Political Obligation
+This entry follows the traditional practice of equating political +obligation with a moral duty to obey the law of one’s country or +state. How does one acquire such an obligation, and how many people +have really done what is necessary to acquire it? Or is a political +obligation more a matter of being than of doing +– that is, of simply being a member of the country or state in +question? To those questions many answers have been given, and none +now commands widespread assent. Indeed, a number of contemporary +political philosophers deny that a satisfactory theory of political +obligation either has been or can be devised. Others, however, +continue to believe that there is a solution to what is commonly +called “the problem of political obligation,” and they are +presently engaged in a lively debate not only with the skeptics but +also with one another on the question of which theory, if any, +provides the solution to the problem.
+ ++The history of political thought is replete with attempts to provide a +satisfactory account of political obligation, from the time of +Socrates to the present. These attempts have become increasingly +sophisticated in recent years, but they have brought us no closer to +agreement on a solution to the problem of political obligation than +the efforts of, say, Thomas Hobbes and John Locke in the seventeenth +century. Nor have these sophisticated attempts made it unnecessary to +look back to earlier efforts to resolve the problem. On the contrary, +an appreciation of the troublesome nature of political obligation +requires some attention to its place in the history of political +thought.
+ ++This essay begins, therefore, with a brief history of the problem of +political obligation. It then turns, in Part 2, to the conceptual +questions raised by political obligation, such as what it means for an +obligation to be political. In Part 3 the focus is +on the skeptics, with particular attention to the self-proclaimed +philosophical anarchists, who deny that political obligations exist +yet do not maintain that the state is necessarily unjustifiable. Part +4 surveys the leading contenders among the various theories of +political obligation now on offer, and Part 5 concludes the essay with +a consideration of recent proposals for pluralistic or “multiple +principle” approaches.
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- 1. Political Obligation in Historical Perspective + + + + +
- 2. Conceptual Matters + + + +
- 3. Anarchist Challenges to Political Obligation + + + +
- 4. Contemporary Theories of Political Obligation + + + +
- 5. Conclusion: A Plurality of Principles? +
- Bibliography +
- Academic Tools +
- Other Internet Resources +
- Related Entries +
+ +
1. Political Obligation in Historical Perspective
+ ++The phrase “political obligation” is apparently no older +than T. H. Green’s Lectures on the Principles of Political +Obligation, delivered at Oxford University in 1879–80 +(D’Entrèves, p. 3). The two words from which Green formed the +phrase are much older, of course, and he apparently thought that +combining them required no elaborate explanation or defense. In any +case, there was nothing novel about the problem Green addressed in his +lectures: “to discover the true ground or justification for +obedience to law” (Green 1986, p. 13). Sophocles raised this +problem in his play Antigone, first performed around 440 BCE, +and Plato’s Crito recounts Socrates’ philosophical response +to the problem, in the face of his own death, some forty years +later.
+ +1.1 Socrates on Obeying the Law
+ ++In 399 BCE an Athenian jury found Socrates guilty of impiety and +corrupting the morals of the youth, for which crimes the jury +condemned him to death. According to Plato’s account, Socrates’ +friends arranged his escape, but he chose to stay and drink the fatal +hemlock, arguing that to defy the judgment against him would be to +break his “agreements and commitments” and to +“mistreat” his friends, his country, and the laws of +Athens (Crito, 54c; Trial and Death, p. 54). +Socrates’ arguments are sketchy, and Crito, his interlocutor, does +little to challenge them, but they are nevertheless suggestive of the +theories of political obligation that have emerged in the two and a +half millennia since his death.
+ ++These arguments fall into at least four categories. First, Socrates +maintains that his long residence in Athens shows that he has entered +into an agreement with its laws and committed himself to obey them +– an argument that anticipates the social contract or consent +theory of political obligation. Second, he acknowledges that he owes +his birth, nurture, and education, among other goods, to the laws of +Athens. Together with the explicit analogy he draws between a +father’s rightful claim to his children’s obedience and +Athens’ rightful claim to her citizens’ obedience, these +observations point toward a membership or associative account of +political obligation. Third, Socrates appeals to what is now known as +the argument from fairness or fair play when he suggests that to +disregard his legal sentence would be to free-ride on his fellow +citizens, enjoying the benefits provided by their complying with the +law while refusing to bear the cost of doing so himself. As he asks +Crito, “if we leave here without the city’s permission, +are we mistreating people whom we should least mistreat?” (50a) +Finally, there is a trace of utilitarian reasoning when Socrates +imagines “the laws and the state” confronting him with +this challenge: “do you think it possible for a city not to be +destroyed if the verdicts of its courts have no force but are +nullified and set at naught by private individuals?” (50b) None +of these arguments is fully developed, but their presence in the +Crito testifies to the staying power of intuitions and +concepts – commitment and agreement, gratitude, fair play, and +utility – that continue to figure in discussions of obligation +and obedience.
+ ++Plato’s Crito is noteworthy not only as the first +philosophical exploration of political obligation but also as the last +to appear for centuries. To be sure, the Cynics and others did +question the value of political life, and indirectly the existence of +an obligation to obey the law, but they left no record of a discussion +of the subject as sustained as even the five or six pages in the +Crito. When the morality of obedience and disobedience next +became a much discussed issue, it was a religious as much as a +philosophical discussion.
+ +1.2 Divine Command
+ ++Throughout history, the belief that political society and its rules +are divinely ordained has been so strong as to keep many people, and +probably most, from considering the possibility that disobeying those +rules might ever be justified. With the advent of Christianity, +however, that possibility had to be taken seriously. For the +Christian, the distinction Jesus draws (Matthew 22:15–22) +between the tribute owed to Caesar and that owed to God makes it clear +that what the rulers command may be at odds with what God wants done. +That point became even clearer when the rulers tried to suppress +Christianity. Nevertheless, Christian doctrine held that there is an +obligation to obey the law grounded in divine command, with the most +important text being Paul’s Epistle to the Romans (13:1–2): +“For there is no authority except from God, and those that exist +have been instituted by God. Therefore he who resists the authorities +resists what God has appointed, and those who resist will incur +judgment.”
+ ++As a theory of political obligation, divine command faces two general +problems. First, it presupposes the existence of divinity of some +sort; and second, the commands of the divine being(s) are not always +clear. It is one thing to know that we should give to Caesar what is +Caesar’s and to God what is God’s, for example, and quite another to +know what exactly is Caesar’s due. For Christians, however, the main +challenge was to reconcile Paul’s text with the uncomfortable fact +that rulers were often hostile to Christianity – or, with the +rise of Protestantism in the sixteenth century, hostile to what one +took to be true Christianity. To this challenge, one response was +simply to hold that hostile or vicious rulers must be endured, for God +must have given them power as a sign of His displeasure with a wicked +people. Other responses, though, made room for disobedience.
+ ++One such response was to distinguish the divinely ordained office from +the officer who occupied it. That is, God ordains that political +authority must exist, because the condition of human life since the +fall from grace requires such authority; but God does not ordain that +this or that particular person hold a position of authority, and He +certainly does not want rulers to abuse their authority by ruling +tyrannically. This distinction, employed as early as the fourth +century by St. John Chrysostom, was invoked throughout the middle ages +(McIlwain, pp. 152–53). A second response to the problem Romans +13 posed was to distinguish disobedience from resistance. According to +Martin Luther and others who drew this distinction, Christians may not +actively resist their rulers, but they must disobey them when the +rulers’ commands are contrary to God’s. Yet a third response was to +note the possibility of conflict between two or more of one’s rulers. +In other words, if more than one person holds political authority over +you, and if they issue conflicting commands, then you may satisfy +Paul’s injunction by obeying the authority whose commands are more +congenial to your understanding of true Christianity, even when such +obedience entails resisting the commands of others in authority.
+ ++These last two responses played an especially important part in the +political disputes that accompanied the Protestant Reformation. Under +the pressure of those disputes, however, another theory of political +obligation became increasingly prominent, as Protestants came to rely +on the belief that political authority derives from the consent of the +governed (Skinner, vol. 2, chaps. 7–9).
+ +1.3 The Social Contract
+ ++Although the idea of the social contract long antedates the modern era +(Gough 1967), its full development occurred in the seventeenth +century, when Thomas Hobbes and John Locke used the theory to rather +different ends. Jean-Jacques Rousseau, Immanuel Kant, and other +philosophers have also relied on social contract theory – in +Kant’s case, in ways we will examine below (§1.5) – but the +classic expressions of the contract theory of political obligation +remain Hobbes’s Leviathan (1651) and Locke’s Second +Treatise of Government (1690).
+ ++For Hobbes, social contract theory established the authority of anyone +who was able to wield and hold power. If we imagine ourselves in a +state of nature, he argued, with no government and no law to guide us +but the law of nature, we will recognize that everyone is naturally +equal and independent. But we should also recognize that this state of +nature will also be a state of war, for the “restless desire +for Power after power” that drives all of us will lead to +“a warre of every man against every man” (Hobbes, chaps. +11, 13). To escape so dreadful a condition, people surrender their +independence by entering into a covenant to obey a sovereign power +that will have the authority to make, enforce, and interpret laws. +This form of the social contract Hobbes called “sovereignty by +institution.” But he also insisted that conquerors acquire +authority over those they subject to their rule – +“sovereignty by acquisition” – when they allow those +subjects to go about their business. In either case, Hobbes said, the +subjects consent to obey those who have effective power over them, +whether the subject has a choice in who holds power or not. Because +they consent, they therefore have an obligation to obey the sovereign, +whether sovereignty be instituted or acquired.
+ ++Exactly how much Locke differs from Hobbes in his conclusions is a +matter of scholarly dispute, but there is no doubt that he puts the +same concepts to work for what seem to be more limited ends. According +to Locke, the free and equal individuals in the state of nature +establish government as a way of overcoming the +“inconveniencies” of that state. Moreover, Locke’s social +contract appears to have two stages. In the first stage the naturally +free and equal individuals agree to form themselves into a political +society, under law, and in the second they establish the government. +This move allows Locke to argue, contrary to Hobbes, for a right of +revolution on the ground that overthrowing the government will not +immediately return the people to the state of nature. Nor does he +hold, with Hobbes, that mere submission to a conqueror constitutes a +form of consent to the conqueror’s rule.
+ ++Locke does agree with Hobbes, of course, in deriving obligations to +obey the law from the consent of the governed. In developing his +argument, however, he reveals several problems that have bedeviled +social contract theory. One has to do with the nature of the contract: +is it historical or hypothetical? If the former, then the problem is +to show that most people truly have entered into such a contract (at +least if one’s aim is to show that most people have a duty to +obey the law). If the contract is meant to be a device that +illustrates how people would have given their consent, on the +other hand, then the difficulty is that a hypothetical contract +“is no contract at all” (Dworkin, 1977, p. 151). Two more +problems concern how to characterize acts that count as consent. +Though Hobbes maintains that submission to a conqueror qualifies as +such an act, few are now likely to accept that agreement at the point +of a sword gives rise to a moral obligation to obey (as opposed to a +prudential reason to do so). Indeed, it is not clear that consent is +really the key to political obligation in Hobbes’s theory; +rather, we have an obligation to obey anyone who can maintain order. +As for Locke, he seems to stretch the notion of tacit consent too far +when he states, in §119 of the Second Treatise, that the +“very being of anyone within the territories” expresses a +person’s willing submission to the rule of its government.
+ ++One of the first to find fault with the argument from consent or +contract was David Hume. In “Of the Original Contract,” +published in 1752, Hume takes particular exception to the appeal to +tacit consent. To say that most people have given their consent to +obey the laws simply by remaining in their country of birth is +tantamount to saying that someone tacitly consents to obey a +ship’s captain “though he was carried on board while +asleep and must leap into the ocean and perish the moment he leaves +her” (1953, p. 51). For Hume, the obligation to obey the law +derives not from consent or contract but from the straightforward +utility of a system of laws that enables people to pursue their +interests peacefully and conveniently.
+ +1.4 Utility and Obligation
+ ++For all its influence in other areas of legal, moral, and political +philosophy, utilitarianism has found few adherents among those who +believe that there is a general obligation to obey the laws of one’s +country. Part of the reason for this situation may be the fact that +Jeremy Bentham, John Stuart Mill, and others who followed Hume’s path +had little to say about political obligation. A more powerful reason, +though, is that utilitarians have trouble accounting for obligations +of any kind. If one’s guiding principle is always to act to maximize +expected utility, or promote the greatest happiness of the greatest +number, then obligations seem to have little or no binding force. +After all, if I can do more good by giving the money in my possession +to charity than by paying my debts, then that is what I should do, +notwithstanding my obligations to my creditors. By the same reasoning, +whether I should obey or disobey the law is a matter to be settled by +considering which will do more good, not by determining whether I have +an obligation to obey.
+ ++Some utilitarian philosophers have struggled to overcome this problem, +either by pointing to reasons to believe that respecting obligations +serves to promote utility or by restricting calculations of utility to +rules or norms rather than to individual acts (see the entry on +“consequentialism” for details). Whether their efforts +have been successful remains a matter of debate. There seems to be a +consensus, however, that the most sophisticated attempts to provide a +utilitarian grounding for political obligation, such as those of Rolf +Sartorius (1975, chaps. 5 and 6) and R. M. Hare (1976), have proved +unsuccessful (e.g., Simmons 1979, pp. 45–54; Horton 2010, pp. +60–69). As a result, utilitarianism seldom figures in the +debates of those contemporary political philosophers who continue to +believe that there is, in some political societies, a general +obligation to obey the law.
+ +1.5 Kant on Legitimacy and Obligation
+ ++In contrast to utilitarianism, the practical philosophy of the +eighteenth-century German philosopher Immanuel Kant plays a major part +in contemporary debates about political obligation. The proper +direction of his influence, however, is not altogether settled. On the +one hand, a leading “philosophical anarchist,” Robert Paul +Wolff, claims Kantian inspiration for his a priori rejection of the +possibility of political obligation (see §3.1, below); on the +other hand, important exponents of the “natural duty” +approach to the obligation to obey the law also claim to derive their +arguments from Kant (see §4.4, below). Kant may bear some +responsibility for fostering these divergent responses, but it is safe +to say that he himself was no anarchist, not even of the +“philosophical” sort. Indeed, he seems to insist on an +unqualified obligation to obey the law that goes well beyond what any +political philosopher nowadays will countenance.
+ ++Kant’s theory employs the same basic concepts as Hobbes’s +and Locke’s – natural (or innate) rights, the state of +nature, and the social contract – but he puts them to different +use. In contrast to Hobbes, Kant looks upon the coercive force of the +law not as a limitation on freedom but as the means of securing and +extending it. In the state of nature, as he conceives of it, +individuals may enjoy “wild, lawless freedom,” but the +threats and constraints imposed by others prevent them from freely +acting on their choices (1991 [1797], p. 127). Justified coercion +under law provides a remedy by impeding those who would interfere with +one’s actions, thereby hindering the hindrances to freedom +(Ripstein 2009, pp. 54–55 et passim). Moreover, unlike +Locke’s justification of the social contract as the way to +secure one’s property and escape the +“inconveniencies” of the state of nature, Kant takes the +“civil condition” produced by the social contract to be +the foundation that property rights and justice in general presuppose. +The social contract is thus not a matter of collective consent but a +moral imperative: “When you cannot avoid living side by side +with all others, you ought to leave the state of nature and proceed +with them into a rightful condition, that is, a condition of +distributive justice” (1991, pp. 121–22). “Properly +speaking,” Kant declares, the original contract is not an +expression of consent to be governed; it is “the Idea of this +act, in terms of which alone we can think of the legitimacy of a +state” (1991, p. 127).
+ ++The upshot, as noted above, is that everyone seems to have an absolute +obligation to obey the laws of whoever is in authority; for even if +the ruler “proceeds contrary to law … subjects may indeed +oppose this injustice by complaints … but not by +resistance” (1991, p. 130, emphasis in original; also pp. +176–77). Kant’s comments on this point are not +unqualified, though. Among other things, he states that “the +spirit of the original contract … involves an +obligation on the part of the constituting authority to make the +kind of government suited to the Idea of the original +contract”; and he immediately adds that “the only +constitution that accords with right” is “that of a pure +republic” – that is, “the constitution in which +law itself rules and depends on no particular person” +(1991, p. 148, emphasis in original; for further discussion, see +Ripstein 2009, chap. 11). In any case, it is not so much Kant’s +conclusions as the foundations of his theory that have proved so +important to contemporary discussions of political obligation.
+ +2. Conceptual Matters
+ ++In the twentieth century political philosophers devoted themselves at +least as much to the analysis of the problem of political obligation, +and to the concepts it involves, as to full-scale attempts to devise +theories of the obligation to obey the law. Some even argued that the +existence of political obligations could be established by conceptual +analysis alone – a point we return to in section 3. More often +philosophers working in this vein sought to clarify what was at issue +in the assertion or denial of political obligations, or duties to obey +the law.
+ +2.1 Obligation and Duty
+ ++As the previous sentence suggests, obligations are also duties. That +is true, at any rate, when the obligation in question is political +obligation. To be sure, some philosophers claim to have uncovered +differences between obligations and duties, the most important of +which is that obligations must be voluntarily undertaken or incurred, +but duties need not be (e.g., Brandt 1964; Hart 1958). The obligation +to keep a promise or fulfill a contract, for example, arises only when +one has done something that generates the obligation – made a +promise or signed a contract – but the duties of charity and +truth telling supposedly fall on us regardless of what, if anything, +we voluntarily commit to do. John Rawls relies on this distinction +when he argues that most citizens of a reasonably just political +society have no general obligation to obey its laws, even though they +do have a “natural duty” to support just institutions +– a duty he thinks has the general effect of requiring them to +obey (Rawls 1999, p. 97). For the most part, however, the alleged +distinction between obligation and duty has played no significant role +in the debates over the supposed moral responsibility to obey the law. +To invoke the distinction here would run counter to the tendency in +both ordinary language and contemporary philosophical discussion to +use the terms interchangeably, as when we speak of the +“duty” to keep a promise or an “obligation” to +tell the truth. This essay will proceed, then, like almost everything +written on either side of the question, on the understanding that a +political obligation, if it exists, is a moral duty to obey the law +(but note the elaboration of this point in §2.3).
+ +2.2 Obligation: Political, Legal, and Civil
+ ++One question that immediately arises from this conception of political +obligation is whether “political” is the appropriate +modifier. If the obligation in question is a duty to obey the law, +then why not call it a legal obligation? The answer is that +“legal obligation” has a different kind of work to do. For +many legal philosophers, the claim that a person has a legal +obligation to do X is merely a descriptive claim, a statement of +social fact [see the entry on Legal Positivism]. The fact that a +person has a legal obligation to do X provides him with a moral reason +to do X only if he has a moral duty obey the law; that is, a political +obligation. The value of this distinction is that it allows one to +hold that a person may be subject to a legal obligation even though +she has no political obligation to obey the laws of the regime in +power. Suppose that the regime is tyrannical, inept, or simply so +unjust that only a Hobbesian would maintain that those subject to its +commands have a moral obligation to obey. Nevertheless, most theorists +will agree that people in this unhappy country have legal obligations +to pay taxes, refrain from certain types of conduct when driving, and +do whatever the legal system that enjoys de facto jurisdiction over +them requires; that is, claims to this effect are true descriptions of +the world. But such descriptions are compatible with the belief that +the people of unhappy countries have no moral duty to act as the law +directs simply because the law so directs.
+ ++Bhikhu Parekh (1993, p. 240) employs the phrase “civil +obligation” to refer to “the obligation to respect and +uphold the legitimately constituted civil authority,” from which +follows a moral obligation “to obey the laws enacted by the +civil authority.” “Political” is a broader term, +according to Parekh, and someone who has a truly political obligation +will owe her polity more than mere obedience to its laws, such as a +positive duty to take steps to secure the safety and advance the +interests of her country. (see also Raz 2006, p. 1004). Yet we already +have a term, “civic duty,” that does the work Parekh wants +to assign to “political obligation.” Exhortations to do +our civic duty typically urge us to do more than merely obey the +law. These exhortations would have us vote in elections and be +well-informed voters; buy government bonds; limit our use of water and +other scarce resources; donate blood, service, or money (beyond what +we owe in taxes) in times of crisis; and generally contribute in an +active way to the common good. Whether we really have a civic duty to +do any or all of these things may be a matter of dispute, but appeals +to civic duty are certainly quite common, and it is hardly clear that +there is something to be gained by reclassifying them as appeals to +political obligation.
+ ++We now turn to the question of whether we should distinguish the +concept of political obligation from that of a duty to obey the law. + The answer may depend on whether we understand the term +“political” to refer to the status in virtue of which a +person has the obligation or to the entity or agent to whom she owes +it. In the former case, political obligation refers to those +obligations a person has as a member or citizen of a particular +polity. So understood, a theory of political obligation will tell us +nothing about the authority a state enjoys over non-members; for +example, whether and why short-term visitors residing on its territory +have a duty to obey its laws. That need not render it defective as an +account of political obligation, but it does entail that we should not +take the phrase “political obligation” to be synonymous +with the phrase “a duty to obey the law +simpliciter,” but only with the phrase “a +citizen’s (or member’s) duty to obey the law.” In +contrast, if “political” refers to the agent or entity to +whom a person owes the obligation, then a theory of political +obligation will be synonymous with a theory of the duty to obey the +law, since it will aspire to explain why those who are subject to a +particular state’s jurisdiction, be they citizens or foreigners, +have a moral duty to act as it directs them to act. Arguably, certain +solutions to the problem of political obligation fare better when +“political” refers to the status in virtue of which a +person has the obligation than when it refers to the entity to which +she owes it, or vice versa. For example, membership or associative +approaches to political obligation may have a leg up in justifying +citizens’ duties to obey the law but face a significant +challenge in accounting for the obligation of foreigners to do so (see +§4.3). Conversely, natural duty theories may be able to explain +why anyone, citizen or not, has a duty to obey the law (i.e., the laws +of one or another legal system) but struggle to explain why anyone has +a duty to obey the laws of the particular state of which she is a +member (see the discussion of particularity at the end of § 2.3; +see also §4.4). Attention to the ambiguity in the referent of the +term “political” may also support a pluralistic or +multi-principle solution to the problem of political obligation; e.g., +a membership justification for the duty of citizens to obey the law, +and a consent justification for the duty of foreigners to do so (see +§5).
+ +2.3 Obligation, Morality, and Practical Reason
+ ++As in the five historically significant theories surveyed in the +previous section, the presumption has continued to be that the answer +to the problem of political obligation must be stated in moral terms. +When T. H. Green set out in 1879 “to discover the true ground or +justification for obedience to law,” for example, he was looking +for more than prudence alone can provide. “You ought to obey the +law because you will suffer if you do not” may be a powerful +reason for obedience, but it is not a reason that speaks to +Green’s concern with “the moral function or object served +by law…” (1986, p. 13). For Green, and for almost +everyone else who has pondered it, the problem of political obligation +is a moral problem, and the obligation in question is a kind of moral +obligation. To have a political obligation, then, is to have a moral +duty to obey the law.
+ ++Margaret Gilbert has recently challenged this moralized +characterization of political obligation (Gilbert 2006; Gilbert 2013). +She maintains that a political obligation is a genuine obligation, by +which she means that it provides a person subject to it with a +sufficient, though not necessarily conclusive, reason for action that +trumps considerations of inclination or self-interest. However, +Gilbert distinguishes between two kinds of genuine obligations, or two +senses of the term “obligation,” the first synonymous with +being the subject of a moral requirement and the second with +“owing” something to another (2013, pp. 391–2). +Obligation in this second sense describes a normative relationship +between two or more parties, one that can be created via a suitable +act of will; for example, by what Gilbert calls an exercise of joint +commitment. It is the second sense of obligation that Gilbert +maintains we ought to employ in our analysis of the problem of +political obligation, understood here as the challenge of accounting +for the obligations people owe one another as co-members of a given +polity. That does not preclude the development of a theory concerning +when moral requirements outweigh or defeat people’s political +obligations, of course. The theory of political obligation itself, +however, ought to be de-moralized.
+ ++One upshot of Gilbert’s account is that it entirely separates +the existence of political obligations from the justice or injustice +of the political community’s institutions and laws. On her +account, individuals can acquire genuine obligations in the sense of +owing something to another even when their suitable act of willing is +coerced or the content of what they agree to owe another is immoral. +With respect to political obligation, then, neither state coercion +(i.e., the absence of voluntary consent) nor the injustice of a +state’s laws or institutions precludes its citizens’ +acquisition of a genuine obligation to obey its laws. But why think +that a promise extracted at gun point generates any reason to do that +which one promised, or that a voluntary agreement to torture babies +generates a genuine (albeit not conclusive) obligation to do so? Or, +if coerced or immoral owing-obligations are genuine but always +defeated or trumped by moral-requirement-obligations, one might wonder +why we should posit their separate existence at all? One possibility +is that doing so is necessary to render intelligible the response of +the promisee when the coerced promisor reneges on her promise; we can +understand why the promisee feels betrayed even if we do not think he +is justified in feeling that way. This response, however, treats +Gilbert’s account of political obligation as an explanatory +theory, not a justificatory one (Lefkowitz 2007; for a response, see +Gilbert 2013, pp. 406–7).
+ ++Gilbert aside, theorists of political obligation characterize it as a +moral duty to obey the law. As such, it provides a person with a +categorical reason for action, one that does not depend on her +inclinations or self-interest. Political obligation is also typically +understood to be content-independent; that is, to be a duty +to obey the law as such, or simply because it is the law [Hart 1982, +pp. 254–55]. Where a person has a duty to obey the law, the fact +that the law requires her to X suffices to provide her with a reason +to X, independent of any judgment she may make regarding the merits of +performing X. The problem of political obligation, then, is not simply +the question of whether a person has a reason to do that which the law +would have her do. Often a person will have prudential reasons to do +so, and she may have moral obligations to perform or not perform +specific acts independent of their being legally required or +proscribed, as in the case of forbearing from murder. Rather, the +question concerns the conditions, if any, in which the fact that the +law requires a person to act thus-and-so imposes a moral obligation on +her to act as the law directs. The content-independence of political +obligation reflects the fact that what stands in need of justification +is the polity’s right to its subjects’ obedience; to their +acting as it directs because it so directs them.
+ ++How best to understand the content-independence of political +obligation, and indeed, whether we ought to conceive of a duty to obey +the law in this way, remain live questions. For example, Stefan +Sciaraffa argues that in introducing the idea of content-independence, +H.L.A. Hart relies on Paul Grice’s distinction between natural +and non-natural meaning. Statements with a non-natural meaning provide +those to whom they are addressed with a particular kind of reason to +form some belief or perform some act A, namely the intention of the +agent who uttered the statement that they form that belief or perform +that act. The phrase ‘content-independent reason’ is a +(misleading) label for this particular kind of reason. Or as Sciaraffa +puts the point, “an agent has a content-independent reason to +phi if and only if someone’s intent that she phi is a reason for +her to phi” (2009, p. 234). N.P. Adams counters that a reason is +content-independent if and only if “it has a container as a +constituent part and changing the content of that container does not +determine whether the agent has that reason and does not determine the +weight of that reason” (2017, p. 149). Speech-acts such as +commands and promises are paradigmatic examples of containers. It is +the status of an agent as morally entitled to direct another to +perform some act, apart from any other considerations that count in +favor of performing it, that provide the person so directed with a +reason to perform that act. Sciaraffa and Adams draw on their +respective accounts of content-independence to offer rejoinders to +Peter Markwick’s criticisms of (a common interpretation of) +content-independence (Markwick 2000). Laura Valentini maintains that +“if property P, invoked to justify the authority of law, is not +displayed by legal commands robustly across variations in +their content, then P cannot justify an obligation to obey the law +because it is the law” (2018, p. 141). She then argues that +while certain common approaches to justifying political obligation, +such as consent, can satisfy this understanding of +content-independence, others, such as fair play, cannot. Finally, +George Klosko contends that we ought to reject altogether the claim +that political obligation is content-independent (Klosko 2011; see +Adams, Valentini, for responses).
+ ++How can the state’s mere willing that a person perform a certain +act create a moral obligation to do so? One response is to construe +the successful exercise of practical authority not as the creation of +moral obligations ex nihilo but as a justified claim to +deference to the state’s judgment regarding what its subjects +have independent reason to do. The characterization of this deference +within a person’s deliberation is a matter of some dispute. H. +L. A. Hart and Joseph Raz, for example, argue that law is preemptive; +law does not merely offer a consideration for or against a potential +course of action, to be weighed against any and all other relevant +considerations. Rather, law aims to exclude from an agent’s +deliberation at least some of the considerations favoring or opposing +the conduct at issue, considerations that in the absence of the law it +would be permissible to take into account (Raz 1979, chaps. 1 and 2). +Rival views of the manner in which political obligation functions in a +person’s deliberation reject the exclusionary element of +Raz’s account of the duty to obey the law, arguing that +political obligations are simply weighty moral reasons that are +balanced against all of the other reasons a person has to perform or +not perform a given act (Perry 1989). On neither account, though, is a +person’s political obligation taken to provide her with an +absolute duty to obey the law. Raz, for example, notes that law need +not exclude all of the first-order reasons a person might have for +performing a given act (1986, p. 46). Nor does he claim that the +first-order reason the law provides for not performing a given act +will always outweigh or defeat non-excluded first-order reasons a +person has to perform that act. In other words, the duty to obey the +law is a prima facie or pro tanto reason for action, +from which it follows that the bearer of a political obligation may +not always have a conclusive or all-things-considered reason to act as +the law demands.
+ ++Theorists of political obligation typically ascribe two further +features to the moral duty they seek to defend. First, the duty to +obey the law is general both in the sense that it is a duty to obey +the entire body of law in a given jurisdiction and in the sense that +the duty is borne by all those living within that jurisdiction. Note +that a general moral duty to obey the law is consistent with variation +in the legal obligations different subjects bear. For example, a given +state may impose on all and only its male citizens a duty to register +for a military draft, in which case the full set of legal obligations +borne by men in this state will differ from the full set borne by +women. Nevertheless, citizens of both sexes may be subject to a +general political obligation, meaning that they have a moral duty to +fulfill all of their legal obligations. Raz, however, denies that the +subjects of any existing state or indeed anything remotely like it +have a general duty to obey the law; rather, law’s authority is +piecemeal, both with respect to who has a moral duty to obey a +particular law and with respect to the number of laws within a given +legal system that enjoy authority over anyone.
+ ++The second feature commonly ascribed to political obligations is that +they are typically conceived of as being owed only to the +particular political/legal society that claims primary or exclusive +jurisdiction over a person. Following John Simmons’s influential +analysis, this has come to be known as “the particularity +requirement.” Political obligation, Simmons maintains, carries +an implicit connection to citizenship, which means that those who are +engaged in the political obligation debate “are only interested +in those moral requirements [including obligations and duties] which +bind an individual to one particular political community, set +of institutions, etc.” (1979, p. 31; but cf. Edmundson 2004, p. +232, and Walton, 2013). As indicated below, in §4.4, the main +objection to natural duty theories of political obligation is that +they cannot account for this particularity.
+ +3. Anarchist Challenges to Political Obligation
+ ++Until recently, most political philosophers have assumed that subjects +of a (moderately just) state have political obligations, while +disputing why that is so. Indeed, in the middle years of the twentieth +century some philosophers even asserted, on conceptual grounds, that +political obligation needs no justification. As one of them put the +point, “to ask why I should obey any laws is to ask whether +there might be a political society without political obligations, +which is absurd. For we mean by political society, groups of people +organized according to rules enforced by some of their number” +(Macdonald 1951, p. 192; also McPherson 1967, p. 64, and, more subtly, +Pitkin 1966; but cf. Pateman 1973, and Horton 2010, pp. 138–46). +This view did not long prevail, but it testifies to the strength of +the tendency to believe that citizens surely have an obligation to +obey the laws of their country, at least if it is reasonably just.
+ ++Beginning in the 1960s, however, skeptics have come to occupy a +prominent place in debates over political obligation. As they see it, +there is no general obligation to obey the law, not even on the part +of the citizens of a reasonably just polity. The most thorough-going +of these dissenters have been anarchists proper – that is, those +who insist that states and governments are necessarily immoral +institutions that ought to be abolished. Other skeptics or dissenters +have concluded, though, that the anarchist proper is wrong about the +need for the state but right about the lack of an obligation to obey +the law. Like the anarchist proper, these “philosophical +anarchists” hold that the state is illegitimate, but they deny +that its illegitimacy entails “a strong moral imperative to +oppose or eliminate states; rather they typically take state +illegitimacy simply to remove any strong moral presumption in favor of +obedience to, compliance with, or support for our own or other +existing states” (Simmons 2001, p. 104; but note Huemer 2013, +who regards philosophical anarchism as a second-best alternative that +could prepare the way for anarchism proper).
+ +3.1 Philosophical Anarchism
+ ++The arguments of these philosophical anarchists take either an +“a priori” or an “a posteriori” form (Simmons +2001, pp. 104–106). Arguments of the first kind maintain that it +is impossible to provide a satisfactory account of a general +obligation to obey the law. According to Robert Paul Wolff, the +principal advocate of this view, there can be no general obligation to +obey the law because any such obligation would violate the +“primary obligation” of autonomy, which is “the +refusal to be ruled” (1998 [1970], p. 18). As Wolff defines it, +autonomy combines freedom with responsibility. To be autonomous, +someone must have the capacity for choice, and therefore for freedom; +but the person who has this capacity also has the responsibility to +exercise it – to act autonomously. Failing to do so is to fail +to fulfill this “primary obligation” of autonomy.
+ ++This primary obligation dooms any attempt to develop a theory of +political obligation, Wolff argues, except in the highly unlikely case +of a direct democracy in which every law has the unanimous approval of +the citizenry. Under any other form of government, autonomy and +authority are simply incompatible. Authority is “the right to +command, and correlatively, the right to be obeyed” (p. 4), +which entails that anyone subject to authority has an obligation to +obey those who have the right to be obeyed. But if we acknowledge such +an authority, we allow someone else to rule us, thereby violating our +fundamental obligation to act autonomously. We must therefore reject +the claim that we have an obligation to obey the orders of those who +purport to hold authority over us and conclude that there can be no +general obligation to obey the laws of any polity that falls short of +a unanimous direct democracy.
+ ++Arguments of the second, a posteriori form are more modest in their +aims but no less devastating in their conclusions. In this case the +aim is not to show that a satisfactory defense of political obligation +is impossible but that no defense has proven satisfactory, despite the +efforts of some of the best minds in the history of philosophy. All +such attempts have failed, according to those who take this line, so +we must conclude that only those relatively few people who have +explicitly committed themselves to obey the law, perhaps by swearing +allegiance as part of an oath of citizenship, have anything like a +general obligation to obey the laws under which they live (e.g., Smith +1973; Raz 1979, chap. 12; Simmons 1979, 2001, chap. 6, and 2005; Green +1988, pp. 220–47, and 1996).
+ +3.2 Against Philosophical Anarchism
+ ++Whether a priori or a posteriori, the arguments of the philosophical +anarchists pose a serious challenge to those who believe in a general +obligation to obey the law. This challenge is made especially +difficult by the powerful objections that Simmons and other a +posteriori anarchists have brought against the existing theories of +political obligation. The most effective response, of course, would be +to demonstrate that one’s favored theory does not succumb to +these objections, and we shall briefly consider attempts to respond in +this fashion in §4, below. Some general attempts to refute +philosophical anarchism ought to be noted first, however.
+ ++Some of these attempts apply specifically to Wolff’s a priori +attack on political authority and obligation, and others apply to +philosophical anarchism in general. The arguments against Wolff +usually concentrate on his conception of autonomy and its relation to +authority. In brief, Wolff’s critics argue that he is wrong to +insist that moral autonomy is our “primary” or +“fundamental obligation,” for it “is, in fact, +highly implausible to think that autonomy should invariably override +all other values” (Horton, p. 127). Moreover, there is no reason +to accept Wolff’s claim that autonomy and authority are +necessarily incompatible. Insofar as autonomy is a capacity, as Wolff +says, it will need to be developed before it can be exercised, and +various kinds of authority – including political authority +– will foster its development and make its continued exercise +possible (Dagger 1997, pp. 66–68). Nor is it clear how Wolff can +reject political authority without also rejecting promises and +contracts as illegitimate constraints on one’s autonomy – +a problem that leads even Simmons to declare Wolff’s a priori +anarchism a “failed attempt” (2001, p. 111).
+ ++In the face of these problems, Matthew Noah Smith has recently tried +to rescue the a priori skepticism of Wolff’s theory by +substituting the overriding importance of “the moral status of +the subject’s self” (2011, p. 2) for Wolff’s +reliance on the fundamental duty of autonomy. According to Smith, +preserving the status of the self is incompatible with the law’s +claim to authority, because “the obligation to obey the law +would morally require otherwise morally upstanding subjects to undergo +a radical form of self-effacement in favor of recreating themselves in +the image of foreign values” (p. 2; see p. 9 for an admittedly +“florid” way of making this point). Whether the law is +properly understood as an “alien force” that threatens +“to fix who one is” (p. 14), however, is a point that +critics of a priori anarchism are not likely to concede. Indeed, the +radically individualistic conception of the self that underpins +Smith’s argument is one that proponents of the membership or +associative theory of political obligation (see §4.3, below) will +dismiss from the outset. It seems unlikely, then, that Smith’s +adaptation will develop the “traction” that, on his +account, Wolff’s has failed to gain.
+ ++With regard to philosophical anarchism in general, critics have +responded in various ways, including the disparate complaints that it +is a kind of false or hypocritical radicalism (Gans) and that it is +all too genuine a threat to political order (Senor). The latter +complaint has both an ontological and a conceptual aspect. That is, +the critics argue that philosophical anarchists fail to appreciate the +social or embedded nature of human beings, which leads the anarchists +to conceive of obligation in excessively individualistic or +voluntaristic terms – and that leads, in turn, to their denial +of a general obligation to obey the law. The problem, however, is that +it is a mistake to think “that political life can be left more +or less unchanged by dispensing with some conception of political +obligation and adopting the perspective of philosophical anarchism. +Unless it can be shown that we can continue to talk intelligibly and +credibly of our government or our state, then a root +and branch reimagining of our political relations would appear to be a +necessary consequence” (Horton 2010, p. 133; emphasis in +original). Whether the philosophical anarchists should welcome that +consequence, or whether they can find a way to stop short of it, thus +becomes a major point of contention.
+ ++In the end, of course, the best response to philosophical anarchists, +especially those of the a posteriori kind, will be to produce or +defend a theory of political obligation that proves immune to their +objections. At present, though, no single theory has the support of +all of those who continue to believe in political obligation, let +alone the clear prospect of converting philosophical anarchists. +Several theories remain in contention, however, as the following +section indicates.
+ +4. Contemporary Theories of Political Obligation
+ ++Although the lines that separate one theory from another are not +always distinct, philosophical justifications of political obligation +nowadays usually take the form of arguments from consent, fair play, +membership, or natural duty. Some philosophers advance a hybrid of two +or more of these approaches, and others hold, as the concluding +section shows, that a pluralistic theory is necessary. For the most +part, though, attempts to justify a general obligation to obey the law +follow one of these four lines of argument.
+ +4.1 Consent
+ ++Most people who believe that they have an obligation to obey the law +probably think that this putative obligation is grounded in their +consent. Political philosophers are less inclined to think this way, +however, in light of the withering criticism to which Hume and more +recent writers – notably Simmons (1979, chaps. 3 and 4) – +have subjected consent theory. The critics’ claim is not that +consent cannot be a source of obligations, for they typically believe +that it can. Their claim, instead, is that too few people have either +expressly or tacitly given the kind of actual consent that can ground +a general obligation to obey the law, and hypothetical consent cannot +supply the defect, for reasons already noted.
+ ++Nevertheless, consent theory still has its adherents among political +philosophers. Their versions of consent theory vary considerably, +though, with two main branches emerging in response to the criticisms. +One response, advanced by Harry Beran (1987), accepts the claim that +only express consent can generate a political obligation, but then +calls for political societies to establish formal procedures for +evoking such consent. That is, states should require their members +openly to undertake an obligation to obey the law or to refuse to do +so. Those who decline the obligation will then have the options of +leaving the state, seceding to form a new state with like-minded +people, or taking residence in a territory within the state reserved +for dissenters. In the absence of such procedures, it seems that +Beran’s position is roughly the same as that of the a posteriori +philosophical anarchist. Were the procedures he recommends in place, +though, it is far from clear that the options available to the members +will make their “consent” truly voluntary (Klosko 2005, +pp. 123–29; Horton, pp. 34–36).
+ ++The second line of response to the criticisms of consent theory is to +argue in one way or another that the critics construe +“consent” too narrowly. Thus John Plamenatz (1968, +“Postscript”) and Peter Steinberger (2004, p. 218) have +maintained that voting or otherwise participating in elections should +count as consent; and Steinberger produces a lengthy list of fairly +ordinary activities – calling the police or fire department for +help, sending children to a public school, using a public library, and +more – that constitute “active participation in the +institutions of the state” (pp. 219–20). Mark Murphy and +Margaret Gilbert have sounded variations on this theme by arguing, in +Murphy’s case, that “surrender of judgment is a kind of +consent” (in Edmundson 1999, p. 320), or, in Gilbert’s, +that “joint commitment” is an important source of +obligations, including political obligations (1993, 2006, 2013). For +Murphy, surrender of judgment is consent in the usual sense of +voluntary agreement or acceptance. As he says, “One consents to +another in a certain sphere of conduct in the acceptance sense of +consent when one allows the other’s practical judgments to take +the place of his or her own with regard to that sphere of conduct. +(This consent may be either to a person or to a set of rules: both of +these can be authoritative)” (p. 330). As the earlier discussion +of her ideas indicates (§2.3), Gilbert differs from Murphy, and +others, in taking a joint commitment to be something that need not +arise voluntarily. According to her theory, “an understanding of +joint commitment and a readiness to be jointly committed are necessary +if one is to accrue political obligations, as is common knowledge of +these in the population in question. One can, however, fulfill these +conditions without prior deliberation or decision, and if one has +deliberated, one may have had little choice but to incur them” +(2006, p. 290). Indeed, membership in a “plural subject” +formed through non-voluntary joint commitments plays such a large part +in Gilbert’s theory that it may be better to place her with +those who advocate an “associative” or +“membership” theory of political obligation than with +adherents of consent theory.
+ ++David Estlund (2008, pp. 117–58) has recently offered a new +twist on consent theory. Most theorists maintain that putative acts of +consent are void if it would be wrong to consent to another’s +authority. For example, consent to be another’s slave generates +no obligation even if it genuinely expresses a person’s will. +Estlund argues on grounds of symmetry that we ought to draw the same +conclusion in cases where it would be wrong not to consent to +another’s authority. Such failures are void, and so a person who +morally ought to have consented to another’s authority has a +duty to obey her. If subjects of a given state ought to consent to +obey its laws, say because the state performs morally necessary tasks, +then their failure to do so is void and no barrier to concluding that +they are under a political obligation to that state. Estlund’s +defense of what he labels normative consent is subtle and +sophisticated. Still, one might wonder whether in cases where +non-consent is void the duty to submit to another’s authority +follows directly from the considerations in virtue of which it is +wrong for someone not to consent (see Sreenivasan 2009). It is also +unclear whether there is enough of a connection between the +agent’s will and her coming to be subject to another’s +authority to warrant classifying Estlund’s account as an example +of consent theory (for responses to both concerns, see Estlund 2008, +pp. 127–131; 2009).
+ +4.2 Fair Play
+ ++Although earlier philosophers, including Socrates, appealed to +something resembling the principle of fairness (or fair play), the +classic formulation of the principle is set out in H. L. A. +Hart’s “Are There Any Natural Rights?” As Hart there +says, “when a number of persons conduct any joint enterprise +according to rules and thus restrict their liberty, those who have +submitted to these restrictions when required have a right to a +similar submission from those who have benefited by their +submission” (1955, p. 185). John Rawls subsequently adopted this +principle in an influential essay of his own, referring to the duty +derived from the principle as the “duty of fair play” +(1964). What the principle of fair play holds, then, is that everyone +who participates in a reasonably just, mutually beneficial cooperative +practice – Hart’s “joint enterprise according to +rules” – has an obligation to bear a fair share of the +burdens of the practice. This obligation is owed to the others who +cooperate in the enterprise, for cooperation is what makes it possible +for any individual to enjoy the benefits of the practice. Anyone who +acts as a free rider is acting wrongly, then, even if his or her +shirking does not directly threaten the existence or success of the +endeavor. Those who participate in the practice thus have rights +against as well as obligations to one another: a right to require +others to bear their share of the burdens and an obligation to bear +one’s share in turn.
+ ++The principle of fair play applies to a political society only if its +members can reasonably regard it as a cooperative enterprise that +works to their mutual benefit. If it can, the members have an +obligation of fair play to do their part in maintaining the +enterprise. Because the rule of law is necessary to the maintenance of +such a polity – and perhaps even constitutive of it – the +principal form of cooperation is abiding by the law. In the absence of +overriding circumstances, then, the members of the polity qua +cooperative practice must honor their obligation to one another to +obey the laws. In this way the principle of fair play provides the +grounding for a general obligation to obey the law, at least on the +part of those whose polity they can reasonably regard as a cooperative +enterprise.
+ ++The argument from fair play has met with serious criticism, however. +The most sweeping is that of Robert Nozick, who objects that the +principle of fair play would allow others to place us under an +obligation to them simply by conferring benefits on us (1974, pp. +90–95). To make his point, Nozick imagines a group of neighbors +creating a public entertainment system and assigning every adult in +the neighborhood a day on which he or she is responsible for planning +and broadcasting a program. As a resident of the neighborhood, you +occasionally hear and enjoy the programs, but you never consent to +take part in this scheme. When your assigned day arrives, are you +obligated to take a turn? The principle of fair play says yes, +according to Nozick, but the correct answer to the question is +“surely not.”
+ ++According to a second objection, fair-play considerations apply only +to cooperative schemes that produce benefits one may refuse. If it +produces nonexcludable goods, which everyone receives regardless of +whether she contributed to their production or even wants them, then +there can be no fair-play obligation to bear a share of the burdens of +the enterprise. But this is typically the case in political societies, +which produce goods such as public order and national defense that one +cannot meaningfully refuse to accept. As Simmons puts it (1979, p. +129), there is a difference between receiving and +accepting benefits, and receiving them is not enough to place +someone under an obligation. If there is a political obligation, +therefore, it does not follow directly from the existence of the kind +of nonexcludable goods that states provide. To be sure, Simmons does +acknowledge that some people may acquire fair-play obligations by +enjoying nonexcludable benefits that they take to be “worth the +price [they] pay for them” if they do so in full awareness that +“the benefits are provided by a cooperative +scheme” (1979, p. 132; emphasis in original). But he also +maintains that few people will satisfy both of these conditions, with +the second proving especially troublesome for advocates of fair-play +theory: for “even in democratic political communities, these +benefits are commonly regarded as purchased (with taxes) from a +central authority, rather than as accepted from the cooperative +efforts of our fellow citizens” (1979, p. 139).
+ ++As one might expect, advocates of the fair-play account have not +remained silent in the face of these criticisms. The leading advocate, +George Klosko, has written two books elaborating and defending the +principle of fairness as the foundation of political obligation (2004 +[1992], 2005), and it sometimes seems that every fresh attack on fair +play provokes a swift response (e.g., Carr 2002 and Lefkowitz 2004; +Zhu 2014 and Tosi 2017). And the attacks have certainly continued +(e.g., Simmons 2001, chap. 2; McDermott 2004), as we shall indicate +shortly. First, though, it is necessary to see how fair-play advocates +have responded to the criticisms sketched above.
+ ++With regard to Nozick’s objection, the response is usually to +hold that his example of the neighborhood entertainment system is +beside the point (Bell 1978). That is, Nozick is probably right to say +that one would have no obligation to operate the system on his or her +assigned day, but he is wrong to think that fair play would require +one to do so. There is no fair-play obligation in cases such as this, +either because the passive receipt of benefits is not enough to show +that one is a participant in a cooperative practice (Dagger +1997, pp. 69–70) or because the benefits are “of +relatively little value” (Klosko 2004, pp. 38–39:). +Responses to Simmons’ objections have taken two directions. One +is to say that Simmons has drawn too sharp a distinction between the +acceptance and receipt of benefits. Between the person who passively +receives the benefits of a cooperative practice and the one who +knowingly and willingly accepts them is the person – very many +people, in fact – who actively participates in the practice +without being fully aware, in the ordinary course of life, that she is +undertaking an obligation to do her part in a cooperative practice +(Dagger 1997, pp. 73–78; Besson 2005, pp. 487–89). Others +respond to Simmons’ criticism by denying that obligations must +be incurred voluntarily (Arneson 1982; Klosko 2004, pp. 39–57 ). +What matters is not that one accepts the benefits of the practice, +according to Klosko’s influential account, but that three +conditions are met: “Goods supplied must be (i) worth the +recipients’ effort in providing them; (ii) ‘presumptively +beneficial’; and (iii) have benefits and burdens that are fairly +distributed” ( 2004, p. 39 ). If, in sum, a state qualifies as a +cooperative enterprise, and if it provides its members with goods that +are presumptively beneficial – or “indispensable for +satisfactory lives” (Klosko 2005, p. 6) – then its members +have an obligation grounded in fairness to obey its laws.
+ ++These responses have not settled the debate in favor of a fair-play +account of political obligation. Simmons, for example, continues to +hold that modern political societies are too large and impersonal to +count as cooperative enterprises (2001, pp. 38–42). He also +contends that Klosko’s theory is “not really a +fairness theory at all,” but a “disguised Natural +Duty theory, resting on an unstated moral duty to help supply +essential goods locally …” (2005, p. 190, emphasis in +original; also 2007, pp. 22–23). Others complain that fair-play +theory is not suitably sensitive to the possible alternatives there +may have been to the cooperative practices that have emerged. We may +admit, on this view, that people receive benefits from a cooperative +practice, and even net benefits, but we should also notice that they +might have benefited more from the establishment of a different +practice. To say, in these circumstances, that those who are engaged +in a cooperative practice have an obligation to do their part is to +accept the principle of fairness as “a powerfully conservative +principle” (Normore 2010, p. 231). Yet having a fair-play +obligation to the members of an ongoing enterprise does not bar anyone +from trying to transform that enterprise, perhaps even by means of +civil disobedience (see the entry on Civil Disobedience).
+ ++In the political context, according to another critic, the proper +comparison is between a state of affairs in which benefits follow from +other people’s obeying the laws in the sense of mere compliance, +on the one hand, and a situation in which benefits follow from +others’ obeying “because the law says to do +it” (Durning 2003, p. 255). If the benefits are the same in both +cases, then there is no reason to think that true cooperation, rather +than mere compliance, is producing the benefits, and hence no reason +to think that those who receive the benefits have a fair-play +obligation to obey the laws. This argument seems likely to do no more +than renew controversies about the nature of such societies and the +viability of philosophical anarchism. The question is whether we can +expect a polity to survive if its “members” regard one +another not as cooperators in a common enterprise but exclusively as +purchasers of governmental services who comply with the law under the +threat of coercion.
+ +4.3 Membership or Association
+ ++Recent decades have witnessed a resurgence of arguments in defense of +an associative account of political obligation. Associative +obligations are ones that agents are alleged to have merely in virtue +of their occupying a role in some socially salient relationship, such +as being a parent, a friend, or a doctor. These roles are at least +partly constituted by the various obligations their occupants owe to +the other(s) in the relationship; to be X’s parent or Y’s +friend just is to have certain duties to X or Y (as well as certain +claims against them). Exactly what those obligations are varies +somewhat depending on the relationship in question and the society in +which the participants in that relationship are embedded. These +variations reflect different conceptions of the relationship’s +value or purpose, or of the particular obligations that follow from a +specific conception. Whatever their number and content, associative +obligations are owed only to particular others, namely those with whom +an agent has a certain kind of relationship, rather than being owed +universally to all moral agents or sentient beings in virtue of their +status as such.
+ ++Since associative obligations attach to an agent simply in virtue of +her occupying a role in a particular relationship, it makes no +difference whether she comes to occupy that role voluntarily, as in +the case of professional relationships and most friendships, or +non-voluntarily, as in the case of sibling relationships or, in many +cases, citizenship. As these examples suggest, occupying roles in +various types of relationships often figures centrally in +people’s identity. In part, this is a matter of people’s +self-conception; many of us strongly identify with our role as +parents, children, siblings, friends, teachers, members of specific +religious communities, and so on. Some proponents of associative +obligations advance a stronger claim, however. Human beings are not +essentially unencumbered individuals who can move in and out of +various roles while remaining the same person; rather, we are all +embedded in a web of normative relationships, some of which we cannot +exit without being “reborn” as radically different +people.
+ ++An associative account of political obligation has many attractive +features. It provides a justification for a duty to obey the law that +does not depend on an individual’s choice or voluntary exercise +of will – surely a virtue when so many people have not consented +to be ruled by the state that governs them, or to be a member of the +political community on whose behalf it does so. The particularity of +political obligation – again, the fact that it is owed to the +particular political community to which an agent belongs – +follows straightforwardly from its nature as an associative +obligation. So, too, does the claim that political obligation requires +obedience to law. As Samuel Scheffler observes, +“membership-dependent reasons are reasons for doing one’s +share, as defined by the norms and ideals of the group itself, to help +sustain it and contribute to its purposes” (2018, p. 17). Law +specifies, perhaps incompletely, what counts as doing one’s +share. John Horton makes the same point when he writes that laws +“define the terms of association within a polity, [and] concern +for the interests and welfare of the polity is a concern for these +terms of association” (1992, p. 165). Finally, many people +apparently think of themselves as members of political societies, and +in virtue of that fact, believe that they have an obligation to obey +its laws. To pay one’s taxes, to vote, to serve on a jury or in +the armed forces, to coordinate with other members of one’s +polity to ensure a safe environment, and so on, is simply to fulfill +the obligations of citizenship. An associative account of political +obligation captures this (allegedly) widespread sense that “deep +and important obligations flow from identity and relatedness” +(Tamir 1993, p. 99).
+ ++Like the other theories of political obligation, associative accounts +have met with considerable criticism. One line of attack targets the +parallels many of its proponents draw between the family and the +polity. In Ronald Dworkin’s words, “political association, +like family and friendship and other forms of association more local +and intimate, is in itself pregnant of obligation” (1986, p. +206). John Horton invokes further analogs between family and polity in +his argument for associative political obligation:
+ ++ ++ ++My claim is that a polity is, like the family, a relationship into +which we are mostly born, and that the obligations which are +constitutive of the relationship do not stand in need of moral +justification in terms of a set of basic moral principles or some +comprehensive moral theory. Furthermore, both the family and the +political community figure prominently in our sense of who we are: our +self-identity and our understanding of our place in the world (1992, +pp. 150–51).
+
+While some critics contest the existence of associative obligations +even among family members (Wellman 1997), others acknowledge their +existence but maintain that they depend on a degree of intimacy and +emotional connection absent from the relationship between citizens of +a modern state. As Diane Jeske writes: “[A]ll of the features of +intimate relationships that seem morally significant – the +mutual emotions and attitudes of the parties to each other as +individuals, the personal interaction, the mutual knowledge and +understanding of each other’s character – must be ignored +in the grounding of associative [political] obligations. [I]f the +relationships that ground associative obligations are to include +political relations, the notion of a relationship has to be stretched +beyond recognition” (2001, p. 38; see also Simmons 1996; Wellman +1997; Dagger 2000). Advocates of associative political obligation +offer two (complementary) responses. First, some contend that citizens +of modern states can and do care for their fellow citizens and the +health of their common political community, even if their +relationships with one another do not approximate the intimacy we find +in a (healthy) nuclear family. The concern for one’s polity, and +its present, past, and future members, reflects the special +relationship one bears to them, and therefore differs from the concern +a person may have for all moral agents or sentient beings as such. +Second, we should not assume that a relationship must be characterized +by intimacy or specific types of emotional connection in order to have +the sort of value that can justify associative obligations (Horton and +Windeknecht 2015, p. 907, Scheffler 2018, p. 10). Even if intimacy is +a necessary condition for realizing the good of friendship, and love a +necessary condition for realizing the non-instrumental value of the +parent-child relationship, it does not follow that they are necessary +for achieving the (non-instrumental) value of political +association.
+ ++Nevertheless, defenders of an associative account of political +obligation owe their interlocutors an account of what makes political +association valuable. The emphasis these theorists have placed on +membership or association as the ground of political obligation, +whilst giving relatively little attention to what makes it valuable, +has invited the following objection: if membership is sufficient to +generate an obligation to obey, then the members of unjust and +exploitative groups will have an obligation to obey the rules. In the +case of the polity, this leads to the unpalatable and +counter-intuitive conclusion that the routinely exploited and +oppressed “members” of an unjust polity are under an +obligation to obey its laws (Dagger 2000; 2018, p. 89).
+ ++The obvious rejoinder is to deny that unjust associations have the +sort of value that can ground associative obligations, or at least +that this is so for those “members” who are routinely +exploited and oppressed. Thus, John Horton develops a two-pronged +account of associative political obligation according to which a +polity must provide its citizens “the generic good of order +and security” and its members must identify with it and +acknowledge its political authority (Horton 2010). Similarly, +Scheffler maintains that “the value of one’s membership is +not independent of the nature of the society or the justice of its +institutions,” (2018, p. 14) while Ronald Dworkin holds that +associative political obligations arise only among members of a +community of principle, one committed to the treatment of all its +members with equal concern and respect (1986, pp. 213–215). +Whereas these rejoinders all make associative political obligations +conditional on the polity adequately satisfying certain substantive +moral standards, Massimo Renzo sketches a response that focuses +instead on what makes a person a member of a political society. His +answer is a “quasi-voluntarist reformulation of the associative +model” which holds that we voluntarily occupy our roles even in +families and polities as long as “we could have stepped out of +them if we had wanted” (2012, p. 109, p. 120). Oppressed +“members” of a polity have no associative obligations, at +least if stepping out of their role as “members” is not an +option available to them at a reasonable cost.
+ ++Critics maintain that in offering responses like those just described, +associative theorists effectively abandon their attempt to provide a +distinctive account of political obligation (Dagger 2018, p. +79–82; Wellman 2000, p. 553; Simmons 2001, pp. 83–84; +2005, pp. 111–115). That is because the moral duty to perform +the (conventional) duties that constitute the role of citizen +ultimately depends either on an agent’s exercise of will, i.e. +consent or accepting the benefits of others’ cooperation, or a +natural duty, such as the duty to support just institutions or the +duty to maximize aggregate welfare. In all of these cases, +citizens’ duty to obey the law ultimately depends on a +consideration other than their membership in the polity. The task of +morally justifying political obligation bottoms out not in the fact of +association but in a moral principle external to it.
+ ++Some associative theorists respond that the critics conflate +considerations that disable associative obligations with +considerations that ground or justify associative obligations (Horton +and Windeknecht 2015, p. 914; Scheffler 2018, p. 11). For instance, it +may be that the freedom to exit a relationship is a necessary +condition for it being one that has the sort of value that justifies +obligations on the part of those who participate in it. Awareness of +the impossibility of exit may lead a person to feel alienated from +their role in the relationship, or otherwise preclude it from being +one that is valuable for that person. Yet it is the good realized in +the relationship that justifies participants’ claims against one +another, and the duties to which they correlate, not any consent +implicit in their continued participation in it.
+ ++Another rejoinder starts from the observation that actual associations +between family, friends, and fellow citizens are typically +approximations of moralized ideal types. That is, +considerations of fairness, respect, care, and reliance are part and +parcel of our concepts of parent, sibling, friend, and citizen. Thus, +the invocation of unfairness, disrespect, or neglect to rebut the +claim that one has a duty to Ø because one occupies the role of +sibling or citizen need not involve an appeal to some moral principle +external to the relationship. Instead, it may involve an appeal to a +principle internal to the relationship; that is, to a +moralized conception of what it is to be a sibling or citizen. This +line of argument entails that obligation-generating associations exist +only where they realize the relevant ideal-type to a sufficient +degree; all genuine associations or relationships are, necessarily, +good or valuable associations. Thus, an associative theorist who +adopts this line of argument has a ready response to the allegation +that she is committed to the conclusion that exploited or oppressed +citizens have a duty to obey the law: since they have no genuine +political association or common citizenship with their oppressors, +they have none of the duties that flow from such a relationship when +it exists.
+ ++A last response holds that freedom, equality, fairness, and so on are +not abstract principles from which we can derive the existence or +non-existence of political obligation; rather, they are regulative +ideals to which (a sufficient number of) participants in genuine +political communities are committed, despite their many differences on +points of detail large and small. There is no vantage point outside +the specific, historical, political communities in which we are +inevitably situated, from which we can identify the true bases of our +moral obligations and so determine whether we have a moral duty to +obey the law. Thus, there is no abstract, universal, moral principle +of fairness, utility, respect for autonomy, etc., that provides a firm +foundation for associative obligations, or at least not one to which +we have any access. Rather, there are only the concrete practices of +fairness, welfare-promotion, and so on realized in actual polities. +“Political obligations are practical commitments that come into +play through participants’ mutually holding each other to +account in political practices,” (Fossen 2014, p. 231) not +truths derived from more basic principles comprehended via an act of +intellect.
+ +4.4 Natural Duty
+ ++The final contenders in the political obligation debates are natural +duty accounts. In this context, natural duties are understood to be +ones people have simply in virtue of their status as moral agents; +they need do nothing to acquire them, nor does their bearing such +duties depend on their occupying some role in a socially salient +relationship. Natural duties are also universal in scope; they are +owed to all members of a class defined in terms of possession of some +feature, such as sentience or rationality. John Rawls first broached +such an argument for political obligation when he asserted in A +Theory of Justice that everyone is subject to a natural duty of +justice that “requires us to support and to comply with just +institutions that exist and apply to us” (1999, p. 99). More +recently, political philosophers and theorists including Jeremy +Waldron (1999), Thomas Christiano (2008), Christopher Heath Wellman +(2005), Anna Stilz (2009) and, arguably, David Estlund (2008; see +section 4.1 above) have refined and expanded upon Rawls’s +somewhat vague contention, some of them in ways reminiscent of or even +explicitly modeled on Kant’s defense of political obligation +(see section 1.5 above).
+ ++Contemporary natural duty theorists differ over the natural duty that +provides the basis for political obligation. Christiano grounds his +account in a fundamental principle of justice requiring the equal +advancement of people’s interests, Wellman in a Samaritan duty +of easy rescue, and Stilz in a Kantian duty of respect for +others’ freedom-as-independence, understood as a secure sphere +of self-determination defined by a person’s rights. These +theorists agree, however, that moral agents can discharge their +natural duty to others only through submission to the authority of a +common legal order. This is so for several reasons: the demands of +justice are sometimes underdetermined; its achievement requires the +resolution of coordination problems; and most importantly, people +reasonably disagree over the demands of justice. Christiano traces +this disagreement to what he calls the facts of judgment: diversity in +people’s natural talents and cultural surroundings, cognitive +biases in their interpretation of people’s interests and the +value assigned to their own interests relative to the value assigned +to the interests of others, and fallibility in both moral and +non-moral judgment. In light of these facts, even those who make a +good faith effort to discern what justice requires of them in their +interaction with others will fail to reach a consensus. Agents who act +on their own, private, judgment of justice will be perceived by others +to be acting unjustly. If some are able to unilaterally impose their +conception of justice on others, the latter will not enjoy +freedom-as-independence (Stilz 2009), or will suffer the violation of +their fundamental interests in being at home in the world, in +correcting for others’ cognitive biases, and in being treated by +one’s fellows as a person with equal moral standing (Christiano +2008). Only submission to a common legal order can provide a solution +to this problem of domination and conflict, argue natural duty +proponents of political obligation. “There is no way other than +general compliance with a single authoritative set of rules to secure +peace and protect basic moral rights” (Wellman 2005, p. 45); law +“settle[s] for practical purposes what justice consists in by +promulgating public rules for the guidance of individual +behavior” (Christiano, p. 53); or in Stilz’s Kantian +terms, law replaces the unilateral imposition of obligations on others +with the omnilateral imposition of obligations on all.
+ ++Not just any legal order will do, though. Rather, many natural duty +theorists of political obligation argue either that the law must be +crafted according to democratic procedures or that it must not violate +certain individual rights, or both, if those it addresses are to have +a duty to obey it. Christiano, for instance, argues that against a +background constituted by diversity, cognitive bias, and fallibility, +agents can be sure that their fundamental interest in judgment will +not be unjustifiably set back only if political power is exercised +within institutions that publicly realize equality, i.e. democratic +ones. Likewise, Waldron defends the authority of a majority-rule +decision procedure on the basis of its “commitment to equality +– a determination that when we, who need to settle on a single +course of action, disagree about what to do, there is no reasonable +basis for us in designing our decision-procedures to accord greater +weight to one side than to the other in the disagreement” +(Waldron 1999, p. 117; see also Lefkowitz 2004). Even if a person does +not believe that the particular scheme of distributive justice +realized in the law treats her justly, she can recognize that the +process whereby that scheme was created, and can be modified or +eliminated, does treat her as an equal. Daniel Viehoff also appeals to +the egalitarian character of democratic procedures to justify a moral +duty to obey the law, arguing that they best realize an ideal of +relational equality in which agents forbear from using any power +advantages they may enjoy to determine the terms of their morally +necessary coordination (Viehoff 2014; see also Kolodny 2014; Viehoff +2019). Finally, Stilz argues that law omnilaterally imposes +obligations on all only if it expresses a general will. It does the +latter if and only if it “first, defines rights (protected +interests) that apply equally to all; second, it defines these rights +via a procedure that considers everyone’s interests equally; and +third, everyone who is coerced to obey the law has a voice in the +procedure” (Stilz 2009, p. 78). The latter two conditions, she +maintains, can only be met by a democratic procedure. Unsurprisingly, +some theorists remain unconvinced by the forgoing arguments for +democracy’s essential contribution to the justification of +political obligation (see, e.g., Huemer 2013; Frye and Klosko +2017).
+ ++Whatever its details, many natural duty theorists also argue that the +conception of the person that grounds their accounts of political +obligation also limits the scope of legitimate law. Reasonable +disagreement over freedom-as-independence does not extend to torture, +for example, and at some perhaps indeterminate point the denial of +freedom of conscience clearly conflicts with a person’s +fundamental interests in correcting for cognitive bias and being at +home in the world. Most natural duty theorists conclude that subjects +of a legal order that recognizes no rights on the part of some or all +of its subjects against such treatment lacks legitimate authority, +even if it is democratic.
+ ++Recall that natural duty accounts of political obligation begin with +duties that all moral agents owe to all other moral persons as such. +Simmons argues that this commitment renders natural duty accounts +unable to justify the particularity of political obligations; that is, +the fact that people have political obligations in virtue of their +citizenship or residence in particular states, and that they owe those +obligations to that particular state (or to their fellow citizens) +(1979, pp. 31–5; 2005, pp. 166–79). Even if we have a +natural duty “to support and comply with just +institutions,” as Rawls maintains, why must we discharge that +duty by supporting and complying with the just institutions that +comprise the state in which we are citizens or residents? True, those +are the institutions that “apply to us,” in the sense that +they claim jurisdiction over us. But why think this social fact +has any moral import, particularly if we think the political +institutions of other states more worthy of our support because they +better promote justice, or are in greater need of support?
+ ++Some natural duty theorists point to the intensity and frequency of +interaction among those who live in close proximity to one another as +a justification for the duty to obey the laws of the particular +jurisdiction in which one resides (Waldron 1993; 1996). Others +emphasize that a person who free-rides on his fellow citizens’ +support for and compliance with the law to act on his own judgment of +how he can best discharge his natural duty of justice unfairly takes +advantage of them. Absent their good-faith sacrifice of the liberty to +act on their private judgments regarding what justice requires, the +free-rider would likely be unable to act as he does (Wellman 2005, pp. +44–5). Finally, some natural duty theorists argue that Simmons +misconstrues the natural duty of justice. Justice is not an outcome or +state of affairs that agents have a duty to promote via whatever means +they judge to be most effective or efficient, be it the political +institutions of their state or those of another. Rather, justice +characterizes a particular manner of interacting with others, such as +with respect for their freedom-as-independence or their fundamental +interests, including but not limited to their interests in judgment. +At least for a citizen of a liberal democratic state, the latter +construal of justice entails that she can only treat her fellow +citizens justly if she guides her conduct according to its law (Stilz +2012).
+ ++Simmons has recently offered a rebuttal to this second line of +argument (Simmons 2013). It entails, he argues, that citizens of one +liberal-democratic state who are forcibly subjected to the rule of +another liberal-democratic state immediately acquire political +obligations to the second state as long as they are accorded full +citizenship rights. Simmons treats this implication as a reductio ad +absurdum of the democratic Kantian justification for political +obligation, a demonstration that it cannot properly account for the +particularity of such obligations. In part, this latest rejoinder by +Simmons evidences and gives further impetus to a shift in the debate +over political obligation from the question of what gives states a +right to rule particular people, to which correlates their duty to +obey the law, to the question of what gives states a right to rule +over a particular territory [see the entry on territorial rights and +territorial justice]. But it also points to the need for natural duty +theorists to elaborate upon their so far brief discussions of the +contribution that a legitimate international legal order makes to the +legitimacy of domestic legal orders.
+ +5. Conclusion: A Plurality of Principles?
+ ++The four theories of political obligation sketched above do not +exhaust the possibilities – Dorota Mokrosinska, for instance, +has recently advanced a “civil justice” theory in her +Rethinking Political Obligation – but they seem to +represent the main lines of argument. Indeed, even Mokrosinska +acknowledges that her “argument from civil justice combines +elements of both natural duty accounts and associative theories” +(2012, p. 174). In fact, the search for a hybrid theory is something a +number of philosophers have undertaken, either implicitly or +explicitly, in recent years. Gilbert (2006) and Steinberger (2004), +for example, seem to have developed hybrid theories without ever +advertising them as such. Gilbert’s theory fuses the consent and +associative approaches through her reliance on joint +commitments to a plural subject, or group. For his part, +Steinberger combines the consent and natural-duty approaches, arguing +that any “generalized attempt to divorce obligations from +natural duties, to find justifications for the former that are +entirely independent of the latter, is … doomed to fail” +(2004, p. 211). Wellman explicitly acknowledges the hybrid nature of +his theory, which combines an appeal to the natural duty of +samaritanism with reliance on the argument from fair play (Wellman +2005, esp. chap 2).
+ ++Others, notably Klosko (2005), Jonathan Wolff (1995, 2000), and Dudley +Knowles (2010) have explicitly called for a pluralistic or +multiple-principle approach to political obligation. There is no +single answer to the problem of political obligation, as they see it, +because the problem has more than one aspect. Not every +“member” of a polity will stand in the same relation to +the laws, for instance, which means that it is a mistake to think that +everyone must have the same general obligation to obey. Nor is every +obligation of equal force. Some are weak, such as the notorious +obligation to stop at a traffic signal in an isolated area when no one +else is around, and others are quite strong. Klosko thus thinks it +necessary to rely on the principle of fairness to supply the core of a +justification, but to supplement it with appeals to natural duty and +the common good (2006, chap. 5).
+ ++As yet there has been little reaction to these attempts to create +hybrids and to draw on multiple principles in the attempt to provide a +satisfactory theory of political obligation (but see Edmundson 2004, +pp. 250–52). Those who doubt that such a theory can be +constructed, however, are likely to say that combining principles, +whether in hybrid or pluralist fashion, will not help, for combining a +set of principles that are unsatisfactory individually will hardly +produce a strong and satisfying theory (Simmons 2007, n. 17). Whether +a plurality of principles is necessary or even desirable, in sum, +remains one of many open questions with regard to the vexing problem +of political obligation.
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+ +-
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