Aaron Ross Powell | Free Thoughts Blog

Last time I looked at the natural duty to obey the state because of what obedience gets us. This time I want to address another form the theory of natural duty can take: A general duty to obey just institutions.

In times past, this often mean the divine right of kings. God ordained that this person is the ruler and who are we to argue with or disobey God? Few argue that anymore, though. Instead, we’ve replaced the “right to rule” with the “duty to be ruled.” If a given institution processes certain characteristics, we have a moral duty to obey the commands it gives us.

After fair play, natural duty is, for instance, John Rawls’s preferred theory. Rawls admits that we can’t have a duty to obey the state unless we did something to create that duty (so fair play, consent, or another affirmative act). However, each of us has a general moral duty of justice. We much each behave justly, just as we must each keep promises, not steal, not murder, and so on. So far, there’s little to disagree with. It’s the next move, however, where Rawls raises natural duty–and where the controversy comes. That moral duty of justice, he writes, “requires us to support and to comply with just institutions that exist and apply to us.”

What this means is that if we find ourselves within the claimed jurisdiction of just institutions (within the borders of the United States, say) then our pre-political moral duty of justice compels us to support those institutions. In this case, “not obeying” is seen as a form of “not supporting,” and so we thus have a moral duty to obey.

Variations on this include a duty of non-interference. After all, just because something is good, it isn’t immediately clear I have a duty to support it. If I have a moral duty to be kind, for example, I don’t automatically have a moral duty to support your acts of kindness. But, if your acts of kindness are genuinely kind, then I probably should refrain from interfering with them. This is William A. Edmundson’s argument in “Legitimate Authority without Political Obligation.” He writes,

There may be no general, even prima facie, duty to obey the laws of a state, not even those of a just state; but there is a general prima facie duty not to interfere with the bonafide administration of the laws of a just state.

The way this gets us to something indistinguishable from political obligation is in the conclusion that non-interference includes going along with any punishment the state gives you as a result of you “interfering” with the administration of its laws by not obeying its commands. If I violate the state’s law, by not allowing myself to be sent to jail, I’m “interfer[ing] with the bonafide administration of the laws of a just state.” In this way, Edmundson’s “non-interference” and Rawls’s “support” mean pretty much the same thing: If institutions are just, you have a duty to do what they tell you to.

In assessing these arguments, let’s grant a large portion of them up front. Namely, we’ll assume that these institutions seeking our obedience are, in fact, just. It’s a capitulation I’ve made before in this series and it’s done to keep from having to repeat over and over a particular kind of libertarian counter argument. If it’s true that we never, under any circumstances, have a duty to obey an unjust state (we needn’t ever obey the Nazis, for instance), then for every argument for political obligation, the anarcho-capitalist libertarian can response, “Whatever. No state is ever just.” That may be true. But the point of these series is to show, in part, that even if we grant the justness of a state, the arguments for obligation still don’t work.

Okay, so our imaginary state is perfectly just–or just enough that whatever injustice it displays isn’t enough to entirely undermine its claims to authority. How far does natural duty then get us?

In both the Rawls and Edmundson versions, the old issue of particularity again potentially messes things up. Let’s say that only the United States is just. This would mean, of course, that those of us living within the U.S. have a duty to obey–but it would also mean that everyone living outside the has the same duty. And that doesn’t seem right.

It gets even weirder if more than one government can (rightly) claim to be just. If the natural duty account is accurate, and I have a duty to obey just insitutions, then I might find myself having to obey more than one goverment. We can quite easily imagine a situation where the (just) nation of Canada decides that it will exercise authority over North Dakota, which until now has been exclusively part of the (just) nation of the United States. Especially if Canada is more just than the U.S. the natural duty theory would seem to say that residents of North Dakota ought to obey (support, not interfere with) Canada–if they can’t just obey both.

Obviously, the U.S. government won’t go for that and will claim that, regardless of Canada’s claim to greater justice, North Dakota belongs to the United States. But governments are just collections of people, after all, each (presumably) with a moral duty of justice, a duty which includes supporting/not-interfering with just institutions. So natural duty here would mean that the members of the United States government ought to, in this case, obey Canada’s laws, and not their own.

Some have argued that there’s a special relationship between a nation and “its” people, such that Canada is always more just in relation to people geographically within its borders than any other country, while being less just for citizens of non-Canadian nations. Canada is, after all, uniquely aware of the needs of Canadians in a way that Mexico isn’t.

But again, this seems odd. A resident of northern North Dakota might justifiably feel he has more in common with residents of southern Manitoba than he does with the legislators 1,500 miles away in Washington, D.C.

Further, one thing all states claim as part of their authority is the right to prevent new nations from arising within their borders. I can’t start a new country in my neighborhood of Alexandria, Virginia and say I now only have a duty to obey it–even if it happens to be more just and attuned to my needs than the United States. But why not?

Let’s go back to Rawls. Our natural duty of justice, he wrote, “requires us to support and to comply with just institutions that exist and apply to us.” I’ve emphasized two of the more troubling words. Because justice isn’t binary. An institution–a state–isn’t either “just” or “unjust.” Every reasonably good, existing institution contains a bit of both.

Now of course I can’t “comply with” a non-existing institution, but I can support one. That’s what America’s founding generation did when they rebelled (i.e., failed to comply with) from Great Britain to support a new institution–the (eventual) United States of America.

As should be clear, despite any initial appeal it may have, the natural duty account of political obligation fairs no better than the other four major theories.

We come at last to the final of the five major theories of political obligation. I’ve looked at consent, gratitude (in two parts), fair play (again in two parts), and associations. Last up is natural duty, which holds that certain (kinds of) people or institutions may rule us not because of anything we did or anything they did specifically for each of us but because of characteristics they happen to have. In other words, the ruler or state (assuming it possesses necessary traits) may demand our obedience and we simply have a duty to comply.

As was the case with the other theories, natural duty can take more than one form. In this post, I’ll look at whether we might have a duty to obey the law because doing so is the only way to fulfill another moral duty. For example, in an ideal utilitarian system we might find ourselves politically obligated because a legitimate state maximizes utility. The state has the characteristic of maximizing utility, in other words. We’re better off having a government we all obey than not–and each of us has a moral duty to do what best supports the better-off-ness of the world.

This initially seems pretty persuasive. If utilitarianism (or some other form of consequentialism) is right and if obeying the law leads to good consequences, then it necessarily follows that we’re morally bound to obey the law. Few of us feel it’s morally right to actively make things worse, after all.

I’ll leave the first if–whether consequentialism/utilitarianism is right–alone. I’m not convinced it is, but we can proceed without getting into that because even if morality flows only from the outcome of actions, political obligation doesn’t necessarily follow.

Clearly having just any state doesn’t maximize utility. We can easily imagine downright awful states that, if they existed, would make us worse off than having no state at all. Likewise, it may well be the case that the state claiming authority over me right now, perhaps because I happen to live within its borders, is worse from a utilitarian standpoint than the state next door. So why should I obey the former and not the latter?

Also, clearly not everything even reasonably beneficent states do makes us better off. Utilitarianism might lead me to a duty to support publicly-funded education, but am I obligated to support the war on drugs, too?

This leads to two questions about the utilitarian account, neither of which has a clear answer. First, how do we know what laws, when obeyed, will create the best consequences? After all, that’s what much, if not most, political debate deals with. Maybe by obeying this law, whatever it happens to be, I’m making the world worse than if I disobeyed.

Second, in light of how fleeting certainty is on matters of utility, who gets to decide? Why does whoever happens to claim power right now get to override my judgment about utility maximization with his own? He might have been elected to that role by some political process, but what if I didn’t consent to that? Because if it turns out I’m right about what maximizes utility and the elected ruler isn’t, then following him won’t just harm me and others–it’ll also be morally wrong.

There’s an even bigger problem, however. Remember that what we’re looking for in this series is political obligation, not moral obligation. That we have moral obligations is, I hope, uncontroversial. A political obligation is something we’re duty bound to do not because doing so is morally right but because these state tells us to. Using my standard example, murder is a moral wrong, not because it’s against the law, but because it’s morally wrong to commit murder. Thus the prohibition on murder isn’t, strictly speaking, a political obligation–even if by following it I’m “obeying” the law.

Thus if the utilitarian account says that we should do certain things the state tells us to because doing them would maximize utility, then we have a moral duty to do those things even in the absence of the state. It’s not clear, then, how the utilitarian account is even, at its root, an argument for political obligation.

Next time I’ll turn to the other contemporary form of the argument from natural duty: the duty to support just institutions.

Karen Klein is, as I’m sure you’ve all heard, the Greece, New York bus monitor who, after video of her being cruelly bullied made it onto the internet, reaped a windfall of emotional support from people all over the world.

She’s getting windfall profits, too. Someone on the crowdsourced funding site Indiegogo launched a campaign to send Klein on the “vacation of a lifetime.” With 29 days to go, Klein’s well on her way to much more—a lifetime of vacations. The campaign, as I write this, has collected $542,009, and more is pouring in at a rapid clip.

There’s nothing wrong with that. In fact, it warms my voluntaryist heart to see people, without government coercion, giving to support a complete stranger. This is the sort of giving I think we’d see more of if the state weren’t crowding it out.

But then came this. A well-meaning supporter of Klein’s, feeling like she should get every penny donated to her and believing—erroneously, it turns out—that the government would tax away a large chunk of her windfall, set up a petition to have President Obama “use his executive power to grant Karen Klein a waiver of all income taxes and any other federal taxes that would apply to the funds being donated to her through this fund.”

Of course, Obama doesn’t possess such an executive power and the small gifts aggregating to Klein’s enormous reward aren’t taxed anyway. But the very fact that this petition existed, that it garnered 7,624 signatures before ending, and most strikingly the motivations supporters articulated for signing it all add up to an awesome display of cognitive dissonance.

Jairo Navarrete says she signed because Klein “deserves every penny.” Ashley O’Brien says, “I do not believe that Karen should have to pay taxes on this money, it is being donated to her for very good reason and she deserves ever [sic] single cent of it.” And so on. “Deserves” shows up constantly throughout the comments.

Which is awfully weird. Here are thousands of people basically making the argument that if earnings are deserved, they shouldn’t be taxed—which implies that if earnings are (legitimately) taxed, they aren’t deserved.

I assume nearly every petitioner earns a paycheck somehow, out of which the government takes some cut in taxes. Does this mean all these people feel their own earnings are undeserved? How are we to distinguish between deserved and undeserved profits?

Shannon Kaopuiki, another signer, hints at an possible answer. “People are wanting to help Karen so she should be able to get every last cent,” Kaopuiki writes. “She deserves all the money that people want to give her.”

So deserved earnings are those that people wanted to give you. That I can get behind. In fact, it’s roughly the foundational theory of the free market economy. Sellers offer up their goods and services and buyers, wanting those goods or services more than they want the amount of money equal to their price, voluntarily hand over cash for them. A mutually beneficial exchange occurs.

Except a great many folks out there don’t think the profits arising from voluntary transactions are deserved—at least not if “deserved” means in part that the government shouldn’t collect taxes on them. “He deserves all the money that people want to give him,” wasn’t the typical response to Eduardo Saverin, after all.

And this is strange because, when we get down to it, it seems that perhaps capitalists deserve their earnings more than Klein does. What happened to her was awful and it’s wonderful that people want to help her out. But she didn’t give those people anything in return for the $542,009 (and growing!) she’s gonna get. Business men and women, on the other hand, don’t just have their earnings voluntarily given to them. They also gave something voluntarily back in return. Further, because the buyers were willing to give their money to the sellers, the buyers must have valued what the sellers gave them even more than they valued the given-over money.

Maybe I’m reading cognitive dissonance into a situation entirely lacking it, though. Maybe the sentiment being expressed in the Karen Klein petition is, rather, that all deserved earnings shouldn’t be taxed and that almost all of us deserve our earnings. If that’s true—if that’s what so many people believe—then the future’s looking a lot more libertarian than I thought.

Our trek through the major theories of political obligation continues as we now move on to the association account.

It’s probably easiest to think of association theory as the “We’re all Americans” version of obligation. If you live in the United States, you’re an American, meaning you’re part of this thing called America, which is both the collection of all citizens and bigger than all of us. And being an American means respecting and obeying America’s institutions, including its laws.

This sets association apart from the other theories we’ve looked at. With fair play and gratitude, for instance, political obligations arise because of something we’ve done—whether accepting benefits or voluntarily participating in a cooperative scheme. With association, the obligations flow from who we are. Association theorists thus often draw parallels between country and family. As a father, I have obligations toward my daughter not because of some agreement we entered into or because I gained in some way from her. I have obligations to her because I am her father. Association simply applies this same sort of thinking to the state. Having political obligations is just part of what it means to be a member of the community. Given that our membership isn’t something most of us chose (we were instead born into it), our political obligations don’t flow from our choices, either.

This account depends on a number of assumptions, none of them particularly plausible. First, we very likely do have obligations arising from our role in our families, among our friends, or even in our very local community. But it’s not at all clear that the state is an association of a kind with those others. I don’t have a relationship with most Americans—let alone with Congress, the President, and the administrative agencies—that in any way parallels the relationship I have with my wife, my daughter, my parents, my friends, and my neighbors. In fact, when the state does try to act as if such a relationship exists (take Michelle Obama’s call that we all sign a father’s day card for her husband), it comes off as almost creepy.

Second, if political obligations flow entirely from community standards (“You’re an American, and Americans support their government.”) then it seems they bind us to the state no matter how bad it is. We might luck into a state that’s reasonably just, but we might just as easily have found ourselves politically obligated to turn over our peers to Stalin or to send Jews to the gas chambers. If the response is that of course you can’t be politically obligated to do that, then we’ve introduced moral standards outside of the association—and why can’t those moral standards include a prohibition on being obligated to a state involuntarily? It seems that, no matter what, we want some way to become unobligated to obey the state if the state grows bad enough. And this opting out shouldn’t be limited to “Love it or leave it.” For why, if the government behaves sufficiently unjustly so as to lose my obedience, should I also be forced to abandon my (true) community of my family, friends, and neighbors?

I don’t want to completely dismiss the strong feeling many of us have that we are, in fact, obligated to obey our government and that those obligations arise from it being the government of our country. The association theory matches quite well the unstated reasoning that leads most citizens to respect the will of the state. But those feelings by themselves don’t settle the issue. We might, after all, be mistaken in our emotion. And, at the very least, we want to leave open the option to back out of our obligations should the government change sufficiently that it no longer represents the America we’re a part of.

I’ll close with this passage from a paper by A. John Simmons, our most important contemporary philosopher of political obligation.

Absent any compelling argument for general political obligations (of the sort to which traditional theorists aspired), and absent any compelling argument for the independent binding power of local rules requiring obedience and support (of the sort to which proponents of the normative independence thesis aspire), it seems plausible to dismiss as a kind of false consciousness our feelings of obligation toward our countries of birth or residence. Of course we identify ourselves with “our” countries, “our” governments, and “our” fellow citizens. We have typically been taught from birth to do so, have typically spent our lives in a particular political culture, have been identified with a particular community by those outside our own (for purposes of praise or blame, say), and have associated with and become used to our own ways. That I might feel shame or pride at the acts of my countrymen (or that I might vote in elections and obey the law) is hardly surprising under these conditions. But none of this identification (along with its accompanying feelings of obligation) none of these ways of speaking and acting-seems, considered by itself, in any way inconsistent with denying that we are morally bound by political obligations to our countries of residence.

The appearance of authority must never be mistaken for the real thing.

Fair play says we’re politically obligated because we all benefit from the collective sacrifices of our fellow citizens and so it’s only fair we return the favor. Going back to H. L. A. Hart,

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.

Fair play thus differs from the gratitude account chiefly in who it says we owe obligations to. Gratitude has us owing obligations to the state because it was the state that gave us benefits. Fair play, on the other hand, has us owing obligations to our fellow citizens because of their sacrifices which gave rise to the benefits provided by the state.

In my last post, I explored fair play in some depth. Today, continuing my series on political obligation, I want to address whether it successfully gets us to a duty to obey the state.

To fully evaluate fair play means asking a series of questions. First, does it even work? Does a sense of fair play (in general, and not limited to issues of politics) create moral obligations? Second, if it does–if cooperative schemes can give rise to obligations–what counts as a cooperative scheme? Does the state? Third, if the state is a cooperative scheme, does the obligation it creates look like broad political obligation? Or are we only obligated to some aspects of the state and not to others? Forth and finally, assuming the state is an obligation creating cooperative scheme, does fair play lead us to think we necessarily must discharge our duties by obedience? Or, instead, are we obligated to the state in some much more minimal sense?

It seems obvious that there are instances where a sense of fair play creates moral obligations. If a bunch of friends take a road trip together, and everyone pays for gas, when it’s your turn to pay you probably have a moral obligation to do so. (Assuming, of course, that you weren’t coerced into going along, that you didn’t discuss alternative arrangements ahead of time, and so on.) Similarly, if your neighbor helps you move, it’s only fair that you return the favor in the future.

So “fairness” can create obligations. Few dispute that. The question is whether the state is the sort of thing fair play applies to.

Remember, fair play, according to Hart, applies to “joint enterprises”–or, as they’re more commonly called in the literature, “cooperative schemes.” Roughly speaking, these are collective activities, requiring some degree of sacrifice from the members, that create benefits for everyone who participates. Participation can take the form of simply enjoying the benefits (you “participate” in the road trip cooperative scheme by being transported across the country, not by choosing whether to pay for gas). And we probably want to add a requirement of reasonable justness, too. It would be awfully odd indeed if fair play obligated us to obey a genocidal, totalitarian regime simply because we in some way benefit from it.

But here’s the thing: the modern state just isn’t a cooperative scheme, at least not of the sort the fair play argument speaks to. It simply strains credulity to look at Washington with its countless regulatory agencies and competing welfare programs for the poor and rich and see it as meaningfully similar to a potlatch dinner, a neighborhood watch, or a community garden.

Some parts of what the state does might fit the definition of “cooperative scheme,” of course. But then any obligations fair play creates would be limited to respecting those. Fair play wouldn’t lead to a general duty to obey every law the state creates and pay every tax it levies–even though that’s precisely what our government demands of us.

Further, recall that “reasonable justness” requirement. Even if I benefit broadly from the state, fair play likely doesn’t obligate me to obey or support it if the state is unjust. So before fair play can even get off the ground, we need to first agree that the state, in its current form or something similar to it, is reasonably just. Clearly, I think, our current government isn’t. There’s nothing just about the federal war on drugs. There’s nothing just about the bank bailouts or drone strikes murdering grieving Pakistanis. Unless fair play gives rise to obligations no matter how unjust the state, there’s much work to be done before we can safely use it as a legitimating argument for the government we’ve got.

Keep in mind, too, that fair play isn’t meant only to get us to a duty to pay taxes (though it likely fails even at that). True political obligation means a duty to obey the law. And there the link with fairness seems fuzzier.

If fairness means “contributing our fair share,” does that apply to something like a law against using recreational drugs? It’s difficult to see how. What would it mean to “contribute my fair share” of not taking drugs for personal pleasure? In other words, is fairness (at best) limited to obligations to contribute to the provision of public goods? It seems so.

Like so many of the theories we’ve looked at so far, fair play, if it works to create obligations, certainly doesn’t create the kinds of obligations necessary for the modern state as we know it. It may tell me that I’m obligated pay back my fellow citizens (in some way) for public goods I’ve benefited from, but it’s not clear how it gets me to a duty to obey the law, and it seems to do nothing for most of the government programs I’ve not benefited from or are actively harmful to me.

With only two theories left–association and natural duty–the prospects of finding a way to ground robust political obligation narrows. The trouble of state authority remains an open question.

We’ve added a new video to Libertarianism.org featuring Nathaniel Branden discussing self-esteem and libertarianism.

Branden is a psychotherapist and writer known for being both the founder of the self-esteem movement in psychology and a former associate of Ayn Rand.

In this lecture given at a Libertarian Party of California event in 2000, Branden talks about the connection between the workings of free-market capitalism, the self-esteem movement, and the Information Age. In his words, “entitlement robs people of the sense of self-reliance” and the self-esteem that comes with that sense of independence.