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A Quasi-Contract Theory of Political Obligation

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Abstract

Whether there is a general moral obligation to obey the law, often referred to as ‘political obligation’, is an enduring question in contemporary legal and political philosophy. Theories are continually being formulated, criticized, and reformulated as theorists attempt to settle this issue. However, there yet remains no general consensus as to whether any theory successfully answers this question in either the affirmative or the negative. I propose the legal doctrine of quasi-contract as a candidate for making sense of this persistent issue. While the duty to reciprocate and the principle of reasonable expectations each falls short when independently advanced as a theory of political obligation, quasi-contract, which combines reciprocity, reasonable expectations, and additional moral considerations, is able to establish a satisfactory account of political obligation.

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Notes

  1. Shlomi Segall, ‘Unconditional Welfare Benefits and the Principle of Reciprocity’, Politics, Philosophy and Economics 4, no. 3 (October 2005): 336 (emphasis in original).

  2. Lawrence C. Becker, Reciprocity (Chicago: University of Chicago, 1986), 3; Lawrence C. Becker, ‘Reciprocity and Social Obligation’, Pacific Philosophical Quarterly 61, no. 4 (1980): 414; David Schmidtz, Elements of Justice (New York: Cambridge, 2006), 81.

  3. Fred R. Berger, ‘Gratitude’, Ethics 85, no. 4 (July 1975): 299; Claudia Card, ‘Gratitude and Obligation’, American Philosophical Quarterly 25, no. 2 (April 1988): 117.

  4. Berger, ‘Gratitude’, 300–301.

  5. Becker, Reciprocity, 3.

  6. Segall, ‘Welfare Benefits’, 336.

  7. George Klosko dissents on this matter, holding that all reciprocal obligations can be traced to other, narrower moral principles, such as fairness. George Klosko, Political Obligations (New York: Oxford, 2005), 149–150.

  8. Klosko, Political Obligations, 148.

  9. Christie Hartley, ‘Two Conceptions of Justice as Reciprocity’, Social Theory and Practice 40, no. 3 (July 2014): 417.

  10. Becker, ‘Social Obligation’, 420.

  11. John Locke, Second Treatise, § 119; Plato, Crito, 50d–51d.

  12. Becker, ‘Social Obligation’; Becker, Reciprocity, 252–310.

  13. Becker, Reciprocity, 105–117.

  14. Becker, Reciprocity, 108.

  15. Becker, Reciprocity, 126.

  16. Becker, Reciprocity, 114.

  17. Becker, Reciprocity, 115, 126.

  18. Klosko, Political Obligations, 149–150.

  19. Gailey H. Kuklin, ‘The Justification for Protecting Reasonable Expectations’, Hofstra Law Review 29, no. 3 (2001): 2. It is worth noting here that Becker also mentions ‘reasonable expectations’ in his work on reciprocity, but he does little to unpack or emphasize this condition, and it does little to provide his theory with the needed specificity. See Becker, Reciprocity, 262.

  20. B.C. Postow, ‘A Possible Ground of Political Obligation’, The Southern Journal of Philosophy 18, no. 1 (Spring 1980): 65. Postow also excludes situations involving adversarial conduct, including sporting events, where trying to frustrate the expectations of others is an aim of the activity. Postow, ‘Political Obligation’, 64–65.

  21. Postow, ‘Political Obligation’, 66.

  22. Postow, ‘Political Obligation’, 65.

  23. A. John Simmons, ‘Reasonable Expectations and Obligations: A Reply to Postow’, The Southern Journal of Philosophy 19, no. 1 (Spring 1981): 123–127; A. John Simmons, ‘Associative Political Obligations’, Ethics 106, no. 2 (January 1996): 257–258.

  24. Simmons, ‘Reasonable Expectations’, 124; Simmons, ‘Associative Political Obligations’, 258.

  25. Simmons, ‘Reasonable Expectations’, 125–126.

  26. Simmons, ‘Associative Political Obligations’, 258.

  27. Postow, ‘Political Obligation’, 64.

  28. Postow, ‘Political Obligation’, 63.

  29. Simmons, ‘Reasonable Expectations’, 126–127.

  30. Nester v. Diamond Math Co., 143 F. 72, 73 (7th Cir. 1906); United States v. Burke, 112 S.Ct. 1867, 1879 (1992).

  31. In this way, the theory advanced below constitutes a pluralistic theory of political obligation, combining multiple moral principles in the manner called for by Jonathan Wolff, ‘Pluralistic Models of Political Obligation’, Philosophica 56 (1995), and Klosko, Political Obligations, 98–102.

  32. Importantly, how judges actually employ this doctrine varies greatly, and it is quasi-contract as it is conceptually understood, rather than how it is applied in every instance, that is utilized here.

  33. Henry Cohen, ‘Change of Position in Quasi-Contracts’, Harvard Law Review 45 (1932): 1333.

  34. Eric Mayer, ‘Implied Contracts’, Corpus Juris Secundum 42 (September 2016): § 8.

  35. C. Szabo Contracting, Inc., v. Lorig Construction Co., 19 N.E.3d 638, 641, 644 (Ill. App. Ct. 2014); Mayer, ‘Implied Contracts’, § 8. Some courts include the prevention of injustice or unfairness as an additional element for the application of quasi-contract. However, since the appeal to fairness appears to be equivalent to the appeal to justice (and does not appear to be used in the more technical sense used by political philosophers) and since the appeal to justice seems redundant, this element is omitted here.

  36. Black’s Law Dictionary, Reasonable Person (10th ed. 2014).

  37. J.D.B. v. North Carolina, 131 S.Ct. 2394, 2402 (2011).

  38. The factual basis for this hypothetical was provided by Cotnam v. Wisdom, 83 Ark. 601 (1907).

  39. The facts for this example were taken from Berry v. Barbour, 279 P.2d 335 (OK 1954).

  40. For a detailed argument, see A.D.M. Walker, ‘Obligations of Gratitude and Political Obligation’, Philosophy and Public Affairs 18, no. 4 (Autumn 1989): 197–199.

  41. For the point that quasi-contractual obligations are not limited to monetary payment for benefits received, see Arthur Corbin, ‘Quasi-Contractual Obligations’, Yale Law Journal 21 (May 1912): 550.

  42. See Berger, ‘Gratitude’, 302–303; Becker, Reciprocity, 93.

  43. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 93–94.

  44. Nozick, Anarchy, 93–94.

  45. A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University, 1979), 90. I use the term ‘benefit’ here in the ordinary sense, as something of value, and not in the more technical sense of whether there is a ‘net’ benefit once the value of the thing or service provided has been weighed against the cost of obtaining or receiving that thing or service. Whether the cost associated with the receipt of a benefit outweighs that benefit is addressed by the fourth element of quasi-contract, the reasonable expectations element. If the cost does outweigh the benefit in this way, then the expected return ceases to be reasonable and is not required.

  46. Exceptions might include individuals present at the inception of a state, or individuals who are present during the formation of laws for unregulated matters. However, such questions fall closer to questions of political legitimacy than to political obligation, and so are beyond the scope of this paper.

  47. For a detailed discussion of the fact that the courts in the United States expect obedience to the law from the citizens of the state, and that this expectation stems from the benefits the state provides to its citizens, see Klosko, Political Obligations, 141–161.

  48. Tom R. Tyler, Why People Obey the Law (Princeton: Princeton University, 2006), 45.

  49. Klosko, Political Obligations, 190–202. See Leslie Green, ‘Who Believes in Political Obligation?’ in The Duty to Obey the Law (Lanham: Rowman & Littlefield, 1999), 301–317 and Michael Huemer, The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey (New York: Palgrave Macmillan, 2013), 101-136 for attempts to provide alternative explanations for this kind of data. Green argues that individuals generally do not have a sufficient understanding of the relevant considerations in order to form a meaningful opinion on the matter. However, Klosko rejects the standard imposed by Green as overly stringent. Political Obligations, 13–16. Huemer marshals a battery of psychological arguments in an effort to discredit the majority consensus in the legitimacy of the state. The shortcoming of this argument is that it seems incongruent with Klosko’s findings that individuals feel a less weighty obligation to those laws from which little benefit is received. Political Obligations, 192-222. This is explained if individuals feel the need to reciprocate for the benefits received from the state. If some kind of brainwashing was actually occurring, it seems that individuals would be more prone to unconditional and absolute obedience and less likely to exercise the kind of discretion revealed by Klosko’s focus groups.

  50. Klosko, Political Obligations, 202–222.

  51. Klosko, Political Obligations, 222.

  52. George Klosko, ‘Samaritanism and Political Obligation: A Response to Christopher Wellman’s ‘Liberal Theory of Political Obligation’, Ethics 113, no. 4 (July 2003): 839–840. Similar objections may be raised for other services provided by the state that do not benefit all directly, such as ‘public parks, wilderness areas, museums, operas, symphonies, play houses, and ballet companies’. George Klosko, ‘Multiple Principles of Political Obligation’, Political Theory 32, no. 6 (December 2004): 807–808, 815. A similar response may be given. To the extent that such services provide citizens with the opportunity to avail themselves of certain benefits, they are thereby benefitted. As long as the reciprocity expected (i.e., what is required by the relevant laws) is reasonable given the benefit bestowed, such examples will not pose a threat to QCT.

  53. See H.L.A. Hart, ‘Are There Any Natural Rights?’ in Arguing About Law, ed. Aileen Kavanagh and John Oberdiek (New York: Routledge, 2009), 315–316; John Rawls, ‘Legal Obligation and the Duty of Fair Play’, in John Rawls: Collected Papers, ed. Samuel Freeman (Cambridge: Harvard, 2001), 122.

  54. For these terms, see Daniel McDermott, ‘Fair-Play Obligations’, Political Studies, no. 52 (2004): 219–220.

  55. Rawls, ‘Duty of Fair Play’, 122.

  56. Richard J. Arneson, ‘The Principle of Fairness and Free-Rider Problems’, Ethics, no. 4 (July 1982): 623; George Klosko, The Principle of Fairness and Political Obligation (Lanham: Rowman & Littlefield, 2004), xx.

  57. Arneson, ‘Principle of Fairness’, 623; Klosko, Principle of Fairness, xx.

  58. Simmons, Moral Principles, 79; A. John Simmons, ‘The Duty to Obey and Our Natural Moral Duties’, in Is There a Duty to Obey the Law? For and Against (New York: Cambridge, 2005), 117-118; Huemer, Problem of Political Authority, 21.

  59. Nozick, Anarchy, 93–95. The primary accusation leveled against theories from consent, both express and tacit, is that too few individuals can be said to have actually provided the consent in question, and thus that consent theories fail to establish a general political obligation. See Simmons, Moral Principles, 79, 93–94; Simmons, ‘Our Natural Moral Duties’, 117–118; Huemer, Problem of Political Authority, 21, 25–35.

  60. Simmons, ‘The Principle of Fair Play’, Philosophy and Public Affairs 8, no. 4 (Summer 1979): 311, 324–329; Simmons, Moral Principles, 132.

  61. Klosko, Political Obligations, 6–7.

  62. Klosko, Principle of Fairness, 45.

  63. A. John Simmons, ‘Fair Play and Political Obligation: Twenty Years Later’, in Justification & Legitimacy: Essays on Rights and Obligations (New York: Cambridge, 2001), 35–36; Craig Carr, ‘Fairness and Political Obligation’, Social Theory and Practice 28, no. 1 (January 2002): 13–15. It is worth noting that Klosko explicitly employs natural duty arguments in his multiple principle theory, but only for the limited purpose of justifying obligations citizens have to the less fortunate. Klosko, Political Obligations, 106–107; George Klosko, Why Should We Obey the Law? (Cambridge: Polity Press, 2018), 77–83. If these criticisms are persuasive, addressing the shortcomings of fairness, the central moral principle in Klosko’s theory, is sufficient to render his overall project unsuccessful. For an explicit rather than implicit appeal to the natural duty of mutual aid in which this duty serves a more central role, see the theory of samaritanism articulated in Christopher Wellman, ‘Samaritanism and the Duty to Obey the Law’, in Is There a Duty to Obey the Law? For and Against (New York: Cambridge, 2005) and Christopher Wellman, ‘Toward a Liberal Theory of Political Obligation’, in Liberal Rights and Responsibilities: Essays on Citizenship and Sovereignty (New York: Oxford, 2014).

  64. Simmons, ‘Our Natural Moral Duties’, 166. See also Simmons, Moral Principles, 30–35, 155–156.

  65. John Rawls, A Theory of Justice (Cambridge: Belknap, 1999), 98.

  66. Simmons, ‘Our Natural Moral Duties’, 187. Klosko and Wellman also both appear to concede this point. Klosko, Political Obligations, 109; Christopher Wellman, ‘Political Obligation and the Particularity Requirement’, in Liberal Rights and Responsibilities: Essays on Citizenship and Sovereignty (New York: Oxford, 2014), 88, 90.

  67. Klosko, Political Obligations, 109–111; Klosko, Why Should We Obey, 79–83.

  68. Wellman, ‘Particularity Requirement’, 90.

  69. Huemer, Problem of Political Authority, 152–153.

  70. A. John Simmons, ‘The Particularity Problem’, APA Newsletter on Philosophy and Law 7 no. 1 (Fall 2007): 19.

  71. Klosko, Political Obligations, 6, 8. Elsewhere, Klosko states that one is to ‘do her part’ and ‘share in [the] efforts’. Klosko, Why Should We Obey, 43.

  72. Arneson, ‘Principle of Fairness’, 623.

  73. Patrick Durning, ‘Two Problems with Deriving a Duty to Obey the Law from the Principle of Fairness’, Public Affairs Quarterly, no. 4 (October 2003): 260; Jiafeng Zhu, ‘Fairness, Political Obligation, and the Justificatory Gap’, Journal of Moral Philosophy, no. 12 (2015): 294.

  74. George Klosko, ‘Fixed Content of Political Obligations’, Political Studies, no. 46 (1998): 61, 64–65.

  75. Klosko, ‘Fixed Content’, 61, 64–65.

  76. Klosko, ‘Fixed Content’, 66.

  77. Klosko, Principle of Fairness, 45.

  78. Jiafeng Zhu, ‘Content-Independence and Natural-Duty Theories of Political Obligation’, Philosophy and Social Criticism no. 44(1) (2018): 62.

  79. Simmons, ‘Our Natural Moral Duties’, 168, 187 (emphasis in original).

  80. Wellman, ‘Particularity Requirement’, 89 (emphasis added).

  81. The same is true for the argument that democratic procedures can account for the needed specificity. There remains no explanation, on fairness grounds, as to why one could not discharge her obligations through some manner other than what the majority decides.

  82. For the claim that the state is necessary, see, e.g., Wellman, ‘Samaritanism’, 5–17; Klosko, Political Obligations, 17–74. For the opposing view, see, e.g., Huemer, Problem of Political Authority, 181–338.

  83. Klosko, Political Obligations, 100; Leslie Green, The Authority of the State (Oxford: Oxford University Press, 1988), Ch. 3.

  84. Klosko, Political Obligations, 246.

Acknowledgments

The author would like to thank Jere Surber, Candace Upton, Raja Raghunath, and especially Jeffrey Brown for their invaluable input on previous drafts of this paper.

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    Cameron Oren Hunter

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Hunter, C.O. A Quasi-Contract Theory of Political Obligation. Law and Philos 39, 93–118 (2020). https://doi.org/10.1007/s10982-019-09364-4

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