APA Newsletters
Fall 1999
Volume 99, Number 1

Nozick’s objections were aimed at the duty of fair play itself, and indirectly at the strategy of deriving the duty to obey the law from it. Nozick challenged the idea that the fair play duty could in fact so easily finesse the difficulties that beset consent theories; he demanded to know how others might thrust a duty upon one by merely benefiting one, and he offered a number of examples purporting to show that a cooperative scheme that merely benefits another is insufficient to impose a duty of reciprocal sacrifice, at least not absent something like consent to cooperate. Rawls had similarly concluded that acceptance of benefits, over and above mere receipt, is necessary to create an obligation.

Klosko has challenged Nozick’s dismissal of the duty of fair play and has, thereby, undertaken to press forward with Rawls’s early, but later abandoned, project of establishing the duty to obey the law as a species of the duty of fair play. Klosko proceeds by first distinguishing excludable and nonexcludable goods in the following way: excludable goods (such as admission to a concert) are ones that are readily deniable to anyone who refuses the conditions providers place upon their provision, while nonexcludable goods (such as public order and national defense) cannot readily be denied by their providers, nor refused by their recipients. The troublesome cases for the fair play account, Klosko thinks, involve nonexcludable goods, for these do not seem to be capable of being accepted in the required sense. But a further distinction, between presumptive and discretionary goods, helps limit the difficulty. Presumptive goods are those that, like Rawls’s primary goods, may be presumed to benefit anyone who receives them, unlike discretionary goods that, though pleasant enough, one may readily live without. Nozick’s counterexamples to the duty of fair play, Klosko argues, gain a specious force from the fact that they involve discretionary goods (classical music, books) rather than presumptive ones.

The principle of fair play can thus be restated in an unobjectionable way by adding the proviso that the benefits conveyed by cooperation be presumptive public goods whose benefits to the average recipient are clearly worth the burden of cooperatively providing them, and that these burdens be fairly distributed. Klosko turns to the difficulty that governments typically provide discretionary as well as presumptive goods (he counts transportation, health, recreation, and education among the former; and defense, pollution abatement, and water supply among the latter) and claim to impose duties of obedience that are indifferent to the distinction. His answer is to argue that state delivery of a package of discretionary and presumptive goods throws upon the beneficiary the burden of showing that his burden of cooperating exceeds his total (not marginal) benefits from the cooperative scheme or that the scheme is unfair.

Klosko’s effort has been criticized by John Simmons. Simmons’s view is that fair play duties only bind participants in cooperative schemes, rather than mere beneficiaries. Klosko’s presumptive goods are, at best, proxies for participation. Moreover, Klosko’s "burden-shifting" move from a duty to contribute to the provision of presumptive goods, to a duty to contribute to the provision of a "package" combining presumptive and discretionary goods, to a presumptive duty to contribute to the provision of discretionary goods in the package, is (rightly) exposed by Simmons as transparently fallacious.

Simmons could simply be challenged on the claim that the appeal of the idea of presumptive goods derives entirely from its probabilistic connection with consent-like notions like participation (Simmons) and acceptance (Rawls). Simmons’s own view is that participation—in the sense required to generate fair-play duties—does not collapse into consent, but his account of the difference is ephemeral. Acceptance is, for Simmons, one but not necessarily the only way to become a participant. On his account, a benefit is accepted by actor A just in case A, with knowledge of the cooperative debt attached, either actively seeks and gets the benefit or willingly takes the benefit with the belief that the benefit net of the cooperative debt is worth it to A. Klosko might plausibly counter that there are nonexcludable benefit cases in which a fair play duty arises despite the absence of acceptance. One case that Klosko describes is that of a society under siege. Collective defense is not futile, but requires universal or near universal cooperation. Suppose a certain actor A believes that he is particularly likely to be killed if the besieging power is resisted even though resistance is otherwise likely to succeed. On Klosko’s view, this A has a fair play duty to do his share, even to serve in the vanguard if ordered; while on Simmons’s view A has no fair play duty to serve—the benefits of resistance are merely "thrust upon" him. Here, I think, intuition is likely to side with Klosko rather than Simmons.

Simmons claims that few of the goods furnished by governments are presumptive in Klosko’s sense, suggesting that this throws the weight of Klosko’s argument for general political obligation (rather than a minimal, Nozickian, nightwatchman state) onto the (flawed) argument that individuals who receive presumptive goods carry a burden of showing they have no duty to contribute to discretionary goods thrown into the package. Simmons may be right about Klosko’s dialectical predicament, but it is to some degree one of Klosko’s own making, and one that he might be able to avoid. The problem is his sketchy, inconsistent, and (nonetheless) crabbed account of presumptive goods. Consider road building—not a presumptive but a discretionary good for Klosko, but why? The answer mustn’t be, because moving around by road isn’t necessary—this can’t be the answer because being free of foreign domination and living in orderly rather than chaotic circumstances aren’t necessary either. The dialectic here seems to track that sparked by Rawls’s notion of primary goods. Objectors to counting good X as presumptive (or primary) will point out that some people would prefer to do without X. Defenders will reply either that: (a) such people are too odd to take seriously; or (b) that X, though perhaps not wanted by all, is a means to Y, which is; or (c) in any case, such people can easily foreswear X and be none the worse off. This was Rawls’s way with wealth as a primary good: if you don’t want it, you can spend it or give it away.

Keeping the theory of the nonpublic good "thin" seems easy because unwanted excludable presumptive (or primary) goods can in principle simply be rejected. Presumptive public goods take us down a different path. We have to pay for them but we can’t give them away—we are taxed to pay for armies but the direct and indirect benefits of having armies to defend us are not ones we can cash in or renounce. But, of course, this is true of having roads at our disposal as well. Candidate presumptive public goods are likelier to incur objections precisely because everyone is stuck both with the real cost as well as the (perhaps dubious) benefit of them. This perhaps accounts for Klosko’s trepidation and Simmons’s certainty that few of the goods of government are presumptive. But Klosko could bite this bullet and allow a robust category of presumptive public goods to include transportation and public health measures, without allowing it to engulf excludable goods like recreation. The borderline cases will be such things as education, individualized health care, and the social safety net. These benefits might be set up along excludable lines but would then involve spillover benefits that are nonexcludable. However the boundary is finally drawn, its compass will be generous enough to give Klosko the option of simply denying that there is a fair play duty to cooperate in providing genuinely discretionary goods. Political obligation, on fair play grounds, will not then extend as far as some legislation would extend it, but it is not wildly unsatisfactory to take the position that fair play requires us to help pay, for example, for highway construction and maintenance but not for highway beautification—regardless of what we happen to value.

Consent theorists will have noticed a parallel here to the ascent many of them have been forced to make from actual, to tacit, to hypothetical consent to obey the law. The ascent is made, similarly, for the sake of generality: not all explicitly assent to be governed; more perhaps, but still not all, tacitly do so; but all reasonable people would (allegedly) do so if fully informed, free of bias, etc. So too Klosko, the fair play theorist, is impelled to ascend from public goods actually desired, to goods presumptively desired, to goods no reasonable person would forego. The consent theorist might well demand: Why ask what goods a reasonable person would desire by way of asking what burdens may fairly be imposed upon her? Why not ask straight away what system of benefits and burdens would a reasonable person assent to? The fair play theorist, in other words, is open to the charge that he is attempting to localize what is a necessarily global contractualist project. Political obligation should not be expected to emerge until the entire scheme is opened to view, at which point concerns about fairness have simply become part of a hypothetical citizen’s assessment of the moral demands the scheme may make of her. Fairness loses its foundational role.

In subsequent work, Klosko acknowledges the limitations of his initial fair-play account. To address the discretionary goods problem, he deploys, instead, what he terms an "indirect" argument. This argument stresses the fact that discretionary goods are often practically, if only "indirectly," necessary to the provision of presumptive goods. Klosko’s suggestion encompasses two kinds of case. The first has to do with the choice of means, as where, for example, the presumptive good of national defense is supplied by building a Maginot Line. As such, the Maginot Line is not a presumptive good because an alternative means might serve as well (or better, as events proved). The second has to do with discretionary goods that facilitate the provision of a presumptive good, but are not themselves means of provision. For example, a road system, though a discretionary good, facilitates defense, although it is not a means of defense in the way that, for example, armored vehicles are a means of defense. Either sort of indirect relation to a presumptive good suffices for a discretionary good to be regarded as part of an "indivisible benefit package."

If fair, democratic, decision procedures lead to the provision of an indivisible benefit package, Klosko argues, then a presumption favoring outcomes of such decision procedures (rather than the earlier-invoked presumptive goodness of the package itself) suffices to impose a duty, even upon dissenters, to contribute. Goods—like social insurance, cultural and recreational services, and certain conservation measures— that cannot be defended as bundled into an indivisible benefit package, will, Klosko concedes, have to be defended by appeal to other moral principles, such as a natural duty of justice.

The appeal to a natural duty to support just institutions is another path that has been explored to circumvent the limitations of consent theories. This was the tack taken by Rawls in A Theory of Justice (1971), after he perceived shortcomings in the fair-play account that he had given in his 1964 article, "Legal Obligation and the Duty of Fair Play." The advantage of the natural duty account is that it avoids conditioning the duty to obey the law upon any prior conduct or circumstance of the actor, such as consent or receipt or acceptance of benefits. Such conditions are troublesome, as we have seen, for, while the citizenry of a given state may largely satisfy them, they are not likely to be generally satisfied in a real jurisdiction, nor, for that matter, does the state’s claim to authority acknowledge the need to satisfy them at all. But, despite this promised advantage, the natural duty account has itself not escaped objection. Simon Cushing’s contribution to this Newsletter presents a general case against Rawls’s appeal to natural duty. In the remainder of this Introduction I will focus on what could be called the "particularity" or "special allegiance" objection to the natural duty theory, and Jeremy Waldron’s effort to address it.

The particularity objection was raised by Simmons in his 1979 book on political obligation and by Ronald Dworkin, in 1986, in Law’s Empire. The objection goes like this: a natural duty to support just institutions is one that everyone—wherever and however situated—is supposed to owe toward existing, sufficiently just, institutions—wherever and however situated. But the fact is that people believe they have special ties to their own governments (however flawed) and not to other governments (however just). A natural duty theory cannot dismiss this attitude without doing violence to what is a settled conviction of many reflective and reasonable people, and therefore the theory must instead somehow reconstruct it. The most promising lines of reconstruction for the natural duty theorist, however, are ones that seem to invoke things like consent, or receipt of benefits—invocations that would lead us back to the consent and fair play theories whose limitations the appeal to natural duty was supposed to avoid. The detour along the path of natural duty, the objection concludes, is a dead end.

Waldron’s answer begins by noting a qualification in Rawls’s statement of the natural duty, and a related objection arising from that qualification. Rawls’s duty to support and comply with just institutions is restricted to those that "apply to us," and the objection is that no sense can be given to the restriction without returning to ideas of consent or fair play. (The companion duty to help create just institutions is not qualified in this way, but is instead qualified by the condition that the cost to the actor be minimal.) Waldron notes that all will agree that there is at least some sort of duty not to undermine just institutions existing elsewhere, and argues that theories of "acquired" obligation (including consent and fair play theories) cannot well explain why this should be so. French officials who sought to frustrate due process in New Zealand’s investigation of the "Rainbow Warrior" affair, for example, acted contrary to a duty that could hardly be characterized as self-imposed, or as flowing from some prior undertaking.

Consent and fair play theorists may well grant that both the Frenchman and the New Zealander are duty-bound not to undermine the just laws of New Zealand; they may (and, if Waldron is right, must) concede the existence of what, for lack of a better term, might be called the (undifferentiated) natural duty not to undermine just institutions; their objection is not that no such duty exists, but that it cannot capture what is special about the relation between a citizen and the institutions of her own government. Accordingly, Waldron’s next step is to explore the resources available to the natural duty theorist by which to explain what is distinctive about the New Zealander’s relation to the law of New Zealand.

Waldron’s account proceeds in three stages. The idea is to distinguish, at the first stage, between "range-limited" and range-unlimited principles of justice, and between two categories of person—insiders and outsiders—definable with reference to range-limited principles. Someone named "Hobbes," for example, might justly distribute cake in equal shares among his own children without intending to include neighborhood child Calvin. Calvin is an outsider with respect to the distributive principle Hobbes intends to follow because Calvin doesn’t fall within the class of persons "referred to in the fullest statement" of the principle, and to whom its requirements are intended to apply.

At the second stage, Waldron extends the insider/outsider distinction to the administration of range-limited principles of justice. Because principles of justice aren’t self-administering, institutions are necessary and the question becomes: What demands must be made of insiders and of outsiders in order for a range-limited principle of justice to be put into effect? Waldron lists three: (1) insiders must accept the demand of the relevant range-limited principle; (2) insiders must accept the demand that they accept the administering institution’s administration of the principle; and (3) insiders and outsiders must refrain from undermining the administering institution. Waldron claims that his account of these demands makes sense of the Rawlsian proviso that an actor’s duty to support just institutions is limited to those that "apply to him," and at the same time explains "much of" the specialness of an actor’s relationship to his own national institutions—conceding that there is a somewhat atavistic residue of "patriotic affect" that escapes, but which escapes the consent and fair play accounts as well.

I now want to concentrate on Waldron’s treatment of John Simmons’s objection to the natural duty as Rawls formulated it, and what that treatment exposes about the insider/outsider distinction upon which Waldron relies. Simmons’s objection envisaged a Montana-based society for the advancement of philosophers, justly constituted, which presumed to levy Simmons for a contribution to its efforts. Although the institution is supposed to be just, and its activities to "apply to" Simmons, he rejects the idea that he might be bound in duty to contribute: "People cannot simply force institutions on me, no matter how just, and force on me a moral bond to do my part." (Moral Principles and Political Obligations, 148). Waldron counters by pointing out that the example trades upon an ambiguity in the supposition that the philosopher’s society is just: that might mean that it is justly run, as an internal, procedural matter; or it might mean that it pursues substantive justice. Alter the example, so that the aim is not provision for philosophers but provision for the homeless; this makes it clearer that the institution is in service of substantive justice, in which case it is far from clear that the very existence of the institution is incapable of thrusting upon the rest of us a duty of noninterference, even support.

As in the case of Klosko’s critique of Nozick’s counterexamples to the duty of fair play, the importance of the end served by an enterprise may have a decisive effect on our intuitions about how its existence affects our moral situation. Because the pursuit of justice is very important, in fact a "moral imperative," Waldron’s advice is that the point has been reached at which "the theorist of natural duty must stop treating [the] question, ‘Can an organization simply impose itself on us, morally . . . ?’ as an objection and simply insist that the answer is yes." ("Special Ties and Natural Duties," 27) In the specific case of the Montanans for the homeless, if the organization is correct in believing that more generous provision for the homeless is a matter of justice, not mere charity, and if it is both effective and not in competition with any more effective organization pursuing this end, then Simmons (or any of us) might (Waldron hedges, for reasons to be explored in a moment) have a duty to pay what the Montanans have determined to be our fair share.

What is tantalizingly unclear about Waldron’s example is whether the homeless with whom the Montanans are concerned are supposed to be homeless Montanans, or the homeless more generally, perhaps even the homeless of the world. If only homeless Montanans are concerned, then it would be open to Simmons to regard himself as an outsider with respect to an institution administering a range-limited principle of distributive justice among Montanans, and as an outsider Simmons’s duty is simply one to "refrain from attacking or sabotaging" the organization, rather than a duty to "accept the supervision" of the group—although of course Montanans generally, as insiders, would be subject to the latter duty, if Waldron’s important provisos of effectiveness and legitimacy are also satisfied.

Waldron’s "effectiveness" and "legitimacy" provisos do not require the consent of those subject to supervision, but are indirectly related to consent. Effectiveness means that the organization is capable of doing the justice it purports to do, and this will often depend upon whether sufficiently many are sufficiently disposed to accept its supervision to make it reasonable to think that it can do the job. Legitimacy comes into play as a separate proviso because of the problems generated by the existence of multiple organizations purporting to do justice over a given territory. To escape a Hobbesian state of nature, we must have institutions, but to escape the Nozickian nightmare of rival, contending, agencies of justice, legitimacy must be a unique title within a territory. Which one among equivalently just regimes shall it be, if there is a plurality? Either the more powerful or the more popular may be the more salient; and salience, for Waldron’s purposes, is decisive as to which is to be regarded as the legitimate one.

Waldron’s position, in summary, is that "an organization that is just, effective, and legitimate (in the sense of being singled out as the salient organization for this territory) has eo ipso a claim on our allegiance." ("Special Ties," 27) How this works out in cases will depend upon their particulars. In the Montana case, even residents of Montana might doubt the effectiveness and salience of a rump organization for the (Montana) homeless. If the scope of the principle of justice that the group purports to administer is opened up to encompass the homeless everywhere, Simmons would be unable to excuse himself from contributing on the ground that he is an outsider with respect to the scheme, though he would be entitled to harbor graver doubts about the effectiveness and salience of the organization. Hence, Waldron’s tentative verdict that Simmons "might" have a duty to pay.

Notes

1. The relevant citations for Klosko, and other scholars discussed subsequently, are listed in the selective bibliography below.

2. Narveson contends that it is an error to interpret utilitarianism as requiring that people be made for the sake of happiness, rather than happiness for people. See, e.g., Narveson 1973.

3. Cf. Waldron, "Special Ties," 27, quoted earlier. The italicized passage is the addition I’m recommending to Waldron’s original language.

Partial Bibliography

Fair Play and the "Acceptance" Problem

George Klosko, "The Principle of Fairness and Political Obligation" Ethics 97 (1987): 353–62.

George Klosko, "Presumptive Benefit, Fairness, and Political Obligation," Philosophy and Public Affairs 16 (1987): 241–59.

George Klosko, "The Obligation to Contribute to Discretionary Public Goods," Political Studies 38 (1990): 196–214.

George Klosko, The Principle of Fairness and Political Obligation (Lanham, Md.: Rowman & Littlefield, 1992).

Jan Narveson, "Moral Problems of Population," The Monist 57 (l973): 62–86. Reprinted in M. Bayles, Ethics and Population (Piscataway, N.J., l976).

Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 90–95.

John Rawls, "Legal Obligation and the Duty of Fair Play," in Sidney Hook, ed., Law and Philosophy (New York: NYU Press, 1964).

John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press, 1971),pp. 108–14, 335–50.

A. John Simmons, "The Anarchist Position: A Reply to Klosko and Senor," Philosophy and Public Affairs 16 (1987): 269–79.

A. John Simmons, On the Edge of Anarchy (Princeton: Princeton University Press, 1993), pp. 257–60.

A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979), pp. 101–42.

Natural Duty and the "Particularity" Objection