Thursday, September 24, 2009

Political & Legal Obligation: An Introduction — Part 1

This is the first of three parts:

‘There are at least three central areas of disagreement in attempts to solve the problem [of political obligation], as a result of the various answers which have been given to three basic questions: To whom is this obligation owed? What is the obligation an obligation to do? How does one come to be under the obligation?’—A. John Simmons

‘The two most fundamental questions of political theory are: (1) Under what conditions, if any, may those in power claim to rule as a matter of moral right? This I shall call the question of political authority, and (2) Under what conditions, if any, may the citizen lie under a prima facie moral obligation to obey those who claim political authority? This I shall call the question of political obligation.’—Rolf Sartorius

‘Many people feel…that they are tied in a special way to their government, not just by “bonds of affection,” but by moral bonds’—A. John Simmons

‘Political obligation is closely linked with the obligation to obey some legitimate political authority, and insofar as that authority operates through laws, with the obligation to obey the law.’—A. John Simmons

‘Obligations are limitations on our freedom, impositions on our will, which must be discharged regardless of our inclinations.’—A. John Simmons

‘…[W]e can make sense of the idea of a legitimate political authority without positing the existence of a general duty to obey the law.’—William A. Edmundson

‘Philosophers have long understood the duty to obey the law to be a prima facie duty rather than an absolute duty…. A prima facie duty is, one might say, a candidate duty, one that will in fact be one’s duty unless a conflicting duty or other moral consideration outweighs it.’—William A. Edmundson

‘Thus there are at least three different positions which might be taken concerning the character of the obligation to obey the law or the rightness of disobedience to the law. They are (1) One has an absolute obligation to obey the law; disobedience is never justified. (2) One has an obligation to obey the law but this obligation can be overridden by conflicting obligations; disobedience can be justified, but only by the presence of outweighing circumstances. (3) One does not have a special obligation to obey the law, but it is in fact usually obligatory, on other grounds, to do so; disobedience to law often does not turn out to be unjustified.’—Richard A. Wasserstrom

‘Whatever else they do, all legal systems recognize, create, vary and enforce obligations. This is no accident: obligations are central to the social role of law and explaining them is necessary to an understanding of law’s authority and, therefore its nature. Not only are these obligations in the law, there are also obligations to the law. Historically, most philosophers agree that these include a moral obligation to obey, or what is usually called “political obligation.” Voluntarists maintained that this requires something like a voluntary subjection to law’s rule, for example, through consent. Non-voluntarists denied this, insisting that the value of a just and effective legal system is itself sufficient to validate law’s claims.’—Leslie Green

A moral obligation…
1. is a moral requirement generated by the performance of some voluntary act (or omission); furthermore, unlike duties, obligations require special performance
2. is owed by a specific person (the “obligor”) to a specific person(s) (the “obligee[s[“), whereas duties are owed by all persons to all others
3. simultaneously generates a correlative right: ‘By incurring an obligation to do A, the obligor creates for the obligee a special right to the obligor’s performance of A.
(after A. John Simmons)

‘Obligations correlate with the moral version of what are called in legal jargon “rights in personam.”’ Duties ‘correlate with “rights in rem,” that is, rights which are held against all other people.’—A. John Simmons

We might speak of four kinds or principles of obligation: the principles of ‘fidelity’ and ‘consent’ (1 & 2), which are obligations deliberately undertaken, like promising or consenting; and the principles of ‘fair play’ and ‘gratitude’ (3 & 4) or principles of reciprocation, being understood as obligations generated by the receipt or acceptance of benefits. (after A. John Simmons)

‘The mere fact that an institution (or set of institutions) exists, and that its rules apply to me, will not bind me to that institution. If I am morally bound to obey the law or to be a good citizen, the ground of this bond will be independent of the legal and political institutions in question.’—A. John Simmons

‘…[T]he first recorded argument for political obligation, that of Socrates in Plato’s Crito, suggested at least three distinct ground for political obligations: that the State was a good State and thus owed obedience, that the State was a benefactor to be repaid, and that Socrates had tacitly consented to the State’s authority over him and so became bound.’—A. John Simmons

‘Consent theory has provided us with a more intuitively appealing account of political obligation that any other tradition in modern political theory. At least since Locke’s impassioned defense of the natural freedom of men born into nonnatural states, the doctrine of personal consent has dominated both ordinary and philosophical thinking on the subject of our political bonds. The heart of this doctrine is the claim that no man is obligated to support or comply with any political power unless he has personally consented to its authority over him; the classic formulation of the doctrine appears in Locke’s Second Treatise of Government. There is no denying the attractiveness of personal consent (and of the parallel thesis that no government is legitimate which governs without the consent of the governed).’—A. John Simmons

‘Consent theories of political obligation are the foundation from which the political works of Hobbes, Locke and Rousseau were constructed. Consent theory characteristically advances four central theses:
1. Man is naturally free. This is normally a claim about a “natural right” man is supposed to possess. In calling a right “natural,” we mean, first, that it is possessed by all men (or “all rational agents,” or “all agents capable of choice”) solely by virtue of their humanity (or “rational agency” or “power of choice”). And second, a “natural right” is not the product of some voluntary act, as other sorts of rights are. The natural right in question here is the “natural right of freedom”….
2. Man gives up his natural freedom (and is bound by obligations) only by voluntarily giving a “clear sign” that he desires to do so. "For while the individual gives up his natural freedom (to some extent) in authorizing the government to direct his actions, he allegedly both gains in the ‘new freedom’ available under the rule of law, and also, since his authorization ‘makes the government’s acts his own,’ does not really lose any freedom of action to begin with."
3. The method of consent protects the citizen from injury by the state. According to one version of the claim: "the method of consent guarantees that a government which has been consented to can never (logically) injure (in the classical sense of ‘wrong’) the citizen, provided it is acting ‘intra vires’ (within the terms of the citizen’s consent). Consent theorists also recognize limits on the sanctity of personal consent, for example, those captured in the doctrine that certain rights are "inalienable."
4. The state is an instrument for serving the interests of its citizens. The consent theorists demonstrate a preference for individual commitment over unavoidable benefits or protection of interests. [….] Thus, consent theory maximizes protection of the individual’s freedom to choose where his political allegiance will lie. Political obligations cannot be inherited or unwittingly acquired. And a deliberate undertaking, of which promising is the paradigm, is the only ground of obligation which allows this feature to be present in a theory of political obligation.’—A. John Simmons

Implied consent might be construed in at least three different ways:
1. ‘An act may be such that it leads us to conclude that the actor was in an appropriate frame of mind to, or had attitudes which would lead him to, consent if suitable conditions arose. This conclusion may be expressed by the conditional: if he had been asked to (or if an appropriate situation had otherwise arisen), he would have consented.’
2. ‘An act may be such that it “commits” the actor to consenting.’
3. ‘An act may be such that it binds the actor morally to the same performance to which he would be bound if he had in fact consented. I may do something which is not itself and act of consent, but which nonetheless binds me as if I had consented; after performing the act, it would be wrong (ceteris paribus) for me not to do those things which my actual consent would have bound me to do.’—A. John Simmons

‘The problem is that consent, whether express or tacit, must be fully voluntary in order to bind. Hume was surely correct when he remarked that it was simply not a live option for the average citizen to leave the country of his birth and native language and to abandon his friends, family, employment, and cultural ties. As an account of the putative foundation of political obligation it thus seems to me that any theory of an implied social contract must fail.’—Rolf Sartorius

‘Almost every member of every community that has existed on the face of the earth might reasonably say, “I know of no such contract as you describe; I never entered into any such engagements; I never promised to obey; it must therefore be an iniquitous imposition to call upon me to do something under pretense of a promise I never made.” The reason a man lives under any particular government is partly necessity; he cannot easily avoid living under some government, and it is often scarcely in his power to abandon the country in which he was born: it is also partly a choice of evils; no man can be said, in his case, to enjoy that freedom which is essential to the forming of a contract, unless it could be shown that he had a power of instituting, somewhere, a government adapted to his own conceptions.—Government in reality, as has abundantly appeared, is a question of force, and not of consent. It is desirable that a government should be made as agreeable as possible to the ideas and inclinations of its subjects; and that they should be consulted, as extensively as may be, respecting its construction and regulations. But, at last, the best constituted government that can be formed, particularly for a large community, will contain many provisions that, far from having obtained the consent of all its members, encounter even in their outset a strenuous, though ineffectual, opposition.—From the whole of these reasonings it appears that, in those measures which have the concurrence of my judgement, I may reasonably be expected to co-operate with willingness and zeal; but, for the rest, my only justifiable ground of obedience is that I will not disturb the repose of the community, or that I do not perceive the question to be of sufficient magnitude to authorize me in incurring the penalty.’—William Godwin

‘It has appeared that the most essential of those rights which constitute the peculiar sphere appropriate to each individual, and the right upon which every other depends as its basis, is the right to private judgement. [….] To a rational being there can be but one rule of conduct, justice, and one mode of ascertaining that rule, the exercise of his understanding. [….] The universal exercise of private judgement is a doctrine so unspeakably beautiful that the true politician will certainly feel infinite reluctance in admitting the idea of interfering with it.’—William Godwin

A. John Simmons concludes his powerfully argued and influential book, Moral Principles and Political Obligations (1979), with the claim that ‘Most citizens have neither political obligations nor “particularized” political duties, and they will continue to be free of such bonds barring changes in political structures and conventions.’ And yet, he argues, we still have a duty to support just government (as well as a duty to fight injustice). Moreover, the ‘absence of political obligations in a political community…will not entail that disobedience or revolution is justified.’

Please Note: References and Further Reading will be appended to Part 3.


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