluck just three ideas on which I would like to briefly comment. Lefkowitz’s goal in his essay is (contrary to Naticchia’s) to “encourage” the development of natural duty accounts (of the duty to obey the law) by identifying the limits of my critique of Kit Wellman’s “samaritan” natural duty theory (and showing how these limits can be exploited in developing a more convincing, but related theory). In particular, Lefkowitz thinks (a) that a related natural duty of “positive provision” could be painlessly substituted for the samaritan duty employed by Wellman (and correctly criticized by me); (b) that while I am correct in arguing that such accounts cannot satisfy the particularity requirement, this fact lends no support to my Lockean consent theory (of legitimacy and obligation); and (c) that were there in fact a moral duty to support a particular state, I am mistaken in claiming that this would still be insufficient to establish a duty of legal obedience (Lefkowitz, 9).

With the first and second of these arguments I have no particular quarrel. The second claim seems to me straightforwardly true, and if I have ever suggested the contrary, I did so unintentionally.[20] Consent theory is, I think, an especially compelling candidate for the source of particularized political bonds. But the mere failure of natural duty accounts to satisfy the particularity requirement— and the mere truth of philosophical anarchism— shows neither that consent can give rise to political bonds nor that it is the sole source of such bonds. I am also broadly sympathetic with some aspects of Lefkowitz’s proposal to replace Wellman’s “hybrid” positive duty with a perfect duty of positive provision. Though I would dispute some aspects of Lefkowitz’s characterization of this positive duty, I am chiefly concerned to press the point that Lefkowitz concedes— namely, that even were a Wellman-style account to utilize the more plausible duty of positive provision, the resulting account would still fail to satisfy the particularity requirement (Lefkowitz, 11).

I am, however, prepared to dispute the last of Lefkowitz’s arguments, concerning the relationship between a particularized duty of support and a duty of legal obedience. While this is, of course, in a way for me just a side issue— given that I in fact deny the premise (namely, that a Wellman-style account can ground a particularized duty to support domestic political institutions) — it might seem to be considerably more important than that to those who believe that some natural duty account can in fact satisfy the particularity requirement. Naticchia, remember, asked us to accept (arguendo) that belief, but he arrived nonetheless at a skeptical conclusion. Lefkowitz also asks us to accept it, but arrives at the opposite conclusion.

One strategy this coincidence suggests, of course, is to simply apply (a variant of) Naticchia’s argument to Lefkowitz’s claims. Even if the natural duty were a duty to address the need for justice (for overcoming Hobbesian lawlessness, for satisfying human rights, etc.) locally, those local political and legal institutions with which we will be presented in our home states will be divisible into rules and sets of rules that differentially contribute to the local end set by that natural duty. It would seem, then, that legal compliance will be far more strongly required in some cases than in others, and perhaps not required at all in still others (so that legal obedience, properly speaking, will not be required at all). This, of course, would square with the commonsense view that it is very important to obey some laws (e.g., core criminal prohibitions), less important to obey others (e.g., parking and panhandling laws), and not important at all to obey still others (e.g., sodomy and fornication statutes). It would also square, of course, with the practical stance recommended by the philosophical anarchist.

What is supposed to save the natural duty theorist from this conclusion, according to Lefkowitz (and Wellman), seems to be this: if there is a shared local task of doing justice (preserving lawfulness, satisfying human rights) that is advanced by law and state, it would be unfair for persons to use their own judgment to discriminate between important and unimportant laws (obeying and disobeying accordingly). This kind of discretion is a valued commodity that can only be exercised by a few. If all exercise it, chaos and lawlessness will ensue. So discretion must be foregone by each (unless some mechanism is installed to fairly distribute occasional rights of discretion) out of fairness to those others whose uniform obedience, after all, is what makes it possible for a few to exercise discretion without themselves suffering dire (or others suffering morally unacceptable) consequences (Lefkowitz, 12).

But surely something has gone wrong when an argument implies that we act just as unfairly (wrongly? unjustly?) when we violate an anti-sodomy statute as when we violate a legal prohibition on larceny or assault. If we are duty-bound not to unfairly exercise our discretion in judging the former law to be unimportant (indeed, deeply wrong) and so ignoring its requirements, we are duty-bound to take with respect to each law, good or bad, precisely the same practical stance. Lefkowitz writes that the moral duty “to obey the law follows from the moral requirement that agents treat fairly those with whom they act in order to provide security for all” (Lefkowitz, 12). If we think only of laws that are crucially instrumental in securing our basic rights, of course, this sounds more plausible. But no actual legal system, democratically produced or not, consists only (or even mostly) of such laws. And where laws are only indifferently related to the goal of “providing security for all,” it is hard to see how considerations of fairness gain enough traction to sanctify such laws. Indeed, it is not obvious that if all used their discretion soberly and honestly, disobeying only those laws that seemed to them morally unimportant, chaos and lawlessness would be the result.[21] Indeed, I would rather my neighbors act on such judgments than that they mindlessly obey the law, simply because it is the law. That, however, would be to live in a community of philosophical anarchists, not a community of persons who took themselves to have a duty to obey the law per se.

Let me conclude (I hope not unfairly) with some quick remarks about a couple of suggestions made largely en passant by Lefkowitz in his essay. The first of these concerns the possibility of utilizing the importance of “democracy to account for the particularity of the duty to obey the law” (Lefkowitz, 11n17). As I suggested above, democracy is no cure-all for political illegitimacy. Even if democracy is allowed to be an intrinsically fair (or the fairest possible) decision procedure for collective resolution of intransigent disagreements, it remains true that even perfectly fair procedures may not be simply imposed on some by others without risk of wrongdoing.[22] Destroying the societies of indigenous peoples (or coercively annexing some autonomous territory) before conferring on the survivors the blessings of (our, not their) democratic political institutions cannot legitimize (with respect to them) subsequent democratic decision-making and impose on the survivors duties to comply with the resulting rules (particularly in light of the likely result that, in the matters that concern them most, they will be steadily outvoted by entrenched majorities). Democracy is not an arrangement so special that it needs no legitimating pedigree. And that strongly suggests, I think, that democracy is an unlikely path to solving the particularity problem, especially when one keeps clearly in view the particularity problem of over-inclusiveness that I stressed above.

The second of the brief, passing remarks in Lefkowitz’s essay on which I would like to comment is his intriguing suggestion that natural duty accounts can satisfy the particularity requirement “only in a world with a single legal system” (Lefkowitz, 11).[23] I call this intriguing because a world-state would appear to accomplish in reality what Rawlsian ideal theory constructs via thought experiment. As in the Rawlsian original position, in a real one-state world, particularity problems would appear to be eliminated for a natural duty account of the duty to obey domestic law. No longer could it be argued that the natural duty might bind one equally or more imperatively to serve justice (give aid, secure human rights) “abroad”; for there would be no “abroad” in a one-state world. Domestic law would be the only law.

It is important to see, though, that this argument rests on (at least) two contestable assumptions. The first is that a natural duty to support some set of political institutions really does imply a duty specifically of legal obedience. Lefkowitz, of course, does not “assume,” but rather argues for this view; I have, however, already suggested some reasons to question it. The second assumption is that under-inclusiveness problems are the only particularity issue with which a natural duty theory (of the moral duty to obey) needs to cope. My arguments above suggest, though, that over-inclusiveness is an equally daunting particularity problem, and it is unclear why even the existence of a single global state would solve for natural duty theories this latter problem. Unless a world-state could miraculously manage to arise in a morally pristine fashion— an event even less likely than such a world-state arising at all— natural duty accounts would still find themselves without any well-motivated mechanism for excluding from duty those who are clear “outsiders” relative to that state, such as those unjustly subjected by force to the new institutions with global scope. Deeply compelling claims to individual and group autonomy would almost certainly persist throughout (and after) whatever process we might imagine leading to the creation of a world-state. And those claims would either have to be respected or ignored, resulting either (in the former case) in a non-global state (thus reintroducing particularity problems of under-inclusiveness) or (in the latter case) in a state whose legitimacy with respect to those claimants must surely be questioned. In neither case would a natural duty account— of the moral duty to obey the single legal system that claims global scope— avoid the particularity problem. So I think, in the end, that the particularity problem remains a hard nut to crack for any brand of natural duty theory.

Endnotes:

1. Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979) and my portion of Is There a Duty to Obey the Law? For and Against (Cambridge: Cambridge University Press, 2005) are entirely treatments of these problems. Several chapters of my Justification and Legitimacy (Cambridge: Cambridge University Press, 2001) and one chapter of Political Philosophy (Oxford: Oxford University Press, 2008) are also devoted to these problems. My articles on the subject are listed in the notes and bibliographies of those books.

2. Here I use the term “legitimacy” in what I take to be its classical sense. Klosko (in his Note 12) suggests that “most scholars” in fact use the notion of “authority” to convey what I am here calling “legitimacy.” Klosko’s claim is certainly false if taken to be about usage throughout the history of discussions of state legitimacy. Movement in the direction of distinguishing legitimacy from authority (rather than equating them) has been motivated primarily by relatively recent skepticism about the possibility of demonstrating a moral duty to obey (or political obligation). If there is no duty to obey that could correlate with state legitimacy—but if we still want to argue for the legitimacy of modern states—then we must invent a new, distinct notion of legitimacy, arguing that states may be legitimate in that new sense even if they lack the kind of moral authority that would correlate with subjects’ duties.

3. Thus employing the name given to a related position in R. P. Wolff, In Defense of Anarchism. I discuss the possible varieties and offer a fuller account of the substance of philosophical anarchism in “Philosophical Anarchism,” ch. 6 of my Justification and Legitimacy.

4. This, of course, is Wolff’s strategy in In Defense of Anarchism. See my grounds for rejecting this strategy in “Philosophical Anarchism,” 104-05, 110-11.

5. While dual or multiple (i.e., non-exclusive) citizenship is, of course, a familiar phenomenon, it is, I think, typically understood to bind persons in virtually exclusive relationships to those societies within which they reside.

6. Of course, I have also argued that, even confining our attention solely to the domestic promotion of such goods, the natural duties cannot dictate anything like uniform legal obedience. Lefkowitz disputes this contention, and I offer a reply below. For a much longer and more detailed version of these arguments, see Is There a Duty to Obey the Law? ch. 7.

7. Discussed in my Political Philosophy, 9-10. Klosko, in his contribution to this issue, in effect accuses me of ignoring this requirement of realism. He suggests that my political philosophy rests on an inadequately presented (“elusive”) and certainly false Lockean “political sociology” (Klosko, 3). This criticism is, however, simply confused. Lockean philosophical anarchism (of the sort to which I subscribe) is a purely normative position, which holds that most subjects of modern states have no moral duty to obey the law and that such moral duties can be grounded only in actual, personal consent to political authority. Arguing (for or against) that position requires only an understanding of the relevant moral principles (the principles that might ground a duty to obey) and a view about the character of existing political societies (to which these moral principles either may or may not be properly applied). The position in question presupposes or rests on no assumptions about how we could “do without the state” (Klosko, 3) or about what a stateless society would look like. I do not take myself (or Klosko, for that matter) to be qualified to make authoritative pronouncements on those subjects; nor are any such views needed in defending philosophical anarchism, however much Klosko may wish to make this his subject. We may speculate, if we wish, about the social consequences of the (highly unlikely) event of large numbers of people coming to believe the conclusions of philosophical anarchism. My own speculation (and it is no more than that) is that sovereign states would not be done in by such a development, but that they might be forced by their subjects to become more just and less uniform in their coercive demands. Klosko may speculate differently. But even if it were true that social chaos would be the result of people coming to subscribe to philosophical anarchism, that would not in any way demonstrate the falsity of the normative claims (unless we embrace what I regard as an implausibly simplistic version of a pragmatic theory of truth). Klosko, of course, disagrees, and he appears to believe that the crucial issue is that of the state’s “necessity” (whatever that might mean!). If the state is “necessary,” then we must be obligated to obey it. The only issue is exactly how we cobble together a plausible-looking defense of that preordained conclusion. I think that approach is deeply mistaken (see my discussion of the possible meanings of necessity claims and my critique of necessity arguments in Is There a Duty to Obey the Law? 127-42).

8. The first explanation offered above is, of course, also relevant to the context of Rawlsian political philosophy. Most explicitly in The Law of Peoples, Rawls identifies as his theoretical target the description of a “realistic utopia.” And part of the “realistic” aspect of his project is his acceptance of the world of modern, sovereign, territorial states— and his acceptance of the division of the world into the political units with their subject populations that have in fact evolved and in fact been accepted as such by custom and by international law— as the appropriate empirical starting point from which theorizing should proceed: “It does not follow from the fact that boundaries are historically arbitrary that their role in the Law of Peoples cannot be justified. On the contrary, to focus on their arbitrariness is to fix on the wrong thing. In the absence of a world-state, there must be boundaries of some kind, which in isolation will seem arbitrary...” (The Law of Peoples [Cambridge, MA: Harvard University Press, 1999], 32). In my view, however, much of this “arbitrariness” has been deeply morally significant, and it ought to raise serious doubts about both the extent of political legitimacy in de facto states and the distribution of legal and political duties among de facto subjects.

9. Nozick, of course, famously criticized Rawls’ theory of justice for its neglect of historical considerations. I am not here reiterating that critique. Rather, my concern is about historical considerations bearing (primarily) on states’ acquisitions of geographical territories and on their consequent subjugations of groups and persons within those territories. Even were Rawls’ substantive theory of justice invulnerable to Nozick-style “historical critiques,” it would remain open to this second kind of charge of insensitivity to historical considerations (developed below).

10. A Theory of Justice, §§19, 51.

11. And any attempt to explain the duty to obey in real political societies in terms of voluntary acceptance would have to overcome the familiar objections to such accounts that they find voluntariness where there is none in evidence.

12. A Theory of Justice, Revised Edition (Cambridge, MA: Harvard University Press, 1999), 216. By “strict compliance” Rawls means that “everyone is presumed to act justly and to do his part in upholding just institutions” (ibid., 8). By “favorable circumstances” he means that there are no “natural limitations and historical contingencies” (ibid., 216) that present significant obstacles to achieving a just basic structure.

13. Political Liberalism (New York: Columbia University Press, 1993), 136.

14. The Law of Peoples, 30-33.

15. By a “substantively just polity” I mean only a polity whose basic institutions currently satisfy applicable principles of justice in their distributions of goods and burdens (to those persons identified by the polity as subjects or citizens).

16. The only place that I can find in Klosko’s work where he even comes close to considering these issues is in his very quick mention of (what he calls) the “transition requirement” (Political Obligations [Oxford: Oxford University Press, 2005], 65, 69-70). And there he appears to argue that victims of “conquest and other injustice” must submit to imposed schemes, lest they violate the right of the democratic majority to have things the way they like them (69-70). Issues of historical injustice “are largely irrelevant” (70). If this is, indeed, Klosko’s view, it is quite extraordinarily insensitive to an enormous and plainly continuing challenge to political legitimacy in the modern world.

17. In my view, Klosko’s shift to his “multiple principle” approach (Klosko, 2-3, reiterating Political Obligations, ch. 5) is best described in this way— that is, as a perfectly ad hoc attempt to paper over the holes in his original theory by simply tacking on (or, better, “folding in”) whatever new “principles” his argumentative needs suggest to him. In particular, Klosko’s new (and rather bizarre) “Common Good Principle” (Political Obligations, 111-20) is plainly just a combination of elements of his fairness theory with those new elements that are required to give him exactly the conclusion he wants. Calling the resulting implausible concoction a new “moral principle” does not make it one. Obviously, the inadequacies of his fairness theory cannot be so simply remedied. The inadequacies of the original theory simply discredit that theory, showing that it accounts for no duties or obligations at all; there is nothing substantial remaining to which new “principles” can be added. If modern political societies are not “cooperative schemes” of the right sort to generate obligations of fairness, we cannot save the fairness theory by adding to it new elements with completely different characters and motivations. Klosko’s criticism of (what he calls) my “divide and conquer” strategy (i.e., the strategy of refuting individually one-principle accounts of the duty to obey) (Klosko, 2; Political Obligations, 99) would be more convincing if he could show— which, of course, he does not— that enough is left of the individually refuted theories that they can somehow be combined in a way that allows them to fare better collectively than the flawed theories fared individually. I see no reason to expect that two defective accounts are likely to combine in a way that magically repairs the defects of both.

18. The point of this aspect of the “conditions” is this: persons should not unwittingly acquire burdensome obligations (which they might otherwise have publicly renounced) in virtue of their unwitting receipt of benefits, where those benefits flow from schemes whose operations are concealed from reasonable, non-negligent “vigilance.”

19. Justification and Legitimacy, 38-42.

20. Incidentally, in neither of the passages cited by Lefkowitz in his Note 18 do I suggest that philosophical anarchism and consent theory are conceptually (or in any other way) linked. They simply happen to be two positions both of which I endorse.

21. It is easy to be drawn by proponents of such arguments into imagining that universal “discretion” would really amount to all just doing exactly what they happened to feel like doing. But that is not the kind of practical stance whose generalization we should be asked to consider. The philosophical anarchist proposes to act contrary to law only where his considered, honest judgment about morality’s requirements and permissions allows it. Discretion thus understood is not license (to paraphrase Locke).

22. Political Philosophy, 112-18.

23. I take my remarks above (on democracy as a “particularizer”) to suggest possible problems as well with Lefkowitz’s contention that democracy can solve particularity problems in a single, federal world-state (Lefkowitz, 11n17).

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Fall 2007 Volume 07, Number 1

Fall 2007
Volume 07, Number 1