## 1. Legitimate Authority, de facto Authority and Political Power




Let us start with the distinctions between political authority as a
normative notion (or morally legitimate authority) and political
authority as a non-normative notion (or *de facto* authority)
and between political authority in either of these senses and political
power. To say that a state has authority in the normative sense is to
say something normative about the relationship between the state and
its subjects. This is the relationship that we will concentrate on in
what follows.




For most contemporary theorists to say that the state has authority in
the descriptive sense is to say that the state maintains public order
and that it issues commands and makes rules that are generally obeyed
by subjects because many of them (or some important subset of them
such as the officials of the state) think of it as having authority in
the normative sense (Hart 1961) (Some thinkers have understood the
idea of legitimate authority in this descriptive sense as well (Weber
1970); in what follows, we will use the term "legitimate
authority" in a normative sense only.) We should note here that
the attitudinal component of *de facto* authority is not
accepted by everyone. For both Thomas Hobbes and John Austin,
political authority in the *de facto* sense simply amounts to
the capacity of a person or group of persons to maintain public order
and secure the obedience of most people by issuing commands backed by
sanctions. Subjects need not think of the authority as a legitimate
authority, on this account.




Also, the distinction between *de facto* and morally
legitimate authority is not universally accepted or at least it is not
accepted that the distinction makes a difference. Hobbes insists that
any entity capable of performing the function of *de facto*
authority is necessarily justified and deserves the obedience of the
*de facto* subjects (Hobbes 1668). But most have argued that
there is an important distinction between *de facto* authority
and legitimate authority. We will explore in what follows the
conceptions political and legal philosophers have had of legitimate
political authority.



*De facto* authority, on anyone's account, is distinct from
political power. The latter is concerned with the state's or any
agent's ability to get others to act in ways that they desire even when
the subject does not want to do what the agent wants him to do.
Political power does not require any kind of pro attitude toward the
agent on the part of the subject, nor does it require that the state is
actually successful at securing public order. It operates completely in
the realm of threats and offers. No doubt for the state to have *de
facto* authority or legitimate authority requires that the state
have the power to compel those subjects who do not wish to go along.
This is necessary for the state's ability to maintain public order and
to assure those who do see it as an authority that it will be able to
do what it is supposed to do.


### 1.1 Legitimate Political Authority: Some Conceptual Distinctions




The rubric under which the normative notion of political authority
is normally known is the idea of legitimate political authority. In
this section, we will review a number of different ideas that have been
understood to come under this idea of legitimate political
authority.




It is important here to note the distinction between theoretical and
practical authority. A theoretical authority in some area of
intellectual inquiry is one that is an expert in that area. Theoretical
authorities operate primarily by giving advice to the layman, which
advice the layman is free to take or not. The judgments of theoretical
authorities give people reasons for belief while the judgments of
political authorities are normally thought to give people reasons for
action. Theoretical authorities do not normally impose duties on
others, although they might give advice on what a person's duty is.




Most theorists of political authority view it as a species of
practical authority rather than theoretical authority, though this
view is not held by all . Those who hold that political authority is a
species of practical authority maintain that political authorities
issue directives that give people reasons for action and not reason
for belief. The thought is that political authorities impose duties on
their subjects and thereby give them reasons for action. These
theorists argue that it is the function of political authorities to
get people to act in certain ways so as to solve various collective
action problems such as a variety of different types of coordination
problems, assurance problems and free rider problems. There have been
some dissenting views on this of late. Some have argued that the
account of practical reason required by the idea that political
authority is a practical authority is incoherent and so they have
opted for the idea that political authorities, when legitimate, are
theoretical authorities regarding the existence and nature of the
duties and reasons for action that people have (Hurd 2001). Since this
view is unusual this entry will concentrate on conceptions of
political authority that treat it as a species of practical
authority.




The rest of this section will discuss a number of different analyses
of political authority. There are three basic types of conceptual
account of legitimate political authority: legitimate political
authority as justified coercion, legitimate political authority as the
capacity to impose duties, and legitimate political authority as the
right to rule. First, many people have understood legitimate political
authority as a political authority that is justified in coercing the
subjects of its authority. The notion of justification here is a moral
one. The thought is that a political authority might have moral
justification in coercing those who come under its authority. This is
a particularly thin conception of legitimate authority. For instance,
a state can have this kind of authority when it legitimately occupies
a territory as a result of a just war. It is morally justified in
coercing the inhabitants of the occupied territory.




The moral justification of a group of people in coercing others may
be more or less systematic. For instance, a group of people may be
morally justified in engaging in just a few actions of coercing others.
Or a group may be morally justified in engaging in coercion more
generally as in the case of a morally justified military
occupation.




This notion of authority need not involve duties on the part of the
population that is being coerced. Indeed, they may be justified in
trying to escape coercion. This could be the case in a military
occupation of a country that is justified on the grounds that it is
necessary to stop a third country from engaging in morally indefensible
aggression. This conception of morally justified coercion therefore
involves no conception of a moral community among persons. In this
first conception of authority as justified coercion, the authority may
not even issue commands let alone make laws. It may simply justifiably
issue threats and offers. The difference between legitimate and
illegitimate political authority on this account is that the actions of
the illegitimate political authority are not morally justified while
the coercive actions of the legitimate authority are justified.




A second conceptual account of legitimate political authority
implies that those over whom authority is exercised have some kind of
duty with regard to the authority. Or the authority has the moral power to
impose duties on the subjects. This duty can be merely a duty not to
interfere with the activities of the political authority. Or it can
involve the more significant duty to obey the authority. This
conception of authority involves the authority and the subjects in a
weak kind of moral relationship. The authority is justified in issuing
the commands and attempting to force people to comply with the commands
while the subjects have some kind of duty not to interfere with these
activities or comply with the commands.




The duty of the subjects need not be owed to the authority. It may
merely be that the subjects have a duty to obey where that duty is not
owed to anyone in particular or where that duty is owed ultimately to
people who are not the authority. For instance, if one thinks that one
is likely better to respect others' rights by complying with the
authority's directives, the action is ultimately owed to those
others.




Some have stressed the idea that the holding of justified political
authority may only involve a duty on the part of others not to
interfere with the political authority and they argue that the duty of
non-interference is much weaker than a duty to obey (Morris 1998). It
is not clear how great the difference between these two duties is in
practice at least as far as citizens are concerned. For many cases of
failing to obey an authority are cases of interference with the
authority. An analogy may be helpful here. If one is playing a game of
baseball with an umpire and one refuses to comply with the directives
of the umpire, one is in effect interfering with the umpire's carrying
out of his duties by not complying with the directives of the
umpire.




While a duty to obey seems to imply a duty not to interfere, there
are cases of duties of non-interference that are not duties to obey,
such as the duties of foreign powers not to interfere in the activities
of a legitimate state. Furthermore, the duty to obey is clearly the
more contentious issue in the question of authority since it requires
that one make one's actions conform to the specific directives of the
authority.




A third conceptual account of authority or set of conceptions of
legitimate authority involves the idea that the authority has a right
to rule. Strictly speaking, an authority can have a right to rule
without the subjects having a duty to comply. The authority may have a
"justification" right to rule (Ladenson 1980). This means
that the authority has a permission to issue commands and make rules
and coerce others to comply and its possession of this right is
justified on moral grounds. This "justification right" is
not much more than the first notion we discussed above.




A more robust right to rule includes a duty owed to the authority on
the part of the subjects not to interfere with the activities of the
authority. The subjects owe it to the authority not to interfere with
it. This is connected with the right of the authority to rule. Finally,
an authority can have a right to rule in the sense that it may issue
commands and make rules and require subjects to comply with these rules
and commands and the subjects have duties, which they owe to the
authority, to comply with the rules and commands.




The distinction between a right to rule that is correlated with a
duty not to interfere and one that is correlated with a duty to comply
comes in handy when we consider the difference between the duties owed
to a legitimate political authority by the subjects of that authority
and the duties owed to it by other states and persons who are not
subject to that authority. A state with a right to rule in the
strongest sense may be owed obedience by its subjects but it is usually
owed only a duty of non-interference by those who are not a part of the
state such as other states and persons in other states. It is
worthwhile drawing a distinction here between internal legitimacy and
external legitimacy (Buchanan 2004).




It is not a useful aim of philosophers or political thinkers to
determine which one of these conceptual accounts of political
authority is the right one. Each one of them grasps a kind of
legitimacy of political authority that is worth taking into account
and distinguishing from the others. The idea of legitimate authority
as justified coercive power is a suitable way of getting at the
authority of hostile but justified occupation powers. And the idea of
legitimate authority as an authority that has a right to rule over
subjects who owe obedience to the authority and that has a right not
to be interfered with by foreigners is surely an importantly distinct
and perhaps ideal type of authority, which is rarely implemented. The
kind of legitimacy that is merely correlated with duties to obey or
not to interfere is a useful intermediate category between those
two.




What is worth noting is that the idea of legitimate authority as a
right to rule in the strong sense described above does describe a kind
of ideal of political community. The idea of legitimate authority as a
right to rule to which citizens owe obedience gives each citizen a
moral duty to obey, which it owes to the authority. So this form of
legitimacy is grounded in a moral relationship between the parties that
goes beyond the fact that they are fellow human beings. The
establishment of a robust right to rule depends on the fact that each
citizen rightly takes as a reason for obedience that it has a moral
duty owed to the authority. Since a legitimate political authority with
a right to rule is predicated on the fact that citizens have moral
reasons grounded in the right to rule to obey it, the right to rule
engages citizens at a deep moral level. The exercise of political power
is founded in a moral relationship between moral persons that
recognizes and affirms the moral personality of each citizen.




By contrast, a society in which it is *merely* the case that
coercion is justified is one in which the subjects are permissibly
treated as means to morally defensible purposes. The subjects do not
owe anything to the authority or have any duties to obey it. So, in the
case of an authority as merely justified coercion, the subjects'
reasons for obedience are merely their desires to avoid punishment. And
that is the level at which the authority deals with them. Such a
society does not engage the subjects as moral persons, it merely
attempts to administer the activities of persons so as to bring about
in a morally justified way a desirable outcome. At the extreme, a
prisoner of war camp or even a hostile but justified military
occupation gives the authorities justification for coercion. The people
who are subjected to that treatment often have no duties to obey and
they do not regard each other or the authorities as members of a
unified political community. They are merely fellow human beings. To
the extent that a political society is best when it involves the mutual
recognition and affirmation of the moral status of each person, the
kind of society that involves merely justified coercion of some by
others is a pale shadow.




And the intermediate form of political authority is incomplete in
the respect in which the exercise of political power involves the
mutual recognition and affirmation of the status of each person. It is
the case that subjects have duties but those duties are not essentially
connected to anything in the authority. The subjects instead act more
in accordance with reasons that are independent of the authority when
they obey the authority. So to the extent that a society ruled by an
authority that has the right to rule is an ideal of a moral community,
the other types of authority are lesser forms of a morally ideal
political community.


### 1.2 Political Authority and Different Kinds of Duties of Obedience




To the extent that a duty of obedience is included in the concept of
political authority, there can be different forms of obedience on the
part of subjects. This implies a very distinct dimension of political
authority. When a political authority issues a command and the subject
has a duty to obey, what is the nature of this duty? One might have a
duty to obey a command merely because it commands the subject to do
something that is just and any alternative action would be unjust. Here
the duty to obey would depend on the content of the command. Commands
that are unjust or perhaps even commands that require actions that are
not exclusively just may not involve duties at all.




The commands of a legitimate political authority are usually thought
to involve something more than this. The duty of the subject is
grounded not in the content of the command itself but in the nature of
the source issuing the command. The duty to obey is then automatically
generated when the command is issued by the appropriate authority and
when it has the right form and provenance. In this respect, the duty to
obey is content independent or independent of the content of the
particular command. One must obey because one has been commanded and
not because of the particular content of the command. One must do it
because one has been told to do it. This kind of duty seems to be the
most central kind of duty involved in the duty to obey. It is the idea
that one must obey the authority because it is the authority. It does
not imply of itself that one owes the duty of obedience to the
authority so it does not imply that there is a right to rule on the
part of the authority.




Here we must distinguish a duty that is owed to the authority and a
duty that is merely the result of the authoritative command. The duty
that is owed to the authority is grounded in the fact that the
authority possesses a feature that gives it a right to command and that
it is in virtue of that right that one owes obedience. The idea is that
there is something just in itself that the authority be obeyed.




One other distinction that is worth making in this connection is the
distinction between a preemptive duty to obey and a duty that is not
preemptive. A preemptive duty is one that replaces other duties. It
puts other duties out of play when it comes into play. A preemptive
duty is not weighed against other duties that might relate to what one
is thinking of doing. Of course, a preemptive duty may not preempt all
other considerations, its preemption may operate only with a limited
scope and thus preempt only some limited set of considerations.




An example of a preemptive duty is the case of a promissory
obligation. If I have agreed to do something for you and I suddenly see
some pleasurable alternative to fulfilling my obligation, most people
would think that I ought to exclude the consideration of pleasure
altogether from my deliberations even though the pleasure would be a
consideration had I made no promise. It is simply not something that I
can legitimately weigh in the balance against the promissory
obligation. So if an authority issues a command and the duty to obey is
a preemptive duty, then the subject does not weigh the other duties
that might otherwise apply to him in the balance with the preemptive
duty. The preemptive duty simply excludes the other duties. By
contrast, if a duty is not preemptive, then when it comes time to
comply with it, one must balance it with other duties that weigh for
and against acting in accord with the duty.




Most think that the duties associated with authority are content
independent in the sense that one must do what one is told even if one
is skeptical about the merits of the command. There is some
skepticism, however, about the claim that legitimate political
authorities impose preemptive duties on subjects. These people have
questioned the rationality of preemptive duties or reasons for
action. Surely, there are times when what appear to be preempted
considerations all add up to a consideration that outweighs the
preempting consideration. How can this be understood on the preemption
model? Some have argued that authoritative commands simply give
especially weighty content independent duties, which can be balanced
against other duties (Shapiro 2002). The discussion of instrumentalism
will say a bit more about these criticisms below.




The most demanding notion of authority is the idea of a political
authority that has a right to rule that correlates with a duty to obey
that is owed to the authority and that is a content independent and
preemptive duty.


### 1.3 Political Authority without Duties of Obedience




Most who think of legitimate authority as a kind of moral power to
change the moral situation of others think of it as creating duties in
others. And this is certainly the most prominent and striking
exercise of authority. But political authorities do not only create
duties in others in and some cases do not purport to create such
duties at all. The most prominent instances of this can be found in
international institutions. The Security Council of the United
Nations exercises authority in a variety of ways: sometimes acting as
a kind of legislative body and sometimes acting as a kind of executive
body. Its executive authority is its traditional role in
international law. But this executive authority is quite distinct
from the kind of executive authority we see in the state. The
Security Council exercises its executive authority primarily by
authorizing actions and not by carrying them out by itself or by
requiring them. One way to describe the moral power of the Security
Council is that it gives a liberty to states to prosecute wars. It
does this against a background of a general prohibition of all war
except in the case of self-defense. It suspends that prohibition for
certain states. It does not require them to act, it only permits them
to act in a warlike way. This is because the agent of enforcement in
the international system is a decentralized one.




Furthermore the Dispute Settlement Mechanism of the World Trade
Organization functions in very much the same way. The dispute
settlement system first determines whether a state has in fact
violated its agreements on trade and tariffs with another state. And
when it determines this, it permits the plaintiff state to act in a
way that would normally be in violation of its agreements. It permits
retaliation through the system of tariffs and non-tariff barriers. It
cannot require this retaliation.


 

Hence the two most effective and authoritative institutions in the
international system do not impose duties at all in many cases, they
exercise a moral power to alter the moral situation of states but the
alteration is from duty to permission in many cases. To be sure, they
do this against the background of treaties and agreements that have a
kind of legislative force and that do purport to impose genuine
duties. And there are duties not to interfere with the authorized
activity, but the point remains that the primary exercise is one of
changing duties to permissions. This may confirm Applebaum's idea
that authority need not impose duties.


### 1.4 The Diversity of Holders of Political Authority




One reason for keeping our minds open to different accounts of
political authority is that there are different kinds of political
authority. Different accounts may be suitable to different kinds of
authority. Indeed, different principles grounding authority may be
suitable to different kinds of authority. One thing that is not often
enough discussed in treatments of political authority is the fact that
there are very different kinds of political authority. Within the
state alone there is legislative authority, executive authority,
judicial authority, and administrative authority; these different
kinds of authority can have distinct sub-branches of authority. And
there are political authorities outside of the modern state, namely
international institutions. These have a very distinct kind of
authority at least in the contemporary world and the authority of
these different agencies is grounded in different principles.




As an illustration of different forms of authority for different
political entities consider the different parts of the modern state.
We might think that a democratic legislative assembly has a genuine
right to rule in the sense that citizens owe obedience to it. They
might owe this obedience because the assembly pools all the democratic
rights of all the citizens and so citizens treat each other as equals
by complying with the assembly's directives. But citizens do not owe
it to courts to respect their judgments about the law. The courts may
create duties but the duties are not owed to them. The same
presumably goes for policemen and adminstrators as well. They seem to
have moral powers to create duties but these duties are not owed to
them. Furthermore, the grounds of authority might be distinct for
these two kinds of entities. The democratic conception might provide
the basis of the authority of the assembly while the authority of
courts and administrators may be more instrumentally grounded.


## 2. Conceptions of the Legitimacy of Political Authority




Few theorists after Thomas Hobbes and David Hume have argued that
there is a general duty to obey the law or that political authority is
generally legitimate (Hobbes 1668; Hume 1965). Most theorists have
argued that the legitimacy of political authority is one that holds
only when the political authority satisfies certain normatively
important conditions. What we will review here are some of the main
theories that attempt to explain when a political authority has
legitimacy.




General theories are theories that identify general properties that
virtually any kind of political regime can have that gives them
legitimacy. Special theories are ones that mark off particular classes
of regimes that have legitimacy or that have a particularly high level
of legitimacy. There are really four types of general theory of
political authority and then there are a variety of special theories of
political authority. The four types of general theory of legitimacy are
consent theories, reasonable consensus theories, associative obligation
theories and instrumentalist theories. The two historically important
forms of special theory in the West have been the Divine Right of Kings
theories and democratic theories.


## 3. The Puzzle of Political Authority: Philosophical Anarchism




At the root of all contemporary discussions of the legitimacy of
authority is the problem posed by Robert Paul Wolff concerning the
incompatibility of moral autonomy and political authority. The problem
is really only connected with the kinds of political authority that
imply content independent duties to comply with authoritative commands.
The basic idea is that it is incompatible for a subject to comply with
the commands of an authority merely because it is the command of the
authority and for the subject to be acting morally autonomously. Wolff
thinks that each person has a duty to act on the basis of his own moral
assessment of right and wrong and has the duty to reflect on what is
right and wrong in each particular instance of action. Such a person
would be violating his duty to act autonomously if he complies with
authoritative commands on grounds that are independent of the content
of the commands. So the duty of autonomy is incompatible with the duty
of obeying political authority. This is the challenge of philosophical
anarchism (Wolff 1970).




The worry is that authority is never legitimate because the kind of
obedience associated with authority is inconsistent with the autonomy
of the subject. We can see, however, that this worry applies only to
certain accounts of authority, which imply duties to obey on the part
of the subjects. The account of authority as justified coercion is not
affected by this argument nor is the account of legitimate authority
consisting of a justification right affected by this worry. Still, most
accounts of the nature of authority do imply content independent duties
on the part of the subjects. We can see that any content independent
duty, whether it is a duty not to interfere with the authority's
command or it is a duty to obey the authority, is called into question
by this argument.


### 3.1 Instrumentalism about Legitimate Political Authority




One can see different accounts of the legitimacy of political
authority as responses to the anarchist challenge. Let us start with
the instrumentalist account of legitimacy. The canonical statement of
this notion of legitimate authority is provided by Joseph Raz. He calls
it the Normal Justification Thesis. It asserts that "the normal
way to establish that a person has authority over another person
involves showing that the alleged subject is likely better to comply
with reasons which apply to him (other than the alleged authoritative
directives) if he accepts the directives of the alleged authority as
authoritatively binding and tries to follow them, rather than by trying
to follow the reasons which apply to him directly." (Raz
1986)




This conception of the legitimacy of authority flows from the idea
that "authoritative directives should be based on reasons which
already independently apply to the subjects of the directives and are
relevant to their action in the circumstances covered by the
directive" (Raz 1986.) According to Raz, what should guide
government decisions about what commands to give subjects is what the
subjects already have reason to do. For instance, subjects already have
reason to give a fair share of resources for the common good.
Authorities merely help them comply with these reasons by establishing
an efficient and fair system of taxation. Subjects have reason to
defend their fellow countrymen and authorities help them do this by
establishing an army in an efficient and fair way. Authorities do these
things by issuing commands to subjects that are meant to replace the
reasons that already apply to the subjects. Instead of the subject
trying to figure out exactly how much he owes and who to give it to by
coordinating it with many other people, the authority simply takes over
these tasks, determines what the subject has reason to do and expects
the subject to take its authoritative command as a reason instead of
the reasons that directly apply to the action. An authority does its
job well and is therefore legitimate when it enables subjects to act
better on the reasons that apply to them when they take the commands as
giving them preemptive reasons.




An instrumentalist attempts to meet Wolff's challenge by saying that
an authority is legitimate when one complies better with one's duty
overall by submission to authority than by trying to act on the basis
of one's own assessments of what is right and wrong in each instance.
This amounts to a rejection of the duty of autonomy that is central to
the anarchist idea. Or at least it is a rejection of the idea that the
duty of autonomy is the most fundamental duty. But it does get at
something important. Wolff's challenge states in a rather general way
the worry that there is something immoral about failing to critically
reflect about what one ought to do in each instance of action. And he
states that submitting to the commands of the state is precisely a case
of failing to act on one's critical assessment of a situation. The
instrumentalist suggests a way in which it is not immoral to fail to
critically reflect on one's prospective actions in each instance.
Indeed, the instrumentalist can argue that it is sometimes immoral to
insist on critically reflecting and acting autonomously when one may
actually act worse as a result of consistently critically reflecting.
We frequently act on the basis of rules of action, without considering
all the details of the circumstances in which we act on the grounds
that trying to take all the details of each situation into account for
each action would produce bad decisions. The instrumentalist argues
that we ought to take this kind of attitude to the commands of the
state when we will better act in accordance with our duty overall by
doing so than by attempting to make independent assessments of the
worth of our actions in every case (see Raz 1986, ch. 3.)




This response to the philosophical anarchist challenge establishes
only a piecemeal duty to obey the state. The instrumentalist argues
that some states some of the time issue commands that we (or at least
some individuals) ought to submit to without critical reflection on
each command. It does not imply that the duty to obey the state extends
to all commands of the state and to all subjects. It only applies when
the subject would likely better comply with duties overall by treating
the commands as authoritative (i.e. establishing content independent
and preemptive duties to obey the commands) than by acting on the basis
of an independent assessment of the rightness of each action. Whether
the commands impose duties or not depends on features of the subject
such as his or her knowledge of the issues related to the commands and
so forth.




Of course, it is important to note that not every act of obedience
will ensure better compliance with reason, there will be cases when the
commands of the state do not accord with the best reasons. Raz's
conception of authority depends for its cogency on the thought that as
long as the subject does better by reason overall by obeying certain
classes of commands, the subject has a duty to obey every one of the
commands: the correct as well as the incorrect. In some sense, the
obedience to the commands has a greater likelihood of ensuring
conformity with reason. Finally, this particular account of the duty to
obey does not assert that the discharging of the duties is owed to the
state. This account does not establish any fundamental right to rule on
the part of the state.


### 3.2 A Worry about the Instrumentalist Account of Practical Reason




The power of this account of political authority and the duty to
obey depends essentially on the account of practical reasoning that
lies at its base. Many have argued that this conception of practical
reasoning is flawed. They have worried that the indirect form of
practical reasoning that it requires is not legitimate. The worry can
be stated fairly easily. The form of practical reasoning this account
of authority includes requires that we ignore the reasons that apply
directly to the action we are about to undertake even though sometimes
those reasons will count against the action. The question arises, when
are the reasons that directly apply to the action so strongly opposed
to the action that we must override the preemptive reason?




In the case of rule following, we sometimes encounter particular
instances in which following the rule is counterproductive. How do we
determine when we ought to follow the rule and when we ought not to
follow the rule? Does such determination involve the very deliberation
about particular instances that was meant to be excluded by the rule?
Some have argued that rule following cannot be rational since it cannot
be rational to ignore the particular facts of each case (Hurd
2001).




Raz's main response to this criticism has been to say that we look
for clear cases in which the rule is to be overridden and ignore the
other cases and that only by doing this do we best comply with reason.
Limiting exceptions to the rule to clear cases obviates the need for
deliberation in every case.


## 4. A Second Form of Philosophical Anarchism




Another version of the philosophical anarchist challenge may seem to
avoid the critical edge of the above approach. This approach, defended
by A. John Simmons (Simmons 2001) and Leslie Green (Green 1989) asserts
that each person has a right not to be bound by the state's commands.
This thesis is quite different from the kind of anarchism defended by
Wolff. The latter asserts that each individual has a duty to be
autonomous. The present theory asserts merely that a person has a right
not be subjected to another's imposition of duties. The philosophical
anarchist then argues that only if a person consents to being bound to
the political authority can the person actually be bound. The final
premise in the philosophical anarchist argument is that it is either
practically impossible or at least actually untrue that states can be
set up in such a way that they can demand the obedience of all and only
those who have consented to their authority. So, the anarchist
concludes, no state is legitimate and perhaps no state can ever be
legitimate.




It is important to note that this view does not imply that one must
never obey the state. It merely implies that one does not have content
independent duties to obey the state and that the state does not have a
right to rule. A reasonably just state will command one to do things
that are reasonably just and in many cases one must obey those commands
because they are just. What one is not required to do on the
philosophical anarchist view is obey any state just because it has
commanded one to do certain things.




To discuss this view, we will first discuss the arguments people
have given for the consent theory of political authority. We will also
discuss some counterarguments. Then we will discuss a popular
modification of the consent theory that is designed to avoid
philosophical anarchism.


### 4.1 The Consent Theory of Political Authority: The Natural Right to Freedom Argument




The consent theory of political authority states only a necessary
condition of the legitimacy of political authority. It states that a
political authority is legitimate only if it has the consent of those
who are subject to its commands. Many have argued that in addition to
consent, a state must be minimally just for it to be legitimate (Locke
1990).




A number of arguments have been presented in favor of this view.
Locke's argument is that each person has an equal natural right to
freedom and that this implies that at the age of maturity no one may be
subordinated to anyone else's commands by nature (Locke 1990). Let us
call this the *natural right argument*. Such subordination would
violate the equal freedom of the subordinated person. To the extent
that political authority involves issuing commands and requiring others
to follow the commands, it seems to involve subordinating one person to
the commands of another and thus violates the natural right to freedom
of the subordinated person.


### 4.2 The Instrumentalist Critique of the Natural Right Argument




A natural objection to this line of reasoning is to state that
political authority is actually necessary to protecting each person's
equal freedom. Locke himself argued that the state of nature would be
quite threatening to each person's ability to live freely because there
are likely to be many disagreements about what rights each person has
and so people are likely to trespass on each other's rights.
Furthermore he argued that when there is such disagreement, we need an
impartial judge to determine when rights have been violated. And
against criminals we need a police power to enforce the rights that
people have. Locke argues that only by establishing political society
with a legislature that makes known and settled laws and establishing a
judiciary that resolves remaining controversies between people and
having an executive power that enforces the laws can people's rights
and freedoms be protected.




Once we have the above argument in mind, it is hard to see the force
of the natural right argument for no political authority without
consent. We might think that the very liberty that is being invoked to
support the case for the necessity of consent is better protected by a
reasonably just political authority. The instrumentalist can then argue
that one protects the liberty of each and every person better by
instituting political authority and by treating its commands as
authoritative. And so the instrumentalist could argue that insofar as
liberty is a fundamental value, it would be immoral not to support a
reasonably just political authority and treat its commands as
authoritative.




The natural right theorist might argue in response that the above
argument seems to involve a kind of utilitarianism of rights. Such a
view says that it is justified to violate one person's right in order
to protect the rights of others. But, such a theorist might say, the
natural rights of persons are side constraints against actions; they
are not to be violated even if others' rights are better protected as
a consequence. This entry will not go into the many issues that arise
in the discussion of deontology and consequentialism here. We will
return to the issue of side constraints after the discussion of the
next argument.


### 4.3 The Consent Theory: The Options Argument




Some have proposed what this entry will call the *options
argument* against the kind of considerations the instrumentalist
adduces. The instrumentalist argues that I have natural duties of
justice to promote just institutions and that these duties are best
satisfied by complying with the authority of a reasonably just
state. But the philosophical anarchist could argue that though I may
have a duty of justice, it does not entail that I must obey any
particular institution for promoting justice. The idea here is that
just as Amnesty International may not require me to pay dues to it
regardless of my membership even though these dues would clearly
advance the protection of human rights throughout the world, so the
state may not require me to comply with its commands even though such
compliance would advance the purposes of justice in the world. Let us
suppose that the reasons clearly favor my support of Amnesty
International. Intuitively, it still may not require me to lend it
support. Only if I have voluntarily joined and voluntarily remain in
Amnesty do I have a duty to do what the conditions of membership
require. And I am under no obligation to join Amnesty; I may join
other organizations to fulfill whatever duties of aid that I have. So
whether I ought to join Amnesty and be subject to membership dues is
up to me. The consent theorist seems to think that, in the same way,
only if I voluntarily transact to obligate myself to comply with the
state's commands can I be said to have a duty to comply with the
state. I must somehow enlist myself in the project of promoting the
good causes that the state promotes (Simmons 2001).


### 4.4 The Instrumentalist Critique of the Option and Natural Right Arguments




This argument may miss a central idea in the instrumentalist account
of authority. The instrumentalist account is premised on the view that
not only does the state help one discharge one's duties of justice; it
asserts that compliance with the state is necessary to the discharge of
one's duties. Hence, one acts unjustly if one fails to comply with the
state's commands.




To understand this, we need to introduce another concept. The idea
is that the state does not only promote justice, it
*establishes* justice. What does this mean? It means that for a
particular community, the state determines what justice requires in the
relations between individuals. It does this by defining the relations
of property and exchange as well as the institutions of the criminal
law and tort law. To say that the state's legislative activity
establishes justice is not the same as saying that the state's activity
constitutes justice. Justice is still an independent standard of
assessment on this account.




The reason for saying that the state establishes justice is that, in
Joseph Raz's words, justice and morality more generally, underdetermine
the legislation necessary to bring about justice in a community. This
means that one can implement the same principles of justice by means of
many different sets of rules. But one can treat others justly only if
one is on the same page as the others. So what is just in a particular
circumstance will depend in part on the set of rules that the others
are acting on. To the extent that the state determines the basic
framework of rules, it determines which actions are just and which are
not. One does not act justly, on this account, by deciding not to
comply with the state one lives in and sending money to another state
or association. If one fails to comply with the rules of property or
the rules of exchange, one treats others unjustly. The options argument
suggests that somehow there is a way that one can discharge one's duty
to others by doing something other than obeying the law. Instead of
obeying the law of property of the society in which I live, I may
simply decide to send money to another part of the world where property
rights are enforced. But this argument fails to appreciate the central
importance of law to defining justice among persons. Though not all
laws are just, justice among persons in any even moderately complex
society requires law and obedience to law.


### 4.5 The Consent Theory of Political Authority: The Argument from Personal Reasons




One argument for consent theory essayed by Simmons asserts that a
person ought to be free to act on the basis of personal reasons as
opposed to impersonal reasons. So even if the state does help each
person act more on the basis of impersonal reasons that apply to them
independent of the state, a person may refuse, on the basis of personal
reasons, to accept the directives of the state. And so, it is argued,
the state's imposition of duties on the individual may occur only if
the individual has consented to the state's authority (Simmons
2001).




The idea that one can have personal reasons not to obey the commands
of a reasonably just state is unclear. It might be referring to the
idea that each person has a kind of personal prerogative that permits
him to avoid the demands of morality generally. This idea was proposed
by critics of utilitarianism as a way to avoid the excessive
demandingness of utilitarianism while keeping most of the view intact.
Utilitarianism supplies exclusively impersonal reasons for action to
individuals. These seem to undermine the personal projects and
interests of individuals. Some have proposed that utilitarianism be
modified to accommodate the projects of individuals by including a
personal prerogative to act on the basis of personal reasons. Others
have argued that there ought to be a personal prerogative to ignore the
impersonal reasons of any set of moral requirements.




But this role for personal reasons does not seem to provide much in
the way of defense of the consent theory. One reason for this is that
these are reasons to avoid some of the demands of morality. But the
issue at stake in the justification of authority is whether morality
demands obedience or not. If we think of these personal reasons as part
of the structure of morality, on the other hand, then it would seem
that these personal reasons are best protected by a reasonably just
state that protects individual freedom. So the response to the claim
that individuals have personal reasons to evade the commands of the
state seems to fall prey to the same argument that undermines the
natural right approach.


### 4.6 Consent Theory: The Argument from Disagreement




There is another way to think of this personal reasons criticism of
instrumentalist approaches to political authority. The instrumentalist
approach seems to be committed to the idea that an authority can be
legitimate even if most of the members of the society do not agree with
what it is doing. As long as the state is requiring people to act as
they should act, the subjects have a duty to obey, even if they do not
see that they have this duty. Now one can see how this may be true in
some circumstances, where the members are deeply immoral or irrational.
But it seems perverse to think that whether the state has legitimate
authority is completely independent of the considered opinions of its
subjects. Here is the reason behind the appearance. The state, being a
group of people, owes the subjects some kind of duty of respect for the
judgments of those members. This duty of respect requires at least some
degree of responsiveness on the part of the state in making decisions.
Furthermore the state, in part, is an institution that is grounded in
the need for decisions against a background of disagreement about what
ought to be done. For the state to make decisions against this
background that completely ignores the views of the many dissenters
seems a particularly egregious violation of the duty to accord some
respect to the opinions of reasonable adult human beings.




Consent theories, reasonable consensus theories, associative
obligation theories and democratic theories make these observations
part of the foundation of their accounts of the legitimacy of
authority. The consent theory of political authority requires that for
the state to have authority over any person, the state must have the
consent of the person to that authority. Consent, on this account, is a
necessary condition of the legitimacy of authority though it need not
be a sufficient condition. The consent theory clearly makes an attempt
to make political authority compatible with a due respect for the
opinions of subjects.


### 4.7 The Problems of Irrational, Immoral Failures of Consent




But we might wonder if it doesn't go too far. For if consent is a
genuinely necessary condition of political authority, then it appears
that individuals may have the option of not obeying a perfectly just
state that has jurisdiction over the area in which they live. And they
may do this on perverse grounds or they may simply wish to free ride on
the benefits that the state confers without having to undertake any of
the burdens. How can this be legitimate and how can it undermine the
authority of a just state? It seems that in the effort to express
respect for the reasonable opinions of people, consent theory seems to
have gone too far in giving respect to immoral, irrational and
unprincipled failures of consent (Raz 1986).




The consent theorist could respond to this difficulty with the claim
that it is only the state's claim to authority that is being held
hostage, not the state's just activities. For if it is the case that
the person is merely free riding on desirable activities and that this
is unjust then the person is acting wrongly. Hence, the justice of the
actions of the state may be sufficient to condemn the actions of the
free rider and this can be done without attributing the right to rule
to the state.




But now the instrumentalist could argue that obedience to the
authoritative commands of the state may be necessary to acting justly
in many instances. The thought is that only if people treat the
commands of the state as providing content independent reasons for
obedience can a reasonably just state actually perform the tasks that
make it just. If people are constantly second guessing the state's
decisions, the central roles of coordination, collective action and
assurance in the establishment of justice by the state will be
undermined. These are collective effects of second guessing. But the
instrumentalist will also argue that individuals will often act less in
accordance with the reasons that apply to them if they fail to take the
commands of a reasonably just state as offering content independent
reasons because only the state's commands can clue them in to what the
rules that establish justice are in their particular community. The
instrumentalist may then argue that it is therefore wrong for the
person not to take the commands of the state as authoritative, at least
in many circumstances.


### 4.8 Tacit Consent




Locke, in part desiring to avoid these obvious difficulties or
irrational and immoral failures of consent, introduced the notion of
tacit consent (Locke 1990). The possibility of tacit consent allows
that one may consent without having to go through the usual motions
associated with expression of consent. For example, at a board meeting,
one consents tacitly to the chairman's scheduling a meeting if one says
nothing when the chair asks for objections to the proposal. And that
tacit consent is valid to the extent that the failure to object is
understood as a kind of consent and is voluntary.




The main problem with tacit consent is the problem of
interpretation. How does one interpret the actions of another so as to
think of them as consenting though they did not explicitly do so?
Theorists differ on the constraints that must be placed on the
interpretation of the behaviors of others. Simmons argues that for
behavior to count as tacit consent it the behavior must be explicitly
understood by all to be a kind of consent, it must be clear how when to
perform the act or omission that constitutes tacit consent, it is not
difficult to consent and the costs of dissent are not prohibitive. But
it is not obvious that Locke had this in mind. Locke thought that the
mere residing in a territory and voluntarily benefiting from the
actions of a minimally just state were sufficient conditions of tacit
consent. One might think that Locke thought the following. If a person
voluntarily resides in a territory over which the state has
jurisdiction and that person benefits from the establishment of the
rule of law and all the other amenities the state provides then that
person must know or ought to know that the state's provision of these
benefits depends on the obedience of the members of the society. But if
the person now continues to reside voluntarily in the state, that
person must know that others expect obedience from him unless he is
under some special exemption. He must know or ought to know, in other
words, that others can reasonably interpret his voluntary residence as
committing him to obedience to the laws of the state. So, we have
adequate reason to interpret a person's continued voluntary residence
as a form of consenting to abide by the laws of the state.


### 4.9 The Humean Attack on Tacit Consent




David Hume criticized this interpretive move (Hume 1965). He argued
that given the extraordinary costs to most people of moving out of the
country of their birth, no one can sensibly interpret the voluntary
continued residence of a person in a state as a case of tacit consent.
He draws an analogy with a person who has been carried involuntarily
onto a ship by others and who now finds himself on the ship subject to
the commands of the captain and whose only alternative is to throw
himself into a stormy sea. Hume argues that such a person's remaining
on the ship can not be interpreted to be consenting to the authority of
the captain. The person is merely attempting to avoid the terrible cost
of getting off the ship.




But it is not clear why Hume's argument is supposed to work. It
sounds like the argument challenges the voluntariness of the consent.
But this cannot be a conclusive argument here. After all, many people
consent to things in order to avoid the terrible costs of not
consenting. People consent to pay their insurance premiums in order not
to end up without health care when the time comes that they need it.
Promises made on the battlefield to lay down arms on the condition that
the opponent will not harm one are also made under severe duress. But
we do not think that these promises are invalid or that they fail to
obligate. So the fact that the alternative would be terrible is not a
reason to think that those who choose to remain in a state are not
thereby bound.




Of course, Hume's example includes the fact that the person was
carried forcibly onto the ship. This may be doing more work that it
should be. For few people would say that the state has necessarily done
something wrong by imposing its jurisdiction over a territory on which
a person is born. We need, then, to change Hume's example so that the
person who is on the boat is on it through no fault of anyone on the
boat, though he may have ended up there involuntarily.




One possibility is that Hume thinks that we cannot interpret the
continuing residence of a person in a state as a case of consent to the
authority of the state because we have no reason to think that the
continuing residence was chosen as a result of reflection on whether it
constituted consent. The impoverished person who remains in the state
in which he finds himself gave no thought whatsoever to any
consideration other than that to move would be highly costly or
otherwise unpleasant. We have no reason to think that he gave any
thought to the question of consent and so it is illegitimate to
interpret his behavior in that way.




But it is not obvious that this reasoning succeeds. If a person
benefits by residing in a territory and everyone knows that the
benefit only arises because of the obedience to law of the members,
shouldn't it be clear to this person that his compliance is expected
of him if he remains in the territory? And does his remaining in the
territory thereby imply that he consents to the authority of the
territory?




Of course it is true of any particular person that *his*
compliance is not necessary to the maintenance of the benefits of
public order. But at the same time it is clear that unless there is
some special reason for this person not to be subject to the rules
everyone else is subject to, elementary norms of fairness will suggest
to him and everyone else that compliance is expected of him just as it
is of everyone else.




This would seem to be a basis for interpreting the person's behavior
as a case of consent. Anyone can see that the compliance of each person
is expected of those who reside in a territory as long as the law is
reasonably just. If someone has not considered these facts, perhaps he
should be held responsible for consenting anyway. After all, if we look
at Simmons's central board room case we might have the same reaction to
someone who, having been told that failure to object implies consent to
a policy, fails to object but only because he doesn't want to anger his
girlfriend in the group and really gives no thought to the question of
consent. Surely he has tacitly consented, despite his irresponsible
attitude. So why not think that the person who continues to reside
voluntarily in a reasonably just state?


### 4.10 How Can Tacit Consent Be A Basis of Political Authority?




An important objection to the idea of tacit consent is that it begs
the question about how a state gets its authority. Some argue that a
group of persons that has no authority to issue commands in the first
place cannot require people submit to their commands or leave a piece
of territory they are falsely claim as under their jurisdiction
(Brilmayer 1989; Wellman 2001). In a variation on the boardroom example
described above, Brilmayer imagines that instead of the chairman
proposing a date for a meeting, a window washer swings in and makes the
same proposal and asks for objections. Clearly in that case, failure to
register objections would not constitute consent to the proposed
schedule. The reason for this is that only a duly constituted authority
can have the right to make such a proposal. But, the claim to authority
is precisely what tacit consent is supposed to support. So as an
account of authority the tacit consent view seems to beg the
question.




This criticism is right as far as it goes. But there are four points
to note about it. First, it applies to explicit consent as well as
tacit consent. My consent to a person's doing something does not
legitimate that person's doing it nor does it obligate me to respect
his doing it unless he already has a right to make the proposal. In the
case of political authorities, my consent to someone's issuing commands
over a piece of territory that she has no right to rule over does not
legitimate her commands nor does it obligate me.




Second, it is not a criticism of Locke since he clearly thinks that
tacit consent only legitimates and obligates under conditions where
there is a duly constituted authority. Locke thinks that the right to
rule of an authority must be traced back to an original act of consent
in the state of nature (where there is no prior political authority) to
form a political body. That political body then confers, by the consent
of all the members, authority on a particular institutional arrangement
(as long as it is minimally just). The function of tacit consent as
well as the consent of new members is simply to renew this already
created authority.




Third, if Locke is right and consent can create authority out of the
state of nature, it may be possible for tacit consent to do the same.
We can imagine a state of nature scenario where a highly persuasive
person gets up amid the chaos and makes a proposal to create the
initial political body from the state of nature and then states very
clearly that if there are objections, they should be raised without
fear. And we can imagine the very same person making a proposal to
create the particular structure of authority over the political body
and calling for objections in the same way as before. There is no
obvious reason why this could not work. Locke did not suggest this but
it does not seem impossible.




These last two points defeat the argument that tacit consent
requires a prior duly constituted authority. What Locke's picture
suggests is that valid consent or tacit consent do not require that the
consented to proposal be made by someone already in authority; they can
be valid as long as the proposal is made when there is no authority
already in place. The proposals can be drawn up by someone who has the
right to make the proposal. In the state of nature, anyone presumably
has this right.




Fourth, even if tacit consent cannot establish authority it may
still be a necessary condition on the legitimacy of authority. For if a
political authority is duly constituted in the way Locke describes but
fails to offer its citizens a right of exit or imposes severe burdens
on people who wish to exit, it will become illegitimate over time,
according to Locke.




Still, this criticism is quite important because it shows that
neither consent nor tacit consent can stand alone as bases of political
legitimacy. An exclusively consent based theory of political authority
seems to require that the original consent take place in a state of
nature prior to political authority. And this further requirement seems
to weaken the plausibility of the view.


### 4.11 The Basic Objection of Consent Theorists to Tacit Consent




What is worrisome about this kind of approach from the standpoint of
consent theory is that it seems to ignore all the particular reasons
that people may have for not consenting. Indeed, it seems to rely on
the premise that anyone should see that if they reside within the
territory of a reasonably just state, they are properly expected to
comply with the law, at least insofar as it is reasonably just. Consent
theory, by contrast, seems to rely on the thought that individuals may
properly reject these kinds of obligations for purely personal
reasons.




We can see a dilemma that arises from the above considerations. If
tacit consent genuinely arises from voluntary residence in a
reasonably just state, then it appears that the interpretation of the
person's residence does not take account of what many consent
theorists have thought was essential to consent theory, namely the
personal reasons of the subject in deciding whether to consent or
not. On the other hand, if those personal reasons are ones that the
subject may properly take into account in deciding whether to consent,
then the interpretive move required for voluntary residence to
generate obligations in all subjects of a reasonably just state cannot
work. It cannot work because subjects may have personal reasons for
not consenting, which voluntary residence does not rule out.




Hence, it appears that tacit consent theory cannot conform to what
many have taken to be the highly individualistic spirit of consent
theory. So fans of consent theory are not likely to agree to the idea
that people generally tacitly consent to the state's authority when
they voluntarily reside in its territory. Critics of consent theory are
likely, however, to question that highly individualistic approach in
the manner sketched above.


### 4.12 Normative Consent




David Estlund has tentatively advanced a new and intriguing suggestion
for shoring up an essentially voluntarist account of
authority. Estlund argues that even in the absence of explicit or
tacit consent in some cases persons may be said to have consented to
political authority. He describes this as "normative
consent". The idea is motivated in the following way. Estlund
notes that actual explicit cases of consenting can fail to produce
obligations if what is consented to is seriously immoral. The consent
is nullified (in its obligation producing effect) by the evident
immorality of its content. Estlund then enquires as to whether the
lack of consent under certain circumstances mightn't similarly be
nullified in cases where it is plainly wrong not to consent. Why
aren't these symmetrical he asks? Estlund envisions a case in which a
passenger airplane has crashed and in which there is still a
significant chance of saving many passengers through a very well
coordinated effort. As it happens an airline attendant stands up and
"takes control" by giving commands to various people thus
organizing the relief effort. Let us suppose that this is evidently
reasonably successful but that it really does require the cooperation
of (nearly) everyone to whom the airline attendant chooses to give
directives. And let us suppose that the attendant is not giving any
clearly immoral commands. Estlund notes that it would be clearly
immoral for someone in a position to give essential help not to agree
to go along with the attendant's commands. Now suppose that someone
in such a situation refuses to consent to the arrangement. Estlund
asks whether their non-consent isn't nullified in the light of the
fact that it is immoral not to consent. And if the non-consent is
nullified, then its normal effect in preserving the liberty of the
agent is not produced. In this case the person is no longer free to
act independent of the purported authority. Since his non-consent is
nullified, he has, in effect, consented and he is therefore under an
obligation to the authority. This is normative consent.




Estlund is anxious to distinguish this idea from hypothetical consent
or what you would have consented to had you been a better person. Yet
he does want to say that this normative consent has a genuine
connection to the will.




One might wonder here if there is any genuine connection to the will
of the normative consenter and so whether this really does shore up
the voluntarist view. But a further issue that might be raised here
is whether Estlund has genuinely identified the fallback point of
invalidated consent and non-consent. Perhaps the proper description
of the fall back point is neither consent nor non-consent. A person
who has consented to something deeply immoral doesn't thereby refuse
consent to that action, the person simply has failed to do anything
morally productive. Perhaps the idea in the case of the seriously
immoral non-consent is that the person has simply not done anything
morally productive. What happens in both cases is that the previous
moral situation of the agent remains in place. In the nullified
consent case you still have an obligation not to do what you consented
to do and in the nullified non-consent case you still have an
obligation to do what you refuse to consent to do. This would suggest
that the decision between consent and non-consent has here no
normative effect: whatever the agent decides, the previous moral
situation remains in place. Hence there is a kind of symmetry that
holds here between the two cases. It is just that the default
position is neither consent nor non-consent. The one implication this
might have is that one may ask the person again until he agrees,
whereas normally if a person refuses to consent to something you must
leave them alone. 


## 5. Reasonable Consensus Conceptions of Legitimate Political Authority




Reasonable consensus views of political authority attempt to find a
kind of mean between the extreme individualism of consent theory and
the lack of respect for people's opinions of the instrumentalist views.
John Rawls argues that the liberal principle of political legitimacy
requires that coercive institutions be so structured that they accord
with the reasonable views of the members of the society. As long as
they do so they have the right to impose duties on their members. The
members may not demur on the basis of unreasonable views. Furthermore,
it is not necessary on this view that the persons over whom authority
is wielded have voluntarily acted or given any sign of agreement. All
that need be the case is that the basic principles that regulate the
coercive institutions be ones that the reasonable members can agree to
(Rawls 1996).




This view seems to be a kind of middle position between consent
theory and the instrumentalist views. It does not allow individuals to
divest themselves of obligations on spurious or merely self-interested
bases because it specifies what is and is not a reasonable basis for
agreement to the basic principles of the society. At the same time it
evinces a respect for the opinions of the members of society since it
requires that the basic principles that regulate the society accord
with the reasonable views of the members.




This account of legitimacy is based on an adherence to a principle of
reasonableness. The basic principle asserts that reasonable persons
will propose fair terms of cooperation with other reasonable persons
only on condition that the terms can be justified to those others on
the basis of premises that they can reasonably accept. There has been
much discussion of this principle and its underpinnings but this entry
will focus on a central worry concerning this idea.


### 5.1 Problems of Reasonableness and Consensus




A number of criticisms have been made against this kind of view.
Many have argued that the relevant notion of reasonableness is likely
to be very difficult to specify in a way that is both plausible and
compatible with possible consensus. The key difficulty with reasonable
consensus theories is that they rely on the possibility of consensus on
at least a sufficient number of basic norms to say that there is
consensus on the basic principles that regulate a society. So if one
attempts to come up with a notion of reasonableness that is
sufficiently robust to generate agreement of this sort, then one is
likely to have a notion that is quite controversial. And then the view
does not seem to take a sufficiently respectful view of the opinions of
the members of society since so many are likely to disagree with the
conception of the reasonable. On the other hand, if one elaborates a
conception of the reasonable that is sufficiently weak for most persons
in the society to satisfy it, then one is not likely to generate
agreement on the basic principles of the society.




The main worry is that the idea demands a level of consensus among
members of society that is incompatible with the ordinary conditions of
political societies (Christiano 1996; Waldron 1999). The principle
demands that there be a kind of consensus among citizens on the basic
principles that underpin the operation of political society.




This consensus seems to be unattainable under the conditions of
modern society. One way, however, in which Rawls has argued in favor of
the attainability of the consensus is to say that it need only be an
overlapping consensus. The idea here is that citizens do not have to
agree on everything but only on those principles that apply to the
basic structure of society. And even here, when citizens disagree on
some issue of social justice, the opposing views are taken off the
table. So citizens can disagree on what the nature of the good life is
and on religious questions and even different issues relating to social
justice. As long as there are certain principles that everyone agrees
to, which apply to the basic structure of society, full consensus is
not necessary. Hence, the consensus need only be an overlapping
one.




Though this idea goes some way towards alleviating the worry that
too much consensus is required by Rawls's theory, it does not go nearly
far enough. There is one main way in which the overlapping consensus
fails to provide the kind of consensus that Rawls requires. If a group
of citizens agrees on a set of principles for regulating society and
some of the citizens also think that some other principles apply, the
overlapping consensus idea is that the citizens who hold the
idiosyncratic views must take those particular demands off the table
and must argue only on the basis of the shared principles. The idea is
that everyone appeals only to those principles that lie in the overlap
and not to those that do not lie in the overlap. A legitimate exercise
of political power is one that is grounded only in those principles
that lie in the overlap. This seems to diminish the amount of agreement
necessary to make a society legitimate.




But this appearance is an illusion. To see this we need only think
of those people who hold idiosyncratic views. If the society they live
in is exclusively grounded in principles that lie in the overlap of
principles, then these people will have reason to complain that the
society is unjust to the extent that the idiosyncratic principles are
ignored. For instance, if someone holds the idiosyncratic view that
people ought to receive in accordance with their desert then a society
that does not act to make sure that this principle is respected is one
that will be considered unjust by that person. They will live in a
society that is unacceptable to them in a certain important respect
relevant to justice.




Of course, if the desert principle is used to ground the basic
institutions of society even though it does not lie in the overlap then
those who think that desert is not a proper principle of justice will
likely think that they are living in a society that they regard as
unjust. The principle of legitimacy will imply in this context that the
basic institutions of society are illegitimate because they are not
based on principles everyone accepts. But surely the same can be said
of those who hold the idiosyncratic principles. They can complain that
they are required to go along with institutions that are unjust by
their lights. The imposition on them implied by the basic institutions
that fail to distribute in accordance with desert is as great as would
be the imposition on the others implied by institutions that do
distribute goods in accordance with desert. There is a complete
symmetry here. Indeed, one way to put this point is to say that those
who hold that desert is not a genuine principle of justice are
themselves holding an idiosyncratic view when we take into account the
fact that many think that desert is a genuine principle of justice.




As a consequence of these considerations, only a complete consensus
of political principles will satisfy the principle of legitimacy that
Rawls defends. But complete consensus on political principles is
impossible to achieve given the conditions of ordinary political
societies. And so to the extent that this principle of legitimacy is
unsatisfiable in ordinary political societies, it appears to be an
unacceptably utopian principle. In particular, it seems to be an
unacceptable principle of political legitimacy because a principle of
political legitimacy is partly framed for the purpose of according
moral credentials to a society in the circumstances of political
disagreement.


## 6. Political Authority as Grounded in Associative Obligations




One classical account of political authority has modeled political
authority and the attendant obligations on the obligations of family
and the authority of the parents. Plato gives this account of authority
and obligation among others in the Crito (Plato 1948). A recent attempt
to ground the legitimacy of political authority in this way is Ronald
Dworkin's (Dworkin 1986). This view is meant to capture the idea that a
political society can have legitimate authority even if it is not a
voluntary association and even if there is disagreement on many
political principles.




If we take the family as a model here, we can see that children
acquire obligations to obey their parents and to love and support their
parents and siblings without having voluntarily entered into the
relationships. And there may be some relation of authority between
parents and children at least till the latter reach the age of
maturity. Another model Dworkin invokes is that of friendship. He
argues that though friendship does have an important voluntary
component, it is not the case that people voluntarily agree to the
terms of a friendship. They find themselves acquiring obligations of
friendship as the friendship grows. Of course there is little in the
way of authority in friendship and even in the family there is little
authority once the children reach maturity.




The analogy between obligations of family, friendship and political
society is grounded in the idea that in all three of these, individuals
are obligated to abide by the rules or norms of the community. Dworkin
argues that legitimate political authority arises as a consequence of
the acquisition on the part of members of a political society of
obligations to obey the rules of a genuine associative community. This
gives the putative authority justification for coercing the members
into obedience of the rules, which is the key element of authority on
Dworkin's account.




Dworkin attempts to discern the basis of obligation in friendships
and families by the process of interpretation of these social
practices. His thesis is that communities that satisfy four conditions
for being genuine communities thereby generate obligations to go along
with the terms of the association. The four conditions are: one, each
member of the community sees herself as having special obligations to
the other members; two, they see the obligations as owed to each of the
others personally; three, these obligations are understood to flow from
a concern for the well being of each of the members; and four, the
obligations are understood as flowing from a plausible version of equal
concern for all the members. Any community that satisfies these four
conditions is a genuine community and thereby generates obligations in
each of the members to comply with the terms of the association.




Dworkin thinks that families and friendships satisfy these
constraints in many cases and that only when they satisfy them do they
generate obligations. He also thinks that a certain kind of political
society can satisfy these conditions, which he calls a community of
principle, i.e., a community wherein each member sees himself or
herself as bound by common principles to all the others.




One might worry that a political society cannot be expected to
generate the kinds of emotional bonds people have towards one another
in families or friendships (Simmons 2001). And one might think that in
the absence of such bonds, the four conditions will not be satisfied.
Dworkin denies this. He agrees that political societies do not generate
these kinds of emotional bonds, but he asserts that emotional bonds are
not necessary either causally or conceptually to the satisfaction of
the four conditions.




Dworkin argues that the attribution of the four conditions to a
relationship occurs through an interpretation of that relationship so
it need not be the case that each person is aware of satisfying any of
the four conditions when they do. Consider a person who appeals to his
fellow citizens on the basis of a principle of freedom of speech on the
grounds that it is part of their constitution. This person is committed
to legal principles that he shares with other citizens. He will be
committed to the principles underlying the other elements of the
constitution and the legal history of his country. He will be committed
to a principle of equality to the extent that it is part of the
constitution. We can interpret this person's behavior and the similar
behavior of others as committed to special obligations to their fellow
countrymen to the extent that it is the shared constitution they are
appealing to. We can interpret this person as expressing a kind of
equal concern for his fellow countrymen to the extent that he is
appealing to legal principles that protect all. And we can interpret
him in this way even if he himself would not have asserted it. And to
the extent that people conform to this kind of practice more generally,
we can interpret their behavior generally as satisfying the four
conditions of associative obligation.




The community of principle satisfies the four conditions. Dworkin
attempts to show how a political community can generate special
obligations of citizens to each other. A community of principle is
regulated by principles that have been elaborated in a distinctive way
in the particular community. Citizens see themselves as obligated to
abide by those principles only in relation to the others who have
participated in elaborating them. The principles do require that
everyone be included and that everyone's well being counts and counts
equally.




The idea of a community of principle is meant to accommodate
significant disagreement in the society in two ways. First, people may
not think that the principles in the society are the best ones. They
may simply be the best interpretation of their shared legal culture and
history. So people may try to advance their own conceptions of the best
principles. Second, people will disagree about the best interpretations
of the shared legal culture and thus may think that the society is
grounded in different principles.


### 6.1 Do Communities of Principle Satisfy the Four Conditions of Genuine Association?




But surely, the satisfaction of some of the conditions must depend
on exactly what principles are in the community. Principles that are
focused on liberty and that avoid any reference to well being, such as
Kant would require of political principles, presumably would not
satisfy the last two conditions. Principles that are not egalitarian,
such as those that governed the United States during the first century
of its existence and probably longer, would not satisfy the last
condition. So it is not clear that being a community of principle is a
sufficient condition for satisfying the four conditions.




It is also not obvious that it is necessary that a community be a
community of principle in order for it to satisfy the four conditions
in Dworkin's sense. For one can imagine a community in which
individuals are committed to democratic resolution of the disagreements
on justice that arise and thereby are committed to the equal importance
of the well being of each member. They attempt to advance opposing
principles of justice and conceptions of the common good and make
compromises when they cannot secure sufficient majorities for these.
Indeed, this seems much closer to the character of modern democracies
than Dworkin's view. Such a society would satisfy the four conditions
but it is not clear that it is a community of principle.




Dworkin's idea that modern political societies can be seen as
communities of principle is grounded in his emphasis on judicial
institutions as the core institutions of modern political societies and
his account of legal interpretation. His view is that judges interpret
the law by creating a coherent account of as much of the black letter
law as possible and by interpreting that black letter law in terms of
principles that make the law be the best that it can be. Hence, judges
aim at producing a coherent account of the law overall by grounding it
in the best basic moral principles that it can be grounded in. From
this he thinks of modern societies as being concerned to elaborate
common principles by which the society can be guided.




But his emphasis on judicial decision making seems excessive. In the
democratic legislative process, citizens often do not see themselves as
being guided by common principles. They see themselves as disagreeing
with each other about what principles the society ought to be guided
by. They also often see themselves as disagreeing with and trying to
change the principles they see embodied in the law. They may look at
the legislation in their community as negotiated compromises between
different principles and not as deriving from a common set of
principles. And yet they do see themselves as members of a common
democratic community. This aspect of democratic rivalry does not seem
to be very well accommodated by Dworkin's view of modern societies as
communities of principle.


## 7. A Democratic Conception of Legitimate Political Authority




The basic idea behind the democratic conception of legitimate
authority is that when there are disagreements among persons about how
to structure their shared world together and it is important to
structure that world together, the way to choose the shared aspects of
society is by means of a decision making process that is fair to the
interests and opinions of each of the members. When there is
disagreement about how to organize the shared system of law, property,
public education and the provision of public goods, no one can have his
way entirely in this context without someone else not getting her way.
Each person thinks that the ideas about justice and the common good
with which the others wish to organize their shared world are mistaken
in some way. Yet there is a need for collective action. The only way to
do this that is reasonably fair to all the members is to make the
decision democratically.




The thought is that when an outcome is democratically chosen and
some people disagree with the outcome, as some inevitably will, they
still have a duty to go along with the decision because otherwise they
would be treating the others unfairly. If they refuse to go along and
disrupt the democratically chosen arrangements, they are assuming for
themselves a right to determine how things should go that overrides the
equal rights of all the others. They are, in Peter Singer's words,
assuming the positions of dictators in relation to the others. For if
they turned out to be in the majority, they would demand the compliance
of the others.




The idea of fairness that underpins the democratic process is
grounded in different ways in different theories. The basic idea of
equality is shared by most democratic theorists. Some argue that there
is a fundamental duty of equal respect for the opinions of others that
grounds democratic decision making in the context of pervasive
disagreement (Singer 1974; Waldron 1999). Others wish to ground this
duty of respect for the opinions of others in a deeper principle of
equal concern for the interests of each member of society (Christiano
1996).




On this kind of view the democratic assembly has a right to rule and
to the obedience of its members. This right of the democratic assembly
is grounded in the right of each member of the assembly to be accorded
equal respect. The duty of equal respect requires that the collective
decision process gives each a vote in a broadly majoritarian process
and a robustly equal opportunity to participate in the deliberations
and negotiations leading to decisions. The equal rights of each of the
members are in effect pooled in the democratic assembly so that because
one owes each person equal respect, and the democratic way of making
decisions embodies this equal respect, one owes the democratic assembly
respect.




The democratic assembly can be understood as the assembly of all
adult citizens or better as the assembly of all the democratically
chosen representatives of citizens. A conception of a democratic
assembly requires, on this view, an account of the appropriate form of
democratic representation (Christiano 1996). In addition, the
democratic assembly is only one part of the complete system of
government. It is concerned with legislation only. In addition to this
a government requires executive and judicial functions whose legitimacy
may depend in part on other factors better grasped by the
instrumentalist view.




The duties that are owed the democratic assembly are content
independent and preemptive duties. They are content independent duties
because each member has the duty, with a class of exceptions we will
review in a moment, just because the assembly has made a decision. The
duties are preemptive because the citizen must put aside the
considerations she initially planned on acting on in order to treat the
rest of her fellow citizens with proper respect. The idea of equal
respect requires, on this account, deference to the decision of the
majority and not acting on one's own judgment when the majority
disagrees. So the decision of the majority gives a reason to obey that
preempts or replaces the considerations one might act on were there no
majority decision.




It is important to note that this conception of authority is what was
described as a special conception above. The fact that democratic
assemblies have authority does not imply that all other forms of
regime never have authority. One might go along with a regime on the
basis of the instrumentalist conception of authority or even the
consent approach even if it is not democratic. It is clear
nevertheless that democratic assemblies have a special kind of
authority.


### 7.1 How Can Democracy Make Unjust Laws Legitimate?




Democratic decision making on this account can be evaluated from two
very different angles. On the one hand, one can evaluate a democratic
decision in terms of the justice or efficiency of the outcome of the
decision. One can ask whether the legislation is just or for the common
good. This is the standpoint of the citizen who argues in favor of
legislation and against others and tries to put together a coalition of
like minded people to advance the legislation. On the other hand,
democratic decision making can be evaluated in terms of the way in
which the decision was made. Did the process of decision making treat
all of its members fairly or with equal respect? Are the institutions
of legislative representation and of campaign finance, among others,
fair?




But why should the equality embodied in the democratic assembly trump
other considerations of justice? The democratic conception of
authority requires each person to submit issues to a democratic vote.
So if they advocate some policy on the grounds that it conforms with
what they take to be the correct principle of justice *J*, and
the majority chooses a different policy on the grounds of an
incompatible principle *L*, the democratic theory says that
they ought to accept the policy that is grounded in *L* because
only in this way do they accord the proper equal respect to their
fellow citizens.




But someone might ask, why should the principle of equal respect take
precedence over the principle *J*? They are both principles of
justice so we need some reason for favoring the equal respect
principle in general over the others.




One answer to this is to say that social justice demands that
principles of justice be *public* in the sense that they involve
principles that can be shown to be implemented to everyone who is
reasonably conscientious and aware of some basic facts of political
life (such as disagreement, fallibility and cognitive bias). This is a
version of the basic maxim of justice that justice must not only be
done, it must be seen to be done. The thought then is that to the
extent that there is significant disagreement about the substantive
principles of justice in play when policy is being decided, a just
society requires some way in which publicly to embody the equal
treatment of all the individuals in society. The controversial
principles guiding the formulation of policy do not generally satisfy
this constraint of publicity. Indeed, given the controversies over
justice, individuals will think that the policies do not accord with
their favored conception of equality. The democratic process does seem
publicly to embody the equal standing of all citizens and the equal
worth of their interests against the background of disagreement and
fallibility and all the facts that attend these phenomena. So the
democratic process seems uniquely capable of publicly embodying the
principle of the equal importance of each person and the equal
importance of the advancement of their interests (Christiano 2004).




Critics of this view might still take issue with the thesis that
social justice requires that principles be public and that this gives
priority to the principles that underpin democracy over those that
underpin substantive policy proposals. The question must be, why is
publicity, in the sense sketched above, so important?


### 7.2 Limits to Democratic Authority




The question that arises for a democratic theory of authority is,
when do the considerations of the justice or injustice of the outcome
override the considerations connected with the fairness of the process
of decision making?




The claim that a democratic assembly has a right to rule is not
incompatible with the idea that there are limits to that right. Indeed,
theorists have argued that the very same principle that grounds
democratic authority also ground limits to that authority (Christiano
2004.) The principle of public equality on which the argument for
democracy is founded also grounds a set of liberal rights (freedom of
conscience, association, speech and private pursuits). The reason for
this is that democratic assembly that fundamentally denied these
liberal rights to individuals would publicly violate the duty of equal
respect to those individuals. Those who violate the basic liberal
rights of others are publicly treating them as inferiors. To the extent
that the democratic assembly's claim of authority is grounded in the
public realization of the principle of equal respect, the authority
would run out when the democratic assembly makes law that undermines
equal respect. This establishes, at least for one conception of
democratic authority, a substantive set of limits to that
authority.


## 8. Legitimate Political Authority in International Institutions




International Institutions have acquired political authority over the
last half century or so. They are quite diverse in character. For
some, their authority has a somewhat different form than the authority
associated with the organs of the state. And the grounds of the
authority of international institutions may be distinct as
well. Overall, these are complex institutions with a number of parts
and so different principles may apply to the different parts. For
example, with regard to the World Trade Organization, some principle
of state consent may be the ultimate basis of the legitimacy of its
law making function, while a very different kind of standard would be
relevant to judging the legitimacy of the dispute settlement
mechanism.




Because global institutions operate in the context of a lack of
overarching and centralized political power, the form and grounds of
authority are likely often to be distinct. As I noted above, some of
the most powerful global institutions have powers to create
permissions rather than duties as in Security Council of the United
Nations authorizations of the use of force. Another example is when
the World Trade Organization's dispute settlement mechanism rules that
a state may restrict trade with another state in what would normally
be a violation of their agreements in order to retaliate against a
state that has violated the trade agreements.




Another interesting feature of international institutions is that
state consent appears to be a possible basis for the legitimacy of
international institutions. To be sure many would argue that
international institutions ought to be evaluated solely on an
instrumental basis and others would argue that only democratic
international institutions can be legitimate. But state consent does
have a fighting chance of playing a large role in underpinning these
institutions. The international system is highly decentralized and
states are by far the most important instruments for making power
accountable to persons that we know of.




To be sure, the state consent doctrine raises many questions. For one
thing, we must ask whether the consent of states that do not represent
their peoples is a genuinely legitimating act. Second, we must ask
about the fairness of the conditions under which consent is given. If
the conditions are unfair and more powerful states take advantage of
the vulnerabilities of the weaker state, what impact does this have on
the legitimacy of the state? Third, what normative weight, if any,
attaches to a state's refusal of consent when it's cooperation is
necessary to the achievement of morally mandatory aims such as the
prevention or mitigation of global warming?