The Possibility of Legitimate States, and the Threat of Philosophical Anarchism
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The Possibility of Legitimate States, and the Threat of Philosophical Anarchism Abstract: Philosophical Anarchism holds that actual states do not have legitimate political authority, nor are states with such authority even conceptually possible. While many find this thesis hard to swallow, it logically follows, however, from two relatively plausible premises, namely, the Legitimacy Thesis and the Denial Thesis. The aim of this paper is to resist the claim of the philosophical anarchist. I do so by undermining the various arguments put in favour for the Legitimacy Thesis and the Denial Thesis. In place of the Legitimacy Thesis, I recommend that we adopt what I call the Respect Thesis. This thesis, it will be argued, escapes some of the problems facing the Legitimacy Thesis, and benefits from capturing the very motivations for the latter. Crucially, if my arguments are successful, one then has reasons not to succumb to the position of the philosophical anarchist. Introduction1 Although many in our world today continue to live in military regimes, while others labour under so-called benevolent dictatorships, it appears intuitive, self-evident even, that states with legitimate political authorities are possible. Indeed one wants to go further and claim that actual states fulfil this criterion. This widespread view—held, almost invariably, by those living in, as well as those contemplating, liberal democracies—is challenged by the following set of propositions:2 (Legitimacy Thesis) A state, X, has legitimate political authority only if those subjected to its jurisdiction have a moral obligation to obey the law. (Denial Thesis) It is not the case that we have a moral obligation to obey the law. (Philosophical Anarchism) So, no actual states have legitimate political authority, nor are such states even possible. There exist two notable arguments in favour of the Legitimacy Thesis, namely what I'll call the non-instrumental argument, and the instrumental argument. The non-instrumental argument, very roughly, says that if to have legitimate political authority is to have the right to rule those who are under one’s jurisdiction (Simmons 1979: 195-196), and given the correlativity between rights and obligations (Hohfeld 1917), then the proposition that a state possesses legitimate political authority would entail the proposition that its subjects have a corresponding moral obligation to obey its demands. The instrumental argument, on the other hand, holds that if the essential function of a legal order is to regulate human behaviour 1 ∗ This paper has benefited from the close supervision I received from Dr Elinor Mason and Dr Campbell Brown (both from the University of Edinburgh). I must also thank Brian Pollex, the editor of Arete, for the many insightful comments he has very generously provided on an earlier draft of this essay. Due to my own limitations, I regret not being able to answer all of Brian’s worries in a more robust manner. 2 See also Edmundson 2004: 218. Arete (Kelsen 1967: 31), and if a legitimate political authority must in fact be successful at regulating human behaviour, then such a function could not be successfully carried out unless legal subjects possess the moral obligation to obey the law. For centuries, philosophers have assumed that we have a moral obligation to obey the law; and that the intellectual focus should instead be on how one might justify such an obligation (i.e. the “problem of political obligation”). However, a number of contemporary academics, impelled, perhaps, by the political turmoil in America during the 1960s and ‘70s, have come to deny that we possess such an obligation. Indeed, these writers make the stronger claim that we owe no such moral obligations regardless of how just a state might in fact be. Their sceptical stance constitutes what I call the Denial Thesis. Given both theses, one is led to a conclusion that denies the possibility of legitimate political authorities, or what has come to be known as “philosophical anarchism”. The aim of this paper is to resist the thesis of the philosophical anarchist. I do this by arguing against both the Legitimacy Thesis and the Denial Thesis. In section 1, I begin by first considering the Denial Thesis. While subsection 1.1 is devoted solely to explicating the concept of an obligation to obey the law, the remaining subsections will critically consider the numerous arguments for the Denial Thesis. It is important to note that my aim in section 1 is to merely present a defence of the claim that we have a moral obligation to obey the law. It is beyond the scope of this essay to adjudicate between the various positive attempts at justifying why it might be the case that subjects of a state have such an obligation (e.g. consent theories, theories of natural duties, etc.). Considering the ubiquity of the intuition that we do have an obligation to obey the law,3 (Tyler 1990; Klosko 2005: 181-222), the burden of proof falls squarely on the sceptic. If the sceptic’sal arguments can be compromised, then I will have shown that we have better reason to at least withhold from, rather than assent to, the Denial Thesis. Section 2 is devoted to demonstrating the falsity of two arguments for the Legitimacy Thesis. I begin my critique, in subsection 2.1, by first showing that the instrumental argument for the Legitimacy Thesis is not cogent. Moving on, I note that the Legitimacy Thesis appears to manifest itself more as a received doctrine than a claim that has been robustly argued for. Of the many authors who seem to treat the thesis as self-evident—Anscombe, Wolff, Smith, Simmons, Green, Soper, among others—Raz has provided what appears to be the best non- instrumental argument for the Legitimacy Thesis.4 His account of the Legitimacy Thesis, then, will be treated in subsection 2.2. There, I will try to show that even the best extant argument for the thesis, i.e. Raz’s, fails to be fully convincing. Finally, in subsection 2.3, I will offer a suggestion on how the Legitimacy Thesis might be modified so as to not only escape the problem besetting Raz’s argument, but to also capture the motivations behind the doctrine as originally conceived. 3 In his research, social psychologist Tom Tyler reports that 82% of 1,575 people interviewed agreed that we should even obey laws with which we might disagree (1990: 46). But cf. Green ([1996]1999). 4 Other less plausible non-instrumental arguments for the Legitimacy Thesis were proposed by Carnes (1960) and Pitkin (1966). The Possibility of Legitimate States, and the Threat of Philosophical Anarchism §1 §1.1 The obligation to obey the law bears the following features. First, the obligation is a “prima facie”5 one, in that the reasons it generateare not conclusive. Reasons generated by “prima facie” obligations are liable to being overridden by countervailing reasons. Second, the obligation to obey the law is “general,” that is, the obligation applies to all legal norms, including those that do not impose obligations, such as norms that confer powers, liabilities, and so forth. Admittedly, it may seem unnatural to speak of an obligation with regards to the latter set of legal norms; but insofar as one cannot understand, say, the significance of the power to contract without understanding that it gives rise to an obligation to perform some act, the obligation to obey the law, then, does not merely undergird only those norms which impose obligations. Third, the obligation is “content-independent,” in that the existence of the obligation is not dependent on the merit of the particular law in question (Edmundson 2004: 216). This aspect is often expressed as the “obligation to obey the law qua law”. The content- independent obligation pre-empts the subject’s own assessment of the moral merits of the action required by the law. In what follows, whenever I write of the obligation to obey the law, readers should assume that this phrase makes reference to the three characteristics of such an obligation that I’ve outlined above. Finally, I assume that there exists an obligation to obey the law only if that specific legal institution, and the state that it serves, are sufficiently just.6 Should this requirement not obtain, then, “all bets are off”. §1.2 The first objection to the existence of a moral obligation to obey the law can be framed in terms of a dilemma: P1. Either law L conflicts with morality or it does not. P2. If L does not conflict with morality, then the obligation to obey L would be redundant. P3. If L conflicts with morality, then there is no obligation to obey L. C. So, the obligation to obey L is either redundant or there is simply no such obligation [P1;P2;P3]. The above dilemma may be resisted may objecting to both P2 and P3. Let us first show P2 to be false. Among the law’s numerous functions is its instrumentality in solving co-ordination problems (Finnis 1980, 1989; Coleman 1989; Raz 1994: 247). Given that practical reasoning reveals a number of equally worthy courses of action to undertake (e.g. whether to drive on the left or right hand side of the road) there arise coordination problems, which “the law solves by making authoritative selections from among them [courses of action] for the community to adopt” (Aiyar 2000: 478). While practical reasoning may provide no reason as to whether or not I should drive on the left or right hand side of the road, the law intervenes by making it the case that all road users should stick to the left hand side of the road, such that I'm now obliged to comply with the law’s dictate.