APA Newsletters
Fall 1999
Volume 99, Number 1

Newsletter on Philosophy and Law

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Moral Legitimacy and Political Obligation¹

Mark C. Murphy
Department of Philosophy
Georgetown University

Recently a number of writers have rejected the claim that citizens generally have a moral obligation to obey the law, even within just states.² Several of these writers have been concerned to argue that the rejection of political obligation does not imply that there are no morally legitimate states.³ But these writers have made a false step, or so I shall argue. In rejecting political obligation and noting that the rejection of political obligation does not entail that states lack moral legitimacy, these writers have suggested that the status of moral legitimacy is thereby less problematic than the status of political obligation. It seems to me, though, that the notion that moral legitimacy is less problematic than political obligation is implausible.⁴

1. Clearing Away Peripheral Issues

My argument is that we have strong reasons to believe that the success of arguments of the sort employed against the existence of political obligation can be matched by the success of arguments of similar sorts against the existence of morally legitimate states. In order that this argument will not be misunderstood, though, I want to make clear that the position that I am taking is not one of two points familiar from recent discussions on this topic.

First, sometimes those that want to go the moral legitimacy route have framed their thesis in terms of morally legitimate state authority.⁵ This has invited the question of whether it is possible accurately to characterize a political institution as a practical authority without appealing to the notion of obligation, duty, protected reasons, or the like. If, as Raz has argued, an institution cannot be practically authoritative unless its dictates count as protected reasons for those under that institution, then it is clear that there could not be a morally legitimate authority without a corresponding obligation of obedience.⁶ Regardless of the merits of the view that the authority-obligation connection is conceptual, though, this is not the worry that I want to press against the idea that moral legitimacy is less problematic than political obligation. My concern with the view can be stated wholly in terms of its appeal to the idea of moral legitimacy and not at all in terms of its appeal to the idea of authority.

Second, as I shall discuss in a bit more detail below, the state’s moral legitimacy concerns its right to coerce citizens to comply with its dictates, that is, its laws. In holding that moral legitimacy is likely just as problematic as political obligation, I am not contesting the logical possibility of there being a state that is morally legitimate yet in which citizens lack an obligation to obey. I do not contest this possibility because the only way that I can see that one might argue for the impossibility of legitimacy without obligation would rely upon the premise that (necessarily) A has a right to coerce B to do (or refrain from) N only if B has an obligation to N (or refrain from N). Since this premise is false,⁷ I concede that it is consistent to assert a right to coerce obedience to law without citizens’ having a duty to obey the law, and thus that moral legitimacy is possible without an obligation to obey.

2. Why Moral Legitimacy is just as Problematic as Political Obligation

The problem faced by the person who is a friend to moral legitimacy but an enemy of political obligation is not that moral legitimacy cannot be present without political obligation, but that the same sorts of arguments put forward against political obligation seem applicable against moral legitimacy as well. This is not just a coincidence, but a result of the fact that the normative concepts that constitute political obligation and moral legitimacy have similar formal features.

In order to make this argument, we will need to have a clearer idea of what is supposed to be involved in a state’s being morally legitimate. Here are some general considerations concerning the state’s moral legitimacy. First, a state’s being morally legitimate is constituted by its being morally legitimate for the state to do certain things. Second, the acts that are relevant to the state’s moral legitimacy are coercive acts. Third, the coercive acts that are relevant to the state’s moral legitimacy are acts of coercing citizens to obey its laws, at least those of its laws that are at least minimally just. The version of the definition of the state’s moral legitimacy that I will focus upon incorporates these features by holding that a state S is morally legitimate if and only if S has the right to coerce S’s citizens to obey the (at least minimally just) laws of S. There are weaker notions of moral legitimacy that incorporate these three features, and I will turn to them briefly later in the paper. But I want to begin by focusing on the thesis that there are morally legitimate states in this particular sense of ‘morally legitimate.’

Without oversimplifying too much, we can distinguish between two sorts of argument against the existence of a general obligation to obey the law: basis arguments and consequence arguments. Basis arguments work by assuming that in order to be justified in asserting the existence of a moral obligation to obey the law, we need an argument from some independent moral principle (or set of moral principles) to the conclusion that there is such an obligation. Surveying the candidates and finding that all candidate arguments for this conclusion fail, basis arguments conclude that we are not justified in holding that there is such an obligation. Consequence arguments attempt to show that affirming the existence of an obligation to obey the law has implausible consequences, and thus that we have reason to doubt the existence of such an obligation. It seems to me, though, that if we think that the basis and consequence arguments that have been put forward against the political obligation thesis are successful, then we should think that similar arguments against the moral legitimacy thesis are likely to be successful as well.

Basis Arguments

A successful basis argument against political obligation surveys the various sorts of arguments for political obligation and shows them up as failures. Such arguments have proceeded by showing that all extant accounts of political obligation are subject to one of two types of inadequacy.⁸ One way for an account of political obligation to fail is for it to rely upon moral principles that are capable of producing an obligation to obey the law, but which are such that the conditions for application of those principles fail to obtain in actual political communities. This difficulty famously plagues consent theory, and possibly the principle of fairness as well. The principle of consent — roughly, that if one agrees to N, then one is obligated to N — seems capable of generating an obligation with the appropriate content, that is, to obey the law; one of the nice things about the principle of consent is that it enables one so neatly to fix the content of one’s obligation by making that content the object of the agreement. The principle of fair play concerns obligations that are generated by voluntary acceptance of benefits resultant upon general conformity with a certain set of rules.⁹ On this principle, the content of the obligation is given by the set of rules conformity with which has produced the relevant benefits, in this case, the law. With respect to both of these principles, if the conditions necessary for the application of the principles were satisfied — if citizens generally agreed to obey the law, or if citizens voluntarily accepted the benefits resultant upon conformity with the law — then it would be true that citizens generally have an obligation to obey the law. But, unfortunately, these conditions fail to obtain,¹⁰ and thus we cannot appeal to arguments from consent or fair play to show that there is an obligation to obey the law.

A second sort of failure is slightly more difficult to characterize, and my characterization of the failure involved will be a bit more controversial. On this sort of failure, the correctness and applicability of the moral principle can be granted arguendo; what is denied is that what results from this principle is an obligation to obey the law. Take as an example of this the moral principle that one should promote the public good. One might argue that the principle that public good is to be promoted yields, by way of the factual claim that obedience to law promotes the public good, the conclusion that one has an obligation to obey the law. The rejoinder to this argument is that it is not true that all acts of obedience to law promote the public good: some do not, and some even hinder it.

Now, some writers put their criticism of such arguments for an obligation to obey the law in the following way: these considerations do not show that there is an obligation to obey the law, but only an obligation to obey the law when it promotes the public good. (See, e.g., Smith (1973), 965.) But this seems to me to be a defective way of putting the point. It does not seem to me to be an argument, as such, against an account of political obligation that it is limited in some way: limited to, say, all just laws, or even to, say, all just laws in cases where God has not commanded us to do the contrary. What these arguments show, I think, is not that these accounts are defective because they fail to cover each and every case but that they are defective because they aren’t about obligations to obey the law at all, however qualified. Even if in some world it happened to be the case that all acts of law-obedience were optimific, that wouldn’t show that there is an obligation to obey the law, only that there is an obligation (that is, the obligation to promote the public good) which agents will violate unless their acts are in conformity with the law.

Obligation-ascription is terrifically sensitive to act-descriptions: that one has an obligation to N, and Q-ing happens to be an instance of N-ing, does not mean that one has an obligation to Q. More specifically, that one has an obligation to promote the public good, and that obeying the law happens to be an instance of promoting the public good, means that one has an obligation to obey the law. After all, in this imagined world, one would not need to mention that an act is required by law in order to account for any of the reasons that he or she has to perform it.¹¹ If that is the case, then surely there cannot be an obligation to obey the law in that world, however well the obligation to promote the public good covers the same ground that the obligation to the obey the law—if there were such an obligation—would cover.

Basis arguments against political obligation rely upon the following two claims: of the moral principles that can genuinely produce an obligation to obey the law, no such principle applies in actual political conditions; and of those principles that do, or might be granted to, apply, no such principle generates a genuine obligation to obey the law, but only obligations that more or less cover the ground that genuine political obligation would cover. It should be clear from this summary, if it is accurate, that the refutation of the political obligation thesis is helped along by the fact that it is bound to be exceptionally difficult to establish such an obligation. To establish such an obligation it is necessary to generate a moral requirement with precisely the right content, one that makes the dictates issued by the state not just coincident with a citizen’s obligations to a high extent, or even perfectly coincident with a citizen’s obligations, but rather makes the law part of the content of the citizen’s obligations. Those moral principles capable of getting the content right seem to require voluntary acts, not generally performed, in order to implicate the law in the content of the obligation; those moral principles that don’t require voluntary acts are incapable of getting the content quite right.

But the very stringency of the conditions under which one can genuinely be shown to have an obligation to f—which has enabled those unfriendly to political obligation to produce such successful basis arguments against it—seems bound to hold true also of attempts to provide a basis for the state’s moral legitimacy. For, first, it seems that we can properly assume that the state’s moral legitimacy, its right to coerce citizens to comply with its laws, is in need of some account. And, second, rights have the same feature, that is, extreme sensitivity to content, that makes it so difficult to establish the existence of an obligation to obey the law.

The state surely does not have a general right to coerce citizens. Even if it has a right to coerce citizens to fulfill their obligations, since ex hypothesi there is no obligation to obey the law, we could not hold that this is the basis for the state’s right to coerce citizens to obey the law. How, then, are we to argue that the state has the specific right to coerce its citizens to obey its laws? On the face of it, it seems likely that we could run a basis argument against attempts to establish the state’s moral legitimacy. One way to give the state a right with the appropriate content is to have that right devolve upon the state through acts of citizen consent, acts whereby citizens waive their rights not to be coerced with respect to obedience to law. These acts would produce a right of the correct content. But, as critics of the political obligation thesis argue, it seems to be a "brute fact" that citizens perform no such act (Smith 1973, p. 960).

Perhaps, then, we could turn to some other sort of right possessed by the state, and attempt to show that the state’s coercion of citizens is covered by this right. Suppose, for example, that the state has the right to do whatever it is that is needful for promoting the public good, or for promoting justice, or what have you. Again, though, it seems that this kind of argument will be open to the rejoinders leveled above against this kind of account of political obligation. First of all, it seems that there are some cases in which coercing a citizen to obey a just law is not needful for the promotion of the public good, or promotion of justice, and so it looks like the right to coerce will not be covered by the alleged more general right. And, second of all, even if it did cover the right ground, this would not be enough to show that the state has a right to coerce citizens to obey the law: for if in explaining the justification for performing these coercive acts, one would not need to refer to the law at all, but only to the gain to the public good that would result, it is clear that the content of the right does not involve coercion to obedience to law. The extreme content-sensitivity in ascribing obligations is similarly present in ascribing rights, and this content-sensitivity brings difficulties for establishment of the moral legitimacy thesis similar to those for establishment of the political obligation thesis.

Consequence Arguments

Consequence arguments, by contrast, aim to show that implausible implications follow from affirmation of the political obligation thesis, and thus we have reason to doubt that thesis. Here is a representative consequence argument.¹² Suppose that you are driving in a very sparsely populated area, and you come to a red light. You can see no one in the vicinity, visibility is excellent, and so forth. If we affirm the existence of an obligation to obey the law, then it follows that one is doing something morally wrong in driving through the intersection while the light is red. But it is, so it is argued, "abject, abstract sycophancy" (Edmundson 1998, 45) to hold that there is a prima facie duty to remain at a stop until the light turns green. Since affirmation of an obligation to obey the law has the wrong result, we have reason to doubt that there is such an obligation.

I will put to the side the issue of whether this is a good argument against the political obligation thesis; my concern is whether an argument of the same form and of equal force can be leveled against the moral legitimacy thesis. And it seems to me that such an argument can be found. Consider a person living in the wilderness yet within the jurisdiction of a particular state. He or she lives off the land, largely unaffected by the claims of governmental authority. His or her way of life is innocuous, yet it involves contravening in some petty way a governmental regulation of general application which undeniably applies even to our wilderness-dweller. Yet the contravening of this regulation does not contribute to any generally negative effect; the situation is such that the act is causally isolated. We can add to the case: the wilderness-dweller knows that others do not violate the law in this vicinity, and is prepared to cease performing the activity if others begin to, thus threatening to produce an undesirable effect. Now, the question is: in this situation, does the state have a moral right to employ coercion to get this person to stop behaving in this way? Without addressing the cardinal question of how strong the intuition is that the state lacks a moral right to coerce the wilderness-dweller, I will say that it seems to me that the notion that the state has a moral right to coerce this person is at least as implausible as the idea that one has a moral obligation to stop at the red light in the middle of nowhere. Yet the former is just as clearly an implication of the moral legitimacy thesis as the latter is of the political obligation thesis.

3. Why Weakening the Idea of Moral Legitimacy Doesn’t Help

It appears likely, then, that basis and consequence arguments can be formulated against the moral legitimacy thesis as well as against the political obligation thesis, and that moral legitimacy is just as problematic as political obligation. A friend of the moral legitimacy thesis might suggest, though, weakening the idea of moral legitimacy. One might suggest making the idea of moral legitimacy extensional rather than intensional, or abandoning the notion of rights altogether in the account of what makes a state morally legitimate. One might adjust the definition of moral legitimacy in the following way: one might hold that a state S is morally legitimate if and only if for every act of coercing its citizens to obey one of S’s (at least minimally just) laws, there is some right that S has that covers S’s performance of that coercive act. This definition of moral legitimacy extensionalizes the right to coerce, thus removing some of the difficulties present in generating a right of precisely the correct content. Or, one might remove the concept of a right altogether from the definition: a state S is morally legitimate if and only if all of its acts of coercing its citizens to obey S’s (at least minimally just) laws are justified, or have some justification.

But it does not seem to me that the weakening of the notion of moral legitimacy offers the person who is friend to moral legitimacy but foe of political obligation much help. For while extensionalizing the idea of moral legitimacy makes the moral legitimacy thesis easier to defend, so too does it make easier to defend an extensionalized political obligation thesis: that for every act of obedience to (an at least minimally just) law requiring f-ing, there is some obligation that requires the citizen to f. But, again, just as the extensional reading of the political obligation thesis seems to be falsified by the presence of acts required by law that there is no duty to perform - such as the allegedly innocent act of running the red light - the extensional reading of the moral legitimacy thesis seems to be falsified by the presence of acts of coercing obedience that are covered by no right - such as the act of coercing the wilderness-dweller to obey the picky regulation. And while removing the language of rights might further aid the defender of the moral legitimacy thesis, it might too aid the defender of the political obligation thesis - we can rewrite that thesis as the more general idea that for each law there is sufficient moral reason to obey it, or just some reason to obey it. And, again, it seems that counterexamples of the sort already mentioned can be brought to bear here to render dubious both of these theses.¹³

Conclusion: The Present Argumentative Parity of Legitimacy and Political Obligation

I have presented here not basis and consequence arguments against the moral legitimacy of states but rather reasons to suppose that such arguments could be constructed. The possibility is therefore open that friends of moral legitimacy might come up with accounts that manage to produce the necessary results to establish the state’s right to coerce citizens to obey the law. But we do have reason to be suspicious of such a project at the outset: it seems to me that we have as much reason to suppose that such an account of moral legitimacy is not forthcoming as there is to suppose that such an account of political obligation is not forthcoming.

One might deny this equivalence, on the basis of there being a history of failed accounts of political obligation while there is no such parallel history of failed accounts of moral legitimacy. But my guess is that the only reason that there is no such history of failure with respect to moral legitimacy is that it has been assumed that political obligation would underwrite moral legitimacy; the detaching of the latter from the former is a recent phenomenon. We have little reason to believe that, when friends of moral legitimacy adhere to the same standards of proof that they demand of friends of political obligation, the moral legitimacy thesis will turn out to be more defensible than the political obligation thesis.

Notes

1. I was supported during the writing of this paper by a fellowship from the Erasmus Institute.

2. See Robert Paul Wolff, In Defense of Anarchism (New York: Harper and Row, 1970); M. B. E. Smith, "Is There a Prima Facie Obligation to Obey the Law?," Yale Law Journal 82 (1973), 950–976, at 960; Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979), 233–249; A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979); Rolf Sartorius, "Political Authority and Political Obligation," Virginia Law Review 67 (1981), 3–17; Kent Greenawalt, Conflicts of Law and Morality (Oxford: Oxford University Press, 1987), 3–203; Leslie Green, The Authority of the State (Oxford: Oxford University Press, 1990); and William A. Edmundson, "Legitimate Authority without Political Obligation," Law and Philosophy 17 (1998), 43–60.

3. See Smith (1973), 975–976; Sartorius (1981), 4-10; Greenawalt (1987), 55; M. B. E. Smith, "The Obligation to Obey the Law: Revision or Explanation?," Criminal Justice Ethics 8 (1989), 60–70, at 62; Edmundson (1998), 44.

4. I am not conceding the success of arguments against political obligation, only granting their force arguendo in order to show that granting force to them seems to commit us to granting similar force to arguments against the state’s moral legitimacy. For my own positive account of political obligation, see "Surrender of Judgment and the Consent Theory of Political Authority," Law and Philosophy 16 (1997), 115–143.

5. E.g. Sartorius (1981), Greenawalt (1989), and Edmundson (1998).

6. Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), 23–26.

7. If I am having trouble stopping smoking, I could waive my right not to be coerced with respect to smoking; you would then have the right to knock the cigarette out of my hand whenever I tried to light up. But I would lack an obligation not to light up.

8. This argumentative strategy is clear in Smith (1973), Simmons (1979), Raz (1979), Greenawalt (1987), and Green (1990).

9. See H. L. A. Hart, "Are There Any Natural Rights?," Philosophical Review 64 (1955), 175–191, at 185; and John Rawls, "Legal Obligation and the Duty of Fair Play," in Sidney Hook, ed., Law and Philosophy (New York: New York University Press, 1964).

10. As Simmons, among others, argues: see Simmons (1979), 136–142; and A. John Simmons, "The Anarchist Position: A Reply to Klosko and Senor," Philosophy and Public Affairs 16 (1987), 269–279, esp. 270-275.

11. This is the point that Raz relies upon in arguing that even if the law is causally effective in generating social practices that coordinate individuals to produce a public good, the law itself need not be mentioned in explaining the reasons for acting in a coordinated way; the law’s role is causal, not normative. See his "The Obligation to Obey: Revision and Tradition," Notre Dame Journal of Law, Ethics, and Public Policy 1 (1984), 139–155, at 151–152.

12. This argument is employed in Smith (1973), 950 and re-employed in Edmundson (1998), 45–46; a similar example is given to make the same point in Sartorius (1981), 10.

13. A final refuge would be to weaken the idea of moral legitimacy just so that most such coercive acts are justified. But, again, few have denied that there is reason to perform most acts of conformity to law.

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APA Newsletters Fall 1999 Volume 99, Number 1

APA Newsletters
Fall 1999
Volume 99, Number 1