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Jun 6, 2012

What’s Fairness Got to do with Obeying the Law?

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.

This is part of a series