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AUTHORITY, LEGITIMACY, AND THE OBLIGATION TO OBEY THE LAW

Published online by Cambridge University Press:  17 July 2018

Richard Dagger
Richard Dagger*
Affiliation:
University of Richmond, Department of Political Science
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Abstract

According to the standard or traditional account, those who hold political authority legitimately have a right to rule that entails an obligation of obedience on the part of those who are subject to their authority. In recent decades, however, and in part in response to philosophical anarchism, a number of philosophers have challenged the standard account by reconceiving authority in ways that break or weaken the connection between political authority and obligation. This paper argues against these revisionist accounts in two ways: first, by pointing to defects in their conceptions of authority; and second, by sketching a fair-play approach to authority and political obligation that vindicates the standard account.

Type
Research Article
Information
Legal Theory , Volume 24 , Issue 2 , June 2018 , pp. 77 - 102
Copyright
Copyright © Cambridge University Press 2018 

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Footnotes

*

I am grateful to David Lefkowitz, Justin Tosi, and the participants in a MANCEPT workshop on authority and legitimacy for comments that helped me to improve an earlier draft of this paper.

References

1. Wolff, Robert Paul, In Defense of Anarchism (3d ed. 1998 [originally published 1970])Google Scholar; Simmons, A. John, Moral Principles and Political Obligations (1979)Google Scholar; Simmons, A. John, Justification and Legitimacy: Essays on Rights and Obligations (2001)Google Scholar (especially Chapter 6, where Simmons draws the distinction between “political” and “philosophical” anarchists).

2. That Simmons continues to adhere to the standard account is evident in his recent Boundaries of Authority (2016), at 62.

3. Shapiro, Scott, Authority, in The Oxford Handbook of Jurisprudence and Philosophy of Law (Coleman, Jules & Shapiro, Scott eds. 2002), esp. §§7.1–7.3Google Scholar.

4. Estlund, David, Democratic Authority: A Philosophical Framework (2008)Google Scholar.

5. Raz, Joseph, The Morality of Freedom (1986), at 27–28Google Scholar.

6. At an earlier presentation of this paper, Bas van der Vossen objected that the existence of de jure authority is altogether distinct from its effective exercise. Strictly speaking, that is so; but as a practical matter, de jure and de facto are not, for the reasons set out above, completely distinct concepts. See also Simmons, supra note 2, at 17 n.10, on this point.

7. Estlund, supra note 4, at 10, 41.

8. Shapiro, who traces this distinction to page 39 of Joseph Raz, The Morality of Freedom, takes a preemptive reason to be one that replaces other reasons and a peremptory reason to be one that excludes certain reasons from serious consideration. However, his discussion in Shapiro, supra note 3, at 406–408, tends to undercut the distinction.

9. I say “typically recognize” to allow for the exceptional cases in which the law acknowledges that disobedience is justified or excused, perhaps because of duress or misunderstanding.

10. The notable exception is Margaret Gilbert, who concerns herself with “genuine” rather than “moral” obligations. See Gilbert, Margaret, A Theory of Political Obligation (2006), esp. 21–23Google Scholar. For helpful surveys of the relevant literature, see Horton, John, Political Obligation (2d ed. 2010)CrossRefGoogle Scholar, Knowles, Dudley, Political Obligation: A Critical Introduction (2010)Google Scholar, and, more briefly, Dagger, Richard and Lefkowitz, David, Political Obligation, in Stanford Encyclopedia of Philosophy (ed. Zalta, Edward N. 2014)Google Scholar, at https://plato.stanford.edu/entries/political-obligation/, and Edmundson, William A., State of the Art: The Duty to Obey the Law, 10 Legal Theory 218 (2004)Google Scholar.

11. Hohfeld, W. N., Fundamental Legal Conceptions as Applied in Judicial Reasoning (1964 [originally published 1919])Google Scholar.

12. Raz, supra note 5, at 56.

13. Ladenson, Robert, In Defense of a Hobbesian Conception of Law, 9 Phil. & Pub. Aff. 134 (1980)Google Scholar.

14. Id. at 141.

15. Hohfeld hoped to restrict “right” to “a right in the strictest sense”—i.e., what we now call a claim-right. See Hohfeld, supra note 11, at 36.

16. Id. at 139 (emphasis added).

17. Id. at 142.

18. Raz, supra note 5, at 25–26.

19. Id. at 26. For a related criticism, see Shapiro, supra note 3, at 395–398. See also Christiano, Thomas, The Constitution of Equality: Democratic Authority and Its Limits (2008), at 242Google Scholar, for remarks that are apposite even though not explicitly directed against Ladenson: “in the case of an authority that is merely justified coercion, the subjects’ reasons for obedience may merely be their desire to avoid punishment… . Such a society does not engage the subjects as moral persons; it merely attempts to administer the activities of persons so as to bring about, in a morally justified way, a desirable outcome.”

20. Ladenson, supra note 13, at 137, 139.

21. Id. at 138.

22. Sartorius, Rolf, Political Authority and Political Obligation, 3 Va. L. Rev. 67 (1981)Google Scholar, reprinted in The Duty to Obey the Law: Selected Philosophical Readings (ed. Edmundson, W. A. 1999)Google Scholar, from which I shall quote.

23. Id. at 152.

24. Id. at 144 (emphasis in original). Note also the final sentence of the essay: “It is thus that I conclude: Government holds a trust” (emphasis again in original). Id. at 156.

25. Id. at 146.

26. Perry, Stephen, Political Authority and Political Obligation, in 2 Oxford Studies in Philosophy of Law (Green, Leslie & Leiter, Brian eds. 2013)Google Scholar.

27. Id. at 13.

28. Id. at 13.

29. Id. at 13.

30. Id. at 22.

31. Id. at 24.

32. Id. at 31 (emphasis added).

33. Id. at 43.

34. As Perry acknowledges, supra note 26, at 42, one of the advocates of the authority-as-power position, Leslie Green, concedes that the distinction between rights/duties and powers/liabilities is a “somewhat technical point.” In the same passage, Green also observes that the “correlation between a right to rule and a duty to obey is distinctive only of the case of political authority.” Green, Leslie, The Authority of the State (1988), at 235Google Scholar.

35. Applbaum, Isak, Legitimacy Without the Duty to Obey, 38 Phil. & Pub. Aff. 215 (2010)CrossRefGoogle Scholar.

36. Id. at 237.

37. Id. at 220.

38. Id. at 220 (emphasis added).

39. See in this regard Copp, David, The Idea of a Legitimate State, 28 Phil. & Pub. Aff. 3, 18 (1999)Google Scholar (“Rights, obligations, and duties support propositions about what agents ought to do pro tanto, but although pro tanto duties are genuine duties, they can be outweighed by other moral factors in a determination of what an agent ought to do all things considered.”).

40. Applbaum, supra note 35, at 228.

41. Id. at 229–230.

42. Copp, supra note 39, at 20.

43. Id. at 27–28; see also id. at 44–45.

44. It is perhaps worth noting that Hohfeld coined “no-right” for want of an adequate term already in use.

45. Copp, supra note 39, at 10–11 (emphasis in original).

46. Id. at 11 (emphasis in original).

47. To be fair, Copp does write here and elsewhere in his essay of a power “to put” people under a pro tanto duty. Perhaps he uses this language, rather than that of liability, in recognition of an inevitable connection between liability and duty.

48. Raz, supra note 5, at 24 (emphasis added).

49. Id. at 61.

50. Shapiro, supra note 3, esp. §§1, 3.4. But note that Shapiro refers to “paradoxes” of authority and autonomy rather than “challenges.”

51. Raz, Joseph, The Problem of Authority: Revisiting the Service Conception, in Raz, Joseph, Between Authority and Interpretation: On the Theory of Law and Practical Reason (2009), at 136Google Scholar.

52. Raz, supra note 5, at 47 (emphasis in original).

53. Raz, supra note 51, at 139.

54. Raz, supra note 5, at 53 (emphasis in original). In The Problem of Authority, at 136–137, Raz says that the normal justification thesis (or condition) will be met when “the subject would better conform to reasons that apply to him anyway (that is, to reasons other than the directives of the authority) if he intends to be guided by the authority's directives than if he does not… .”

55. Raz, supra note 5, at 73.

56. Id. at 74.

57. Id. at 80.

58. Id. at 77.

59. Raz, Joseph, The Obligation to Obey: Revision and Tradition, in Joseph Raz, Ethics in the public domain (1994), at 350Google Scholar.

60. Waldron, Jeremy, Authority for Officials, in Rights, Culture, and the Law: Themes from the Legal and Political Philosophy of Joseph Raz (Meyer, L. H., Paulson, S. L. & Pogge, T. W. eds. 2003), at 63Google Scholar. For Raz's response, see 259–264 of the same volume.

61. Christiano, Thomas, The Constitution of Equality: Democratic Authority and Its Limits (2008), at 233CrossRefGoogle Scholar. See also Christiano's exchange with Steven Wall on this point in 14 J. Pol. Phil. 85 (2006).

62. Bennett, Christopher, Expressive Punishment and Political Authority, 8 Ohio St. J. Crim. L. 285, 296 (2011)Google Scholar (emphasis in original).

63. Christiano, supra note 61, at 234.

64. Shapiro, supra note 3, at 432.

65. Christiano, supra note 61, at 241 (emphasis in original); see also Shapiro, supra note 3, at 432.

66. For a more detailed defense of the fair-play approach to political obligation, see my Playing Fair: Political Obligation and the Problems of Punishment (2018), especially Chapters 3–5.

67. Hart, H. L. A., Are There Any Natural Rights?, 64 Phil. Rev. 175, 185 (1955)CrossRefGoogle Scholar.

68. Simmons, Moral Principles and Political Obligations, supra note 1, at 136–142.

69. A. John Simmons, Fair Play and Political Obligation: Twenty Years Later, in his Justification and Legitimacy, supra note 1.

70. See, inter alia, Besson, Samantha, The Morality of Conflict: Reasonable Disagreement and the Law (2005), at 486–490Google Scholar; Dagger, Richard, Civic Virtues: Rights, Citizenship, and Republican Liberalism (1997), at 72–78Google Scholar; Knowles, supra note 10, esp. 219–227.

71. Klosko, George, The Principle of Fairness and Political Obligation (1992), esp. 39–48Google Scholar.

72. Justin Tosi argues that there are two claim-rights involved here; in addition to the “state's claim right to obedience,” the members of the polity qua cooperative scheme hold a separate claim-right “to similar submission from recipients of the benefits they provide.” Tosi, Justin, A Fair Play Account of Legitimate Political Authority, 23 Legal Theory 55, 65 (2017)CrossRefGoogle Scholar.

73. Copp, supra note 39, at 10–11.

74. I advance such a statement in Dagger, Richard, Playing Fair: Political Obligation and the Problems of Punishment (2018)CrossRefGoogle Scholar.

75. Shapiro, supra note 3, at 432–433.

76. Id. at 433 (emphasis in original).

77. Id. at 435 (emphasis in original).