Political & Legal Obligation: An Introduction — Part 3
But the contract, on which government is founded, is said to be the original contract; and consequently may be supposed too old to fall under the knowledge of the present generation. If the agreement, by which savage men first associated and conjoined their force, be here meant, this is acknowledged to be real; but being so ancient, and being obliterated by a thousand changes of government and princes, it cannot now be supposed to retain any authority. If we would say any thing to the purpose, we must assert, that every particular government, which is lawful, and which imposes any duty of allegiance on the subject, was, at first, founded on consent and a voluntary compact. But besides that this supposes the consent of the fathers to bind the children, even to the most remote generations, (which republican writers will never allow) besides this, I say, it is not justified by history or experience, in any age or country of the world.Almost all the governments, which exist at present, or of which there remains any record in story, have been founded originally, either on usurpation or conquest, or both, without any pretence of a fair consent, or voluntary subjection of the people. When an artful and bold man is placed at the head of an army or faction, it is often easy for him, by employing, sometimes violence, sometimes false pretences, to establish his dominion over a people a hundred times more numerous than his partizans. He allows no such open communication, that his enemies can know, with certainty, their number or force. He gives them no leisure to assemble together in a body to oppose him. Even all those, who are the instruments of his usurpation, may wish his fall; but their ignorance of each other's intention keeps them in awe, and is the sole cause of his security. By such arts as these, many governments have been established; and this is all the original contract, which they have to boast of.
The face of the earth is continually changing, by the encrease of small kingdoms into great empires, by the dissolution of great empires into smaller kingdoms, by the planting of colonies, by the migration of tribes. Is there any thing discoverable in all these events, but force and violence? Where is the mutual agreement or voluntary association so much talked of? [….]
It is in vain to say, that all governments are or should be, at first, founded on popular consent, as much as the necessity of human affairs will admit. This favours entirely my pretension. I maintain, that human affairs will never admit of this consent; seldom of the appearance of it. But that conquest or usurpation, that is, in plain terms, force, by dissolving the ancient governments, is the origin of almost all the new ones, which were ever established in the world. And that in the few cases, where consent may seem to have taken place, it was commonly so irregular, so confined, or so much intermixed either with fraud or violence, that it cannot have any great authority.
My intention here is not to exclude the consent of the people from being one just foundation of government where it has place. It is surely the best and most sacred of any. I only pretend, that it has very seldom had place in any degree, and never almost in its full extent. And that therefore some other foundation of government must also be admitted.—David Hume, “Of the Original Contract”
1) ‘A state is legitimate only if it claims to impose on its subjects a general, at least prima facie, duty to obey its law and its subjects have a general prima facie duty not to interfere with their enforcement.
2) There may be no general, even prima facie duty to obey the laws of a state, not even those of a just state; but there is a general prima facie duty not to interfere with the administration of the laws of a just state.
3) Legitimate states are not only possible, but actual.’—William A. Edmundson
‘Law changes our moral situation in at least three ways: (1) Legal judgments and enactments can alter the balance of reasons and thereby create new moral duties; (2) legal judgments and enactments provide a mechanism for enforcing moral duties, whether preexisting or flowing from legal acts; and (3) sufficiently just states impose a general duty not to interfere with their administrative prerogatives. These powers are enough to constitute a robust conception of legitimate political authority. This is the only sense in which political obligation and legitimacy need to be correlated.’—William A. Edmundson
‘In fact, because there is a degree of parallelism between political and epistemic authority, a legitimate political authority gives citizens good reasons to believe they ought to obey its laws, just as legitimate scientific authorities give the laity good reasons to believe what they say about the workings of the world. [….] Good reasons needn’t be sufficient or conclusive reasons, whether the issue is scientific or political authority. What those good reasons are, in the case of political authority, is not always made vividly clear. In many instances, the best that can be said of a law that is a legislative compromise (as most are) is that important but conflicting ends and interests were weighed and balanced, and general conformity with the means specified by the law in question is better than the alternatives (including the alternative of doing nothing).’—William A. Edmundson
‘Anyone who claims that there are actions that are both illegal and justified surely need not be thereby asserting that it is right generally to disobey all laws or even any particular law. It is surely not inconsistent to assert both that indiscriminate disobedience is indefensible and that discriminate disobedience is morally right and proper conduct. Nor, analogously, is it at all evident that a person who claims to be justified in performing an illegal action is thereby committed to giving endorsement to the principle that the entire legal system ought to be overthrown or renounced. At a minimum, therefore, the appeal to “But what if everyone did that?” cannot by itself support the claim that one has an absolute obligation to obey the law—that disobeying the law can never be truly justified.’—Richard A. Wasserstrom
‘We should comply with and do our part in just and efficient social arrangements for at least two reasons: first of all, we have a natural duty not to oppose the establishment of just and efficient institutions (when they do not yet exist); and second, assuming that we have knowingly accepted the benefits of these institutions and plan to continue to do so, and that we have encouraged and expect others to do their part, we also have an obligation to do our share when, as the arrangement requires, it comes our turn. Thus, we often have both a natural duty as well as an obligation to support just and efficient institutions, the obligation arising from our voluntary acts while the duty does not.’—John Rawls
‘…[T]he principles to which social arrangements must conform, and in particular the principles of justice, are those which free and rational men would agree to in an original position of equal liberty, and similarly, the principles which govern men’s relation to institutions and which define their natural duties and obligations are the principles to which they would consent when so situated. It should be noted straightway that in this interpretation of the contract theory the principles of justice are understood as the outcome of a hypothetical agreement. They are principles which would be agreed to if the situation of the original position were to arise.’—John Rawls
‘…[E]ven under just constitutions unjust laws may be passed and unjust policies enforced. Some form of the majority principle is necessary but the majority may be mistaken, more or less willfully, in what it legislates. In agreeing to a democratic constitution (as an instance of imperfect procedural justice) one accepts at the same time the principles of majority rule. Assuming that the constitution is just and that we have accepted and plan to continue to accept its benefits, we then have both an obligation and a natural duty (and in any case the duty) to comply with what the majority enacts even though it may be unjust. In this way we become bound to follow unjust laws, not always of course, but provided the injustice does not exceed certain limits. [….] The right to make laws does not guarantee that the decision is rightly made, and that while the citizen submits in his conduct to the judgment of democratic authority, he does not submit his judgment to it. And if in his judgment the enactments of the majority exceed certain bounds of injustice, the citizen may consider civil disobedience.’ Civil disobedience is understood to be ‘public, nonviolent, and conscientious acts contrary to law usually done with the intent to bring about a change in the policies or laws of the government. [….] In this way it manifests a respect for legal procedures. Civil disobedience expresses disobedience to law within the limits of fidelity to law and this feature of it helps to establish in the eyes of the majority that it is indeed conscientious and sincere, that it really is meant to address their sense of injustice. Being completely open about one’s acts and being willing to accept the legal consequences of one’s conduct is a bond given to make good one’s sincerity, for that one’s deeds are conscientious is not easy to demonstrate to another or even before oneself.’—John Rawls
‘Morality is that system of conduct which is determined by a consideration of the greatest general good: he is entitled to the highest moral approbation whose conduct is, in the greatest number of instances, or in the most momentous instances, governed by views of benevolence, and made subservient to public utility. In like manner the only regulations which any political authority can be justly entitled to enforce are such as are best adapted to public utility. Consequently, just political regulations are nothing more than a certain select part of moral law. The supreme power in a state ought not, in the strictest sense, to require anything of its members that an understanding sufficiently enlightened would not prescribe without such interference.’—William Godwin
‘…[A] man may be right to comply with the commands of the government under whose de facto authority he finds himself. But none of this settles the question of legitimate authority. This is a matter of the right to command, and of the correlative obligation to obey the person who issues the command. [….] Obedience is not a matter of doing what someone tells you to do. It is a matter of doing what he tells you to do because he tells you to do it. Legitimate, or de jure, authority thus concerns the grounds and sources of moral obligation.’—Robert Paul Wolff
‘The defining mark of the state is authority, the right to rule. The primary obligation of man is autonomy, the refusal to be ruled. It would seem, then, that there can be no resolution of the conflict between the autonomy of the individual and the putative autonomy of the state. In so far as a man fulfills his obligation to make himself the author of his decisions, he will resist the state’s claim to have authority over him. That is to say, he will deny that he has a duty to obey the laws of the state simply because they are the laws. In that sense, it would seem that anarchism is the only political doctrine consistent with the virtue of autonomy. Now, of course, an anarchist may grant the necessity of complying with the law under certain circumstances or for the time being. He may even doubt that there is any real prospect of eliminating the state as a human institution. But he will never view the commands of the state as legitimate, as having a binding moral force.’—Robert Paul Wolff
‘…[A]n 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. Though popular consent may be implicated in its justice, its effectiveness, or its legitimacy, the moral requirement that we support and obey such an organization is not itself based on any promise that we have made.’—Jeremy Waldron
‘It is the contention that the idea of individual self-development is contradicted by the idea of government. This is so, it is held, because government is coercive power (perhaps “the monopoly of legitimate coercive power”) over individuals, whereas self-development implies the voluntary initiative of individuals and therefore cannot be coerced. But this argument mistakenly supposes that whatever characterizes self-development must likewise characterize its conditions. To say that self-development is voluntary is to say that it is optional. If it has a necessary condition, then self-development is an option only when these conditions prevail. And this is to say that for the option of self-development to exist, supply of its necessary conditions is mandatory. To be sure, the supply of the necessary conditions that are to be self-supplied by individuals fall within the option of self-development and is not mandatory. But conditions that must be furnished to individuals by external agencies do not partake of the voluntary character of self-development. Recognition that their presence is mandatory commensurates the provision of them with the coercive nature of government, while respecting the voluntary nature of individual self-development: individuals remain free to avail themselves, or not, of the provided conditions. It is mandatory, of course, that individuals contribute (notably through taxes) to the government that provides the necessary conditions that individuals cannot self-supply, but this is a different issue, namely the balancing of liberty with autonomy, where “liberty” is understood “negatively,” as freedom from interference, but “autonomy,” as “self-direction,” entails positive conditions of enablement.’—David L. Norton
2) There may be no general, even prima facie duty to obey the laws of a state, not even those of a just state; but there is a general prima facie duty not to interfere with the administration of the laws of a just state.
3) Legitimate states are not only possible, but actual.’—William A. Edmundson
‘Law changes our moral situation in at least three ways: (1) Legal judgments and enactments can alter the balance of reasons and thereby create new moral duties; (2) legal judgments and enactments provide a mechanism for enforcing moral duties, whether preexisting or flowing from legal acts; and (3) sufficiently just states impose a general duty not to interfere with their administrative prerogatives. These powers are enough to constitute a robust conception of legitimate political authority. This is the only sense in which political obligation and legitimacy need to be correlated.’—William A. Edmundson
‘In fact, because there is a degree of parallelism between political and epistemic authority, a legitimate political authority gives citizens good reasons to believe they ought to obey its laws, just as legitimate scientific authorities give the laity good reasons to believe what they say about the workings of the world. [….] Good reasons needn’t be sufficient or conclusive reasons, whether the issue is scientific or political authority. What those good reasons are, in the case of political authority, is not always made vividly clear. In many instances, the best that can be said of a law that is a legislative compromise (as most are) is that important but conflicting ends and interests were weighed and balanced, and general conformity with the means specified by the law in question is better than the alternatives (including the alternative of doing nothing).’—William A. Edmundson
‘Anyone who claims that there are actions that are both illegal and justified surely need not be thereby asserting that it is right generally to disobey all laws or even any particular law. It is surely not inconsistent to assert both that indiscriminate disobedience is indefensible and that discriminate disobedience is morally right and proper conduct. Nor, analogously, is it at all evident that a person who claims to be justified in performing an illegal action is thereby committed to giving endorsement to the principle that the entire legal system ought to be overthrown or renounced. At a minimum, therefore, the appeal to “But what if everyone did that?” cannot by itself support the claim that one has an absolute obligation to obey the law—that disobeying the law can never be truly justified.’—Richard A. Wasserstrom
‘We should comply with and do our part in just and efficient social arrangements for at least two reasons: first of all, we have a natural duty not to oppose the establishment of just and efficient institutions (when they do not yet exist); and second, assuming that we have knowingly accepted the benefits of these institutions and plan to continue to do so, and that we have encouraged and expect others to do their part, we also have an obligation to do our share when, as the arrangement requires, it comes our turn. Thus, we often have both a natural duty as well as an obligation to support just and efficient institutions, the obligation arising from our voluntary acts while the duty does not.’—John Rawls
‘…[T]he principles to which social arrangements must conform, and in particular the principles of justice, are those which free and rational men would agree to in an original position of equal liberty, and similarly, the principles which govern men’s relation to institutions and which define their natural duties and obligations are the principles to which they would consent when so situated. It should be noted straightway that in this interpretation of the contract theory the principles of justice are understood as the outcome of a hypothetical agreement. They are principles which would be agreed to if the situation of the original position were to arise.’—John Rawls
‘…[E]ven under just constitutions unjust laws may be passed and unjust policies enforced. Some form of the majority principle is necessary but the majority may be mistaken, more or less willfully, in what it legislates. In agreeing to a democratic constitution (as an instance of imperfect procedural justice) one accepts at the same time the principles of majority rule. Assuming that the constitution is just and that we have accepted and plan to continue to accept its benefits, we then have both an obligation and a natural duty (and in any case the duty) to comply with what the majority enacts even though it may be unjust. In this way we become bound to follow unjust laws, not always of course, but provided the injustice does not exceed certain limits. [….] The right to make laws does not guarantee that the decision is rightly made, and that while the citizen submits in his conduct to the judgment of democratic authority, he does not submit his judgment to it. And if in his judgment the enactments of the majority exceed certain bounds of injustice, the citizen may consider civil disobedience.’ Civil disobedience is understood to be ‘public, nonviolent, and conscientious acts contrary to law usually done with the intent to bring about a change in the policies or laws of the government. [….] In this way it manifests a respect for legal procedures. Civil disobedience expresses disobedience to law within the limits of fidelity to law and this feature of it helps to establish in the eyes of the majority that it is indeed conscientious and sincere, that it really is meant to address their sense of injustice. Being completely open about one’s acts and being willing to accept the legal consequences of one’s conduct is a bond given to make good one’s sincerity, for that one’s deeds are conscientious is not easy to demonstrate to another or even before oneself.’—John Rawls
‘Morality is that system of conduct which is determined by a consideration of the greatest general good: he is entitled to the highest moral approbation whose conduct is, in the greatest number of instances, or in the most momentous instances, governed by views of benevolence, and made subservient to public utility. In like manner the only regulations which any political authority can be justly entitled to enforce are such as are best adapted to public utility. Consequently, just political regulations are nothing more than a certain select part of moral law. The supreme power in a state ought not, in the strictest sense, to require anything of its members that an understanding sufficiently enlightened would not prescribe without such interference.’—William Godwin
‘…[A] man may be right to comply with the commands of the government under whose de facto authority he finds himself. But none of this settles the question of legitimate authority. This is a matter of the right to command, and of the correlative obligation to obey the person who issues the command. [….] Obedience is not a matter of doing what someone tells you to do. It is a matter of doing what he tells you to do because he tells you to do it. Legitimate, or de jure, authority thus concerns the grounds and sources of moral obligation.’—Robert Paul Wolff
‘The defining mark of the state is authority, the right to rule. The primary obligation of man is autonomy, the refusal to be ruled. It would seem, then, that there can be no resolution of the conflict between the autonomy of the individual and the putative autonomy of the state. In so far as a man fulfills his obligation to make himself the author of his decisions, he will resist the state’s claim to have authority over him. That is to say, he will deny that he has a duty to obey the laws of the state simply because they are the laws. In that sense, it would seem that anarchism is the only political doctrine consistent with the virtue of autonomy. Now, of course, an anarchist may grant the necessity of complying with the law under certain circumstances or for the time being. He may even doubt that there is any real prospect of eliminating the state as a human institution. But he will never view the commands of the state as legitimate, as having a binding moral force.’—Robert Paul Wolff
‘…[A]n 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. Though popular consent may be implicated in its justice, its effectiveness, or its legitimacy, the moral requirement that we support and obey such an organization is not itself based on any promise that we have made.’—Jeremy Waldron
‘It is the contention that the idea of individual self-development is contradicted by the idea of government. This is so, it is held, because government is coercive power (perhaps “the monopoly of legitimate coercive power”) over individuals, whereas self-development implies the voluntary initiative of individuals and therefore cannot be coerced. But this argument mistakenly supposes that whatever characterizes self-development must likewise characterize its conditions. To say that self-development is voluntary is to say that it is optional. If it has a necessary condition, then self-development is an option only when these conditions prevail. And this is to say that for the option of self-development to exist, supply of its necessary conditions is mandatory. To be sure, the supply of the necessary conditions that are to be self-supplied by individuals fall within the option of self-development and is not mandatory. But conditions that must be furnished to individuals by external agencies do not partake of the voluntary character of self-development. Recognition that their presence is mandatory commensurates the provision of them with the coercive nature of government, while respecting the voluntary nature of individual self-development: individuals remain free to avail themselves, or not, of the provided conditions. It is mandatory, of course, that individuals contribute (notably through taxes) to the government that provides the necessary conditions that individuals cannot self-supply, but this is a different issue, namely the balancing of liberty with autonomy, where “liberty” is understood “negatively,” as freedom from interference, but “autonomy,” as “self-direction,” entails positive conditions of enablement.’—David L. Norton
References and Further Reading:
- Cudd, Ann, “Contractarianism,” The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/fall2008/entries/contractarianism/
- Dagger, Richard, “Political Obligation,” The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/fall2008/entries/politicalobligation/
- Dworkin, Ronald M. Law’s Empire. Cambridge, MA: Harvard University Press, 1986.
- Edmundson, William A. Three Anarchical Fallacies: An Essay on Political Authority. Cambridge, UK: Cambridge University Press, 1998.
- Edmundson, William A., ed. The Duty to Obey the Law: Selected Philosophical Readings. Lanham, MD: Rowman & Littlefield, 1999.
- Estlund, David M. Democratic Authority: A Philosophical Framework. Princeton, NJ: Princeton University Press, 2008.
- Finnis, John. Natural Law and Natural Rights. Oxford, UK: Clarendon Press, 1979.
- Freeman, Samuel. Justice and the Social Contract: Essays on Rawlsian Political Philosophy. New York: Oxford University Press, 2007.
- Gans, Chaim. Philosophical Anarchism and Political Disobedience. Cambridge, UK: Cambridge University Press, 1992.
- Gaus, Gerald F. Justificatory Liberalism: An Essay on Epistemology and Political Theory. New York: Oxford University Press, 1996.
- Godwin, William (Isaac Kramnick, ed.). Enquiry Concerning Political Justice. Middlesex, England: Penguin Books, 1976 (1793).
- Goodin, Robert E. Utilitarianism as a Public Philosophy. Cambridge, UK: Cambridge University Press, 1995.
- Green, Leslie. The Authority of the State. Oxford, UK: Clarendon Press, 1988.
- Green, Leslie. “Legal Obligation and Authority,” The Stanford Encyclopedia of Philosophy (Spring 2004 Edition), Edward N. Zalta (ed.), URL =
http://plato.stanford.edu/archives/spr2004/entries/legal-obligation/ - Greenawalt, Kent. Conflicts of Law and Morality. New York: Oxford University Press, 1987.
- Hardin, Russell. Liberalism, Constitutionalism, and Democracy. New York: Oxford University Press, 1999.
- Hobbes, Thomas (A.P. Martinich, ed.). Leviathan. Peterborough, Ontario: Broadview Press, 2002 (1651).
- Hume, David. “Of the Original Contract,” in Alasdair, MacIntyre, ed., Hume’s Ethical Writings. Notre Dame, IN: University of Notre Dame Press, 1979.
- Klosko, George. The Principle of Fairness and Political Obligation. Lanham, MD: Rowman & Littlefield, 1992.
- Klosko, George. “Presumptive Benefit, Fairness, and Political Obligation,” in Edmundson, ed. (above): 193-212.
- Kraut, Richard. Socrates and the State. Princeton, NJ: Princeton University Press, 1984.
- Lloyd, S.A. Ideals as Interests in Hobbes's Leviathan: The Power of Mind over Matter. Cambridge, UK: Cambridge University Press, 1992.
- Lloyd, S.A. Morality in the Philosophy of Thomas Hobbes: Cases in the Law of Nature. Cambridge, UK: Cambridge University Press, 2009.
- Locke, John (P. Laslett, ed.). Two Treatises of Government. Cambridge, UK: Cambridge University Press, 1988 (3rd ed., 1698).
- Martinich, A.P. Hobbes. New York: Routledge, 2005.
- Norton, David L. Democracy and Moral Development: A Politics of Virtue. Berkeley, CA: University of California Press, 1991.
- Nozick, Robert. Anarchy, State, and Utopia. New York: Basic Books, 1974.
- Pennock, J. Roland and John W. Chapman, eds. Political and Legal Obligation. New York: Atherton Press, 1970/New Brunswick, NJ: Aldine Transaction, 2006.
- Philp, Mark. Godwin’s Political Justice. Ithaca, NY: Cornell University Press, 1986.
- Philp, Mark. “William Godwin,” The Stanford Encyclopedia of Philosophy (Summer 2006 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/sum2006/entries/godwin/
- Rawls, John. A Theory of Justice. Cambridge, MA: Harvard University Press, 1999, revised ed.
- Rawls, John. “The Justification of Civil Disobedience,” in Edmundson, ed. (above): 49-62.
- Rawls, John (Samuel Freeman, ed.). Lectures on the History of Political Philosophy. Cambridge, MA: Belknap Press of Harvard University Press, 2007.
- Raz, Joseph. The Authority of Law. Oxford, UK: Clarendon Press, 1979.
- Raz, Joseph. The Morality of Freedom. Oxford, UK: Clarendon Press, 1986.
- Sartorius, Rolf. “Political Authority and Political Obligation,” in Edmundson, ed. (above): 143-156.
- Shapiro, Ian. “The Social Contract,” in his The Moral Foundations of Politics. New Haven, CT: Yale University Press, 2003: 109-150.
- Simmons, A. John. Moral Principles and Political Obligations. Princeton, NJ: Princeton University Press, 1979.
- Simmons, A. John. Justification and Legitimacy: Essays on Rights and Obligations. Cambridge, UK: Cambridge University Press, 2001.
- Springborg, Patricia, ed. The Cambridge Companion to Hobbes's Leviathan. Cambridge, UK: Cambridge University Press, 2007.
- Waldron, Jeremy. “Special Ties and Natural Duties,” in Edumundson, ed. (above): 271- 299.
- Wellman, Christopher Heath and A. John Simmons. Is There a Duty to Obey the Law? Cambridge, UK: Cambridge University Press, 2005.
- Wasserstrom, Richard A. “The Obligation to Obey the Law,” in Edmundson, ed. (above): 17-47.
- Wolff, Robert Paul. In Defense of Anarchism. Berkeley, CA: University of California Press, 1998 ed.
- Wolff, Robert Paul. “The Conflict between Authority and Autonomy,” in Edmundson, ed. (above): 63-74.
posted by Patrick S. O'Donnell at 8:00 AM
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