## 1. Obligations in the Law



Every legal system contains obligation-imposing laws, but there is no
decisive linguistic marker determining which these are. The term
"obligation" need not be used, nor its near-synonym,
"duty". One rarely finds the imperative mood. The Canadian
Criminal Code imposes an obligation not to advocate genocide thus:



> 
> 
> Every one who advocates or promotes genocide is guilty of an
> indictable offence and liable to imprisonment for a term not exceeding
> five years.
> 
> 
> 



The English Sale of Goods Act says that,



> 
> 
> Where the seller sells goods in the course of a business, there is an
> implied condition that the goods supplied under the contract are of
> merchantable quality.
> 
> 
> 



That these laws create obligations follows from the way
"offence" and "implied condition" function in
their respective areas of law, not from the language in which they are
expressed.



On the face of it, some laws have other functions. A requirement that
"a will must be signed" generally imposes no
duty--not a duty to make a will, and not even a duty to have it
signed if you do--it sets conditions in the absence of which the
document simply does not count as a valid will. Nonetheless, some
philosophers argue that the content of every legal system can and
should be represented solely in terms of duty-imposing and
duty-excepting laws (Bentham *Of Laws in General*; Kelsen 1960
[1967]). Bentham asks,



> 
> 
> What is it that every article of law has in common with the rest? It
> commands and by doing so creates *duties* or, what is another
> word for the same thing, *obligations*. (Bentham, *Of Laws
> in General* [1970: 294])
> 
> 
> 



(For a related contemporary view, see Harris 1979: 84-106.) They
think that analysing laws this way reveals what legislators or
subjects most need to know: under what conditions the coercive power
of law will ultimately be met. Others argue that even if such a
reduction were possible, it would be unwieldy, uninformative and
unmotivated, concealing as it does the different social functions that
laws fulfil (Hart 1961 [1994: 26-49]) and the different kinds of
reasons for action that they create (Raz 1975 [1990]). Others still,
despairing of any principled way of knowing what a law is, have
abandoned the problem entirely and tried to develop a theory of law
that bypasses it (Honore 1977; Dworkin 1978: 71-78). At a
minimum, it does seem clear that whether or not all laws impose
obligations, they can only be fully *understood* through their
relations to those that do. Thus, a legal right is an interest that
warrants holding others under an obligation to protect it, a legal
power is the ability to create or modify obligations, and so
forth.



What then are legal obligations? They are legal requirements with
which law's subjects are *bound* to conform. An
obligatory act or omission is something the law renders non-optional.
Since people plainly *can* violate their legal obligations,
"non-optional" does not mean that they are physically
compelled to perform, nor even that law leaves them without any
eligible alternative. On the contrary, people often calculate whether
or not to perform their legal duties. Could it be then that
obligations are simply weighty reasons to perform, even if sometimes
neglected or outweighed? This cannot be a sufficient condition: high
courts have important reasons not to reverse themselves too
frequently, but no legal obligation to refrain. Nor is it necessary:
one has an obligation, but only a trivial reason, not to tread on
someone's lawn without his consent.



If their content does not account for the stringency of obligations,
what does? An historically important, though now largely defunct,
theory explained it in terms of penalty. According to this view, to
have a legal obligation is to be subject to a sovereign command to do
or forbear, where a command requires an expression of will together
with an attached risk, however small, of suffering an evil for
non-compliance. As the English jurist John Austin puts it,



> 
> 
> [w]hen I am talking *directly* of the chance of incurring the
> evil, or (changing the expression) of the liability or obnoxiousness
> to the evil, I employ the term *duty*, or the term
> *obligation...*. (Austin 1832 [1995: 18]; see also Bentham
> *Of Laws in General*; Hobbes 1651 [1968])
> 
> 
> 



Others conceived an indirect connection between duty and sanction,
holding that what is normally counted as the content of a legal duty
is in reality only part of a triggering condition for the mandatory
norm which commands or authorizes officials to impose a sanction.
According to this view,



> 
> 
> a norm: "You shall not murder" is superfluous, if a norm
> is valid: "He who murders ought to be punished". (Kelsen
> 1960 [1967: 55])
> 
> 
> 



Thus,



> 
> 
> [l]egal obligation is not, or not immediately, the behavior that ought
> to be. Only the coercive act, functioning as a sanction, ought to be.
> (Kelsen 1960 [1967: 119])
> 
> 
> 



None of these versions of the sanction theory survived H.L.A.
Hart's criticisms (Hart 1961 [1994: 27-42]; cf. Hacker
1973; but see Schauer 2015 for a recent reformulation of this
approach). First, they misleadingly represent a range of disparate
legal consequences--including compensation and even
invalidation--as if they all function as penalties. Second, they
render unintelligible many familiar references to duties in the
absence of sanctions, for example, the duty of the highest courts to
apply the law. Third, they offer an inadequate explanation of
non-optionality. "You have an obligation not to murder"
cannot merely mean "If you murder you will be punished",
for the law is not indifferent between people, on the one hand,
murdering and being jailed, and on the other hand not murdering at
all. "The right to disobey the law is not obtainable by the
payment of a penalty or a licence fee" (*Francome v. Mirror
Group Newspapers Ltd.* [1984] 2 All ER 408 at 412). Such dicta are
commonplace and reflect familiar judicial attitudes. Most important,
the normal function of sanctions in the law is to reinforce duties,
not to constitute them. It is true that *one* reason people are
interested in knowing their legal duties is to avoid sanctions, but
this is not the only reason nor is it, contrary to what Oliver Wendell
Holmes supposed, a theoretically primary one (Holmes 1897). Subjects
also want to be *guided by* their duties--whether in order
to fulfil them or deliberately to infringe them--and officials
invoke them as *reasons for*, and not merely consequences of,
their decisions.



Sensitivity to such matters led Hart to defend a *rule-based*
theory. He says that while sanctions might mark circumstances in which
people are *obliged* to conform, they have *an
obligation* only when subject to a practised social rule requiring
an act or omission. The fact that subjects use it as a rule marks it
as normative. Three further features distinguish obligation-imposing
rules: they must be reinforced by serious or insistent pressure to
conform; they must be believed important to social life or to some
valued aspect of it; and their requirements may conflict with the
interests and goals of the subject (Hart 1961 [1994: 85-88]).
This account of the *nature* of obligations is not an account
of their *validity*. Hart does not say that a legal duty is
binding whenever there is a willingness to deploy serious pressure in
its support, etc. He holds that a duty is legally valid if it is part
of the legal system (i.e., if it is certified as such by the tests for
law in that system), and a legal duty is morally valid only if there
are sound moral reasons to comply with it. But, at least in his early
work, he offers the practice theory as an explanation of duties
generally--legal duties are the creatures of legal rules, moral
duties of moral rules and so on. (Hart later modified this view, see
1982: 255-268; and 1961 [1994: 256].)



The constitutive role of social pressure is sometimes considered an
Austinian blemish on Hart's theory, but there are in any case
more serious problems with it as a general account of obligations
(Dworkin 1978: 50-54; Raz 1975 [1990: 53-58]). People
readily speak of obligations when they are well aware that there are
no relevant social practices, as might a lone vegetarian in a meat
eating society. And Hart's practice conditions may be satisfied
in cases where there is no obligation but only generally applicable
reasons, as when victims are regularly urged to yield their wallets to
a mugger. At best, Hart's theory will apply only to a special
class of obligations in which the existence of a conventional practice
is an essential part of the reasons for conformity, though even here,
the theory is open to doubt (see Dworkin 1978: 54-58; Green
1988: 88-121; cf. Marmor 2011: ch. 3). More recently, some have
objected that Hart's attempt to reduce social rules to social
practices fails because rules and practices belong to different
metaphysical categories. If so, grounding one in the other is a
category mistake. Instead, we should think of the rules of our legal
system as grounded in the planning activities of various officials
whose intent is to regulate the behaviour of individuals (as well as
other bodies) operating within the legal system (Shapiro 2011).



A third account is *reason-based*. On this view, what
constitutes obligations is neither the social resources with which
they are enforced, nor the practices in which they may be expressed,
but the kind of reasons for action that they offer. Legal obligations
are content-independent reasons that are both categorical and
pre-emptive in force. The mark of their content-independence is that
their force does not depend on the nature or merits of the action they
require: in most cases, law can impose an obligation to do *X*
or to refrain from doing *X* (Hart 1958; 1982: 254-55;
but cf. Markwick 2000; Sciaraffa 2009; Valentini 2018). That they are
pre-emptive means that they require the subject to set aside his own
view of the merits and comply nonetheless. That they are categorical
means that they do not condition their claims on the subject's
own goals or interests.



This view is foreshadowed both in Thomas Hobbes and John Locke, but
its most influential contemporary version is due to Joseph Raz (1975
[1990: 35-84]). Raz argues that obligations are categorical
reasons for action that are "protected" insofar as they
are combined with special *second-order reasons* that require
us to exclude from our deliberation some of the competing *first
order reasons* for action. "First-order reasons" are
normal reasons for action grounded in self-interest, desires or
morality; "second-order reasons" are reasons that we have
to act (or refrain from acting) on first-order reasons. Thus, the
distinctive feature of obligations, according to Raz, is that they
exclude *some* contrary reasons--typically at least
reasons of convenience and ordinary preference--from our
practical deliberation. Some but not all. An "exclusionary
reason" is not necessarily a conclusive reason. The stringency
of an obligation is thus a consequence not of its weight or practice
features, but of the fact that it supports the required action by
special normative means, insulating it from the general competition of
reasons. Or at any rate this is what obligations do when they have the
force they claim, i.e., when they are binding. The theory does not
assume that all legal obligations actually are binding from the moral
point of view, but it does suppose that the legal system puts them
forth as if they were--a consequence that some have doubted (Hart
1982: 263-267; Himma 2001: 284-297). And while this
account is invulnerable to the objections to sanction-based and
practice-based theories, it does need to make good the general idea of
an "exclusionary reason", and some philosophers have
expressed doubts on that score also.



Some have criticized the very existence of reasons to act for (or
against) other reasons by pointing out that acting for (or against)
other reasons is not something we can choose to do (Whiting 2017;
Adams 2021). Others have pointed out that the reasons provided by
authoritative directives are best understood as reasons that causally
constrain our capacity not to conform with the directives in question
(Shapiro 2002). Others have argued that what Raz calls exclusionary
reasons are ultimately simply reasons that outweigh competing reasons
(Mian 2002), reasons that affect the weight of first order reasons
(Perry 1989) or reasons that causally change the factual circumstances
in a way that triggers pre-existing reasons (Enoch 2011 and 2014).
Finally, others have accepted that exclusionary reasons exist, while
rejecting the claim that it is ever reasonable to exclude
*entirely* from consideration otherwise valid reasons (Regan
1987; Gur 2007). This has led to formulation of alternative models,
according to which obligations are best understood as providing
"presumptive reasons", as opposed to exclusionary reasons
for action (Schauer 1991; Renzo 2019). According to these models,
competing reasons for action are not excluded altogether from the
deliberation of the agent. Rather, the second-order reasons created by
the obligation merely create a presumption in favour of their
exclusion. Subject to certain epistemic conditions being met, the
presumption can be rebutted (but see Venezia 2020).


## 2. Authority, Obligation, and Legitimacy



A competitive market is not a legal system, even though people adjust
their behaviour in response to relative prices and the whole
constitutes a form of social order. Neither was the system of mutual
nuclear deterrence, though it guided behaviour and generated norms
that regulated the Cold War. Many philosophers and social scientists
agree that a social order is a legal system only if it has effective
*authority*. An effective (or *de facto*) authority may
not be justified, but it does stand in a special relation to justified
(*de jure*) authority. Justified authority is what effective
authorities claim, or what they are generally recognized to have.



What is legal authority, and how is it related to obligations? It is a
kind of practical authority, i.e., authority over action. On one
influential view, "To claim authority is to claim the right to
be obeyed" (R. P. Wolff 1970: 5). There are, of course,
authorities that make no such claim. Theoretical authorities, i.e.,
experts, are not characterized by claims to obedience. They need not
even claim a right to be believed. And there are weaker forms of
practical authority. To give someone authority to use your car is
merely to permit him. But political authority, of which legal
authority is one species, is normally seen as a right to rule, with a
correlative duty to obey. On this account law claims the right to
obedience wherever it sets out obligations. And to obey is not merely
to comply with the law; it is to be *guided by* it. Max Weber
says it is



> 
> 
> as if the ruled had made the content of the command the maxim of their
> conduct for its very own sake. (Weber 1922 [1963: II 946])
> 
> 
> 



Or, as Robert Paul Wolff somewhat more perspicuously puts it:



> 
> 
> Obedience is not a matter of doing what someone tells you to do. It is
> a matter of doing what he tells you to do *because he tells you to
> do it*. (R. P. Wolff 1970: 9)
> 
> 
> 



This is not to say that one obeys only in treating the
authority's say-so as an indefeasible reason for action; but one
must treat as a binding content-independent reason. The question
whether there is an obligation of obedience to law is a matter of
whether we should act from the legal point of view and obey the law as
it claims to be obeyed (Raz 1979: 233-249).



It is an interesting feature of this account that it supposes that one
can tell what the authority requires independent of whether the
requirement is justified on its merits. Indeed, one might argue
that



> 
> 
> if there is no way of telling whether an utterance is authoritative,
> except by evaluating its contents to see whether it deserves to be
> accepted in its own right, then the distinction between an
> authoritative utterance and advice or rational persuasion will have
> collapsed. (Friedman 1973: 132)
> 
> 
> 



An idea of this sort is developed by Raz into one of the leading
arguments for the "sources thesis", the idea that an
adequate test for the existence and content of law must be based only
on social facts, and not on moral arguments. (See the entry on
 legal positivism.)
 Authority's subjects



> 
> 
> can benefit by its decisions only if they can establish their
> existence and content in ways which do not depend on raising the very
> same issues which the authority is there to settle. (Raz 1994:
> 219)
> 
> 
> 



If law aims to settle disputes about moral issues, then law must be
identifiable without resolving these same disputes. The law is
therefore exhausted by its *sources* (such as legislative
enactments, judicial decisions, and customs, together with local
conventions of interpretation). This kind of argument has been
generalized (see Shapiro 1998), but also subjected to criticism. It is
uncertain what sort of constraint is posed by the idea that it should
not involve "the very same issues"--perhaps if
morality is a necessary condition only there could be moral tests for
authority that leave the relevant dependent reasons untouched (Coleman
2001: 126-127). And while law does indeed serve as a scheme for
guiding and appraising behaviour, it may also have other functions,
such as educating its subjects about right and wrong, and this may be
ill-served the attitude that the rules are to be obeyed in part
because they are the rules (Waluchow 1994).



The obligation-correlative view of authority is not universally
accepted. Some argue that the power to impose moral obligations is
only one of the many ways in which political authorities have the
capacity to shape the normative status of those subject to them. The
distinctive feature of political authority, according to this
approach, is the broader power unilaterally change the duties,
liberties and claim-rights of their subjects (Copp 1999 and Perry
2012). Others argue that political authority involves no claim right,
but only a set of liberties: to decide certain questions for a society
and to enforce their decisions. (Soper 2002: 85 ff; cf. Ladenson 1980;
Greenawalt 1987: 47-61; and Edmundson 1998: 7-70).



The liberty conception must answer two questions. First, is it not a
feature of a right to decide that it requires subjects to refrain from
acting on competing decisions? If the law says that abortion is
permissible and the Church says that it is not, what does the denial
of the Church's right to decide amount to if not that public
policy should be structured by the former decision and not the latter,
even if the latter is correct? Second, does the right to enforce
include a duty of subjects to pay the penalty when required? If it
does, then this is only a truncated version of the
obligation-correlative theory--one that holds that punitive and
remedial obligations, but not primary obligations, are binding. If
not, it is starkly at variance with the actual views of legal
officials, who do not think that subjects are at liberty to evade
penalties if they can.



This reaches a methodological issue in the philosophy of law. Some
consider that the character of law's authority is a matter for
descriptive analysis fixed by semantic and logical constraints of
official language and traditions of argument. Others maintain that
such analysis is impossible or indeterminate, and that we are
therefore driven to normative arguments about what legal authority
should be (see Soper 2002; Finnis 1979: 12-15). Crudely put,
they think that we should understand law to claim only the sort of
authority it would be justifiable for law to have. Such is the
motivation for Friedrich Hayek's suggestion that



> 
> 
> The ideal type of law ... provides merely additional information
> to be taken into account in the decision of the actor. (Hayek 1960:
> 150)
> 
> 
> 



Hayek favours the free market, and concludes that the nature of legal
authority should be understood analogically. The most radical position
of this sort is Ronald Dworkin's. He prefers what he calls a
"more relaxed" understanding of legal authority (Dworkin
1986: 429). Others have argued that the pre-emptive notion of
authority is unsatisfactory because it is too rigid (e.g., Perry
1989). Dworkin's objection runs much deeper. His position is not
that law communicates only a weaker form of guidance; it is that law
is not to be understood as trying to communicate anything at all. A
subject considering his legal duties is not listening to the law; he
is engaged in "a conversation with oneself", and is
"trying to discover his own intention in maintaining and
participating in that practice" (Dworkin 1986: 58). On this view
there is no fact of the matter about what law claims that is
independent of what each does well to regard it as claiming.



However we resolve the methodological question, there are two parallel
normative questions:


* *The problem of obligation*: What if anything justifies the
duty to obey the law, and how far does that obedience properly
extend?
* *The problem of legitimacy*: What if anything justifies the
coercive power of law, and how far may that power properly
extend?



What is the relationship between these? Some maintain that obligation
comes first:



> 
> 
> [T]hough obligation is not a sufficient condition for coercion, it is
> close to a necessary one. A state may have good grounds in some
> special circumstances for coercing those who have no duty to obey. But
> no general policy of upholding the law with steel could be justified
> if the law were not, in general, a source of genuine obligations.
> (Dworkin 1986: 191)
> 
> 
> 



The idea is that merely having justice on one's side is an
inadequate ground for coercing others; one also needs a special title
flowing from the moral status of the law. (Contrast, for example,
Locke's view that everyone has an "executive power of the
law of nature", at least outside political society [*Second
Treatise*, SS 13].)



Others contend that this gets the relationship backwards. First, it is
doubtful whether one could have an obligation to obey an illegitimate
regime. We might think that "acquiescence in, or even consent
to, clearly unjust institutions does not give rise to
obligations" (Rawls 1971: 343; but cf. Simmons 1979:
78-79). If so, at least some conditions of legitimacy precede an
obligation of obedience. Second, there are substantive reasons for
thinking we would not have obligations to obey if the law were not
*already* justified in upholding its requirements "with
steel". A legal system that could not justifiably coerce could
not assure the law-abiding that the recalcitrant will not take them
for suckers. Without being able to solve this assurance problem it
would be unjust to impose obligations on them, and unjust to demand
their obedience. Underlying this suggestion is that idea that familiar
idea that effectiveness is a necessary--but certainly not
sufficient--condition for justified authority. (See Kelsen 1960
[1967: 46-50]; cf. Finnis 1979: 250. For an alternative
formulation of the view that there can be no duty to obey until we
have established the right of the authority to coerce, see Ripstein
2004.)


## 3. Obligations to the Law



It may affirm our confidence in the obligation-correlative view to
know that from earliest times philosophical reflection on political
authority has focused on the obligation to obey. The passive
obligation of obedience is certainly not all we owe the law (Parekh
1993: 243; Green 2002: 543-547) but many have taken it to be
law's minimum demand. This gives rise to a puzzle. As Robert
Paul Wolff puts it:



> 
> 
> If the individual retains his autonomy by reserving to himself in each
> instance the final decision whether to co-operate, he thereby denies
> the authority of the state; if, on the other hand, he submits to the
> state and accepts is claim to authority then ... he loses his
> autonomy. (R. P. Wolff 1970: 9)
> 
> 
> 



Wolff resolves the dilemma in favour of autonomy, and on that basis
defends anarchism.



Some of Wolff's worries flow from the "surrender of
judgement" itself--how can it ever be rational to act
against reason as one sees it? Others flow from the fact that it is a
surrender *to the law*. On the first point, it is relevant to
notice that promises and contracts also involve surrender of judgement
and a kind of deference to others (see Soper 2002: 103-139), yet
a rational anarchist needs such voluntary commitments to substitute
for authoritative ordering. A principled objection to every surrender
of judgement is thus self-defeating. Moreover, there seem to be cases
in which by surrendering judgement on some matters one can secure more
time and resources for reflection and decision on things that are more
important, or with respect to which one has greater capacity for
self-direction. A partial surrender of judgement may therefore enhance
the agent's autonomy overall.



This suggests that Wolff's concern is better understood as
scepticism about whether it is justifiable to surrender one's
judgement wholesale to the law. Some philosophers have queried the
intelligibility of this doubt; they say that it is of the
*nature* of law that there is an obligation to obey it, at
least in its central case (Fuller 1958 [2000: 100]; Finnis 1979:
14-15). Some go so far as to conclude that it is therefore
absurd to ask for any *ground* of the duty to obey the law: law
is that which is to be obeyed (McPherson 1967: 64). We need a way into
this circle, and the best entrance is in specifying the nature of law
in away compatible with various theories of its nature. Three features
are especially important (drawing on Hart 1961 [1994: 193-200];
Raz 1975 [1990: 149-154]; and Lyons 1984: 66-68). First,
law is *institutionalized*: nothing is law that is not
connected with the activities of institutions such as legislatures,
courts, administrators, police, etc. Second, legal systems have a
*wide scope*. Law not limited to the affairs of small
face-to-face groups such as families or clans, nor does it only attend
to a restricted domain of life such as baseball. Law governs
open-ended domains of large, loosely structured groups of strangers
and it regulates their most urgent interests: life, liberty, property,
kinship, etc. But although law necessarily deals with moral matters,
it does not necessarily do so well, and this is its third central
feature: law is *morally fallible*. This is acknowledged by
both positivists and natural lawyers, whose slogan "an unjust
law is not a law" was never intended to assert the infallibility
of law.



The question of political obligation, then, turns on whether there is
are moral reasons to obey the mandatory requirements of a
wide-ranging, morally fallible, institutionalized authority. This
obligation purports to be comprehensive in that it covers all legal
obligations and everyone whose compliance the law requires. It is not
assumed to bind come what may, though it is to be one genuine
obligation among others. Some philosophers also consider that it
should bind people particularly to their own states, i.e., the states
of which they are residents or citizens, and that an argument that
could not show that one had more stringent duties to obey one's
own country than a similarly just foreign one would be in that measure
deficient (Simmons 1979: 31-35; Green 1988: 227-228).
Finally, it is common ground the obligation exists only when a
threshold condition of justice is met.


## 4. Transactional Theories



Two main strategies are traditionally employed in justifying political
obligation. One appeals to some sort of transaction existing between
the state and its members; the other appeals to specific sets of
duties that individuals have either simply qua moral agents, or in
virtue of particular positions they occupy. We will start by
considering the first one.


### 4.1 Consent



"The Right of all Sovereigns", says Hobbes in
*Leviathan* (chap. 42) "is derived originally from the
consent of everyone of those that are to be governed". In the
*Second Treatise* (SS 95) Locke says:



> 
> 
> Men being ... by nature all free, equal, and independent, no one
> can be put out of this estate and subjected to the political power of
> another without his own consent.
> 
> 
> 



The ideological influence of such theories in the struggles for
representative government and decolonization was immense. Few now
deny, in the words of the United States' *Declaration of
Independence*, that all governments "deriv[e] their just
powers from the consent of the governed", and it is perhaps not
too much to say that consent has become the "gold
standard" for *political* authority (and, indeed, for a
theory of any political power; Buchanan 2002).



But whose consent, and to what? Not the consent of our ancestors, for
such an "original" contract, as it was called in the
seventeenth century, can have no authority over those who did not
agree to it. A voluntarist theory requires the actual consent of each
subject. But this cannot mean consent to every law or application
thereof. The evident absurdity of that idea leads some to declare
consent "intrinsically implausible": As Finnis puts
it,



> 
> 
> the need for authority is, precisely, to substitute for unanimity in
> determining the solution of practical co-ordination problems which
> involve or concern everyone in the community. (Finnis 1979: 248)
> 
> 
> 



Consent theorists, however, have not generally proposed the principle
as a solution to "practical co-ordination problems".
Unanimous consent would be a very bad *decision rule*: the
transaction costs would be enormous and hold-outs could block many
desirable policies. Consent is more commonly proposed as a part of the
*constitution rule* that sets up the political community in the
first place. Consent theorists reject, therefore, Immanuel
Kant's idea (discussed below) that the mere capacity of
*A* to violently affect *B*'s interests is
sufficient licence for anyone to subject them both to a regime of
positive law (the *Metaphysics of Morals* SS 44). For
consent theorists, an *A*-*B* interaction does not
become a *candidate* for authoritative regulation until
*A* and *B* agree to unite under one jurisdiction. We
cannot ask which or what sort of authority is justified over both the
Kurds and the Shiites in Iraq until we answer why there should be one
at all. Beyond this foundational role, however, consent theorists take
different views of whether it has any further significance in policy.
Locke thinks it is then displaced by majority rule by delegates as the
natural procedure for most decisions; for Rousseau, this is but
another form of slavery.



Even in its confined role, however, consent has attracted powerful
criticism. (For a good survey see Simmons 1979: 57-100; for a
qualified defence see Beran 1987.) Much of it has focused on the
questions of whether consent is in fact given and, if given, whether
it would bind. The first thing to notice is that here consent is meant
to be a performative commitment that undertakes an obligation through
the very act of consenting. Thus, it is closer to how we normally
understand the notion of a promise, rather than to how consent is used
in other contexts. (When you consent to surgery, for example, you
don't incur an obligation to undergo surgery. You simply waive
your objection to undergoing surgery.) Like other promises and oaths,
however, there are limits to the validity of consent. Not only because
consent is invalid if secured via coercion, manipulation or duress,
but also because there are things we lack the moral power to consent
to. Locke, for example, argues that one can consent neither to be
killed nor to slavery, and thus not to anything tantamount to slavery,
including absolute government. One can imagine a similar argument to
the conclusion that political consent must be revocable. But as we
build in all these validity conditions, the commitment itself seems to
be doing less and less work, leading some to conclude it becomes
"essentially irrelevant" (Pitkin 1965 [1972: 57]). Consent
is saved from irrelevance only if we can explain why we *also*
value a power to bind ourselves to obey. David Hume could conceive no
reason at all: promise-keeping is an "artificial virtue"
serving the public good, just like obedience to law. So long as law is
tolerably legitimate--and Hume is prepared to give it a very wide
berth--a promise to obey is redundant, for any plausible answer
to the question of why we are bound by the promise would
"immediately, without any circuit, have accounted for our
obligation to allegiance"; "being of like force and
authority, we gain nothing by resolving the one into the other"
(Hume 1748 [1985: 481]).



Now, whilst a consent theory need not "resolve" allegiance
into a promise--there may also be non-promissory conditions on
obedience--, it must explain why it should be conditional on it.
Three sorts of arguments have been popular. First, there are
instrumental reasons for wanting deliberate control over the liability
to legal duties. In political authority, where the stakes are as high
as they come, the power to give and withhold consent serves an
ultimate protective function beyond what we could expect from the
fallible institutions of limited government. Second, consent enables
people to establish political allegiances by creating new political
societies or joining existing ones without awaiting the gradual
emergence of bonds of community and reciprocity; consent is an
immediate passport to "perfect membership" in a
commonwealth (Locke, *Second Treatise*, SS 119). Third,
though consent is defined by its performative character, ancillary
non-performative features naturally accompany it: consent also
expresses the acceptability, or at least tolerability, of the
government. This may mark consented-to rulers as salient from among a
number of possible contenders, and it may signal that they stand a
good chance of being effective, which is itself a necessary condition
for the justification of any political authority.



It is open to doubt how persuasive such considerations are. But
matters are even worse, for it is in any case clear that many people
have done nothing that counts as giving such consent. Even freely
given oaths of office and naturalization do not usually amount to a
general commitment to obey the law (Greenawalt 1987). Other acts are
even less plausibly so interpreted. Plato's *Crito*
introduces the idea that continued residence counts as some kind of
tacit consent to obey, and Locke extends that to include any enjoyment
of the benefits of government--"whether it be barely
travelling freely on the highway" (*Second Treatise*,
SS 199). Whatever the moral relevance of these facts, they do not
count as consent, for people do these things without imagining they
will create obligations, and they do them in circumstances in which
they have no feasible alternative. Other non-promissory actions, for
example voting or participating in politics, fare no better: many do
not vote, and few who do regard it as undertaking any duties at all.
Perhaps we can say that *if* people consent, and *if*
the relevant legitimacy conditions are fulfilled, then they will have
a duty to obey the law. That is obviously a far cry from establishing
law's claims, however.



Alternatively, we might amend our theory and justify political
authority not by appealing to the fact that we have consented to it,
but rather by appealing to the fact that we would, or perhaps should,
have consented to it, under some idealized condition--say, if we
had been more rational or better informed (Estlund 2008:
117-135). The problem with this move, however, is that in
grounding political authority in *hypothetical*, rather than
*actual*, consent, the view seems to lose much of its appeal.
The reason the notion of consent is especially attractive is that it
promises to reconcile being subject to someone else's authority
with retaining our capacity to act as autonomous agents. Consent does
that because insofar as we have consented to someone else having
authority over us, any obligations they impose on us, can ultimately
be traced back, although indirectly, to an exercise of our will,
namely our decision to consent. In this limited sense, the obligations
in question are obligations that we have willingly incurred. None of
this is true in the case of hypothetical consent, however. For our
will plays no role in generating any of the obligations that the
political authority imposes on us if the authority is justified not by
appealing to our actual choice to consent to it, but rather by
appealing to the hypothetical choice of some idealized version of
ourselves. Indeed, some have argued that hypothetical consent is best
understood as a version of natural duty view in disguise (Simmons
2005: 117). Ultimately, what justifies political authority here is the
fact that we have independent reasons to act as the authority
requires. For these are the very reasons that explain why we would (or
should) consent to an authority that requires those things if we were
more rational, or better informed. If so, hypothetical consent is at
most a heuristic device which helps us see what those reasons are (Raz
1986; Sreenivasan 2009; Thomson 1990; but see Enoch 2017).


### 4.2 Fairness



Even if we cannot be said to have meaningfully consented to them, it
seems clear that (reasonably just) political authorities do provide us
with crucially important benefits, such as security and the rule of
law. Some have pointed to these benefits to justify our duty to obey
and support the authorities in question. The core idea here is that
those who benefit from a fair scheme of cooperation have a duty to do
their allotted part under that scheme. In other words, if others obey
the law to our benefit, we owe them a duty not to take a free-ride on
their compliance (Hart 1955; Rawls 1964).



Upon closer look, however, some of the worries that afflict consent
theories crop up here as well. For intuitively it's only when
the benefits produced by a cooperative scheme are *accepted* by
its members that the existence of fair-play obligations is
uncontroversial. If a scheme of cooperation simply thrusts benefits on
people as the unavoidable fall-out of the cooperative activity of
others--even very valuable benefits--it is doubtful that we
have a duty to comply with the scheme. However, it's unclear in
what sense we can be said to have accepted the benefits provided by
the state. After all, the central benefits of an effective legal
system, including security and order, are the sort of non-excludable
public goods that Simmons (1979: 138-139) calls "open
benefits". They are provided to all those living in the
territory over which the state claims authority, regardless of whether
the benefits in question are welcomed or not. Rarely can these
benefits be avoided, and when they can, it's only at great cost.
More importantly, states typically claim the same type of authority
both over those who accept the benefits and over those who don't
(Nozick 1974; Rawls 1964; Simmons 2001: Chapters 1-2).



In reply, some have argued that although it is true that, normally,
acceptance is required in order to incur fair-play obligations, this
is not the case when it comes to the sort of "presumptively
beneficial" goods that states provide. Since goods like security
and order are necessary for any acceptable life, we can presume that
everyone would pursue these benefits, if doing so were necessary to
receive them. Failing to do so would be irrational after all (Klosko
1991, 2005; see also Arneson 1982; Dagger 1997, 2018). The problem
with this argument is that we often make choices that are irrational
in this sense but--leaving aside cases where paternalistic
interference might be justified--this is normally enough to
shield us from incurring the costs associated with making the
reasonable choice. Although it might be irrational not to buy a
particular life-insurance policy, if I refuse to do so, you're
not allowed to provide me with the policy and expect me to pay for it.
Why think that refusing to accept the benefits provided by the state
should not protect us in the same way from incurring the costs
attached to them? After all, these obligations are meant to rule out
attempts to take advantage of the members of a cooperative scheme by
exploiting their sacrifices and reaping the benefits produced by the
scheme without bearing any of the costs associated with their
production. But if I don't accept the relevant benefits because,
perhaps foolishly, I fail to appreciate their value, I am not trying
to take advantage of anyone.



Things are more complicated than we might think at first here because
it's not unrealistic that, at least in some cases, the rejection
of essential open benefits that we know we are going to receive anyway
might be the product of motivationally-biased beliefs triggered by a
desire to free-ride (i.e., irrational beliefs that we have developed,
perhaps unconsciously, in order to receive those benefits without
having to contribute our fair share to their production). And
it's plausible that when this is what explains our failure to
accept the benefits in question, our fair-play obligations are not
undermined (Renzo 2014). But there is no reason to think that this
explanation will be valid in every case in which the benefits provided
by the state are rejected. Realistically, some cases of rejection will
be genuine, and in those cases, fairness seems unable to vindicate our
obligation to obey the law.



A further complication concerns the fact that, despite being
non-excludable in the sense that they cannot be selectively provided
only to those who ask for them, many of the "open
benefits" provided by states are not fairly distributed among
all citizens. Even in societies that present themselves as liberal and
egalitarian, minorities are often discriminated against and suffer
serious injustice at the ends of their government. When this is the
case, the idea that obedience might required as a way of doing
one's fair share in maintaining a cooperative scheme for
reciprocal benefit surely lose much of its force (Shelby 2016; see
also Kelly 2022 and Yankah 2022).


### 4.3 Gratitude



Fairness (in its voluntaristic interpretation) requires some sort of
acceptance, as opposed to mere receipt, of the benefits produced by
the state in order for political obligation to be generated. However,
some transactions seem to generate obligations, despite the fact that
the benefits received have not been accepted. For example, if you
provide me with a benefit, I ought at least to be grateful, and
express my gratitude in a suitable form. Couldn't this idea be
used to justify political obligation? Some argue that it can. Obeying
the law, according to them, is a way for us to discharge the duty of
gratitude we owe our own state for the benefits we receive from it
(Plato [*Crito*]; W. D Ross 1930; Walker 1988; Klosko
1989).



One problem with this account is that the mere receipt of a benefit
doesn't seem enough to warrant a duty of gratitude. Perhaps I
enjoy listening to your trombone practice, but if you provide this
benefit to me unwittingly (perhaps you think that I'm away on
holiday, while you practice next door) do I owe you a duty of
gratitude? And do I owe you a duty if your intention is to harm me,
rather than benefit me? (Perhaps you know I'm next door, and you
practice loudly in order to bother me, unaware that there's
nothing I enjoy more than listening to your trombone.) This seems
implausible. The mere provision of a benefit doesn't seem to
generate duties of gratitude, unless the benefit in question is
provided with the right intention. But can states have intentions to
begin with (if not in a metaphorical sense)? Those who deny that
conclude that, for this reason, no duties of gratitude can be owed to
them (Simmons 1979: ch. 7; but see Knowles 2002).



This objection is, in a sense, symmetrical to one considered in
relation to fair-play accounts. There we saw that merely receiving the
services provided by the state is not enough to ground political
obligation unless those receiving these benefits have certain mental
states (i.e., the intention to accept the benefits). Here the
objection is that receiving the same services is not enough to ground
political obligation unless those providing them have certain mental
states (i.e., the intention to benefit their recipients). However,
it's worth noticing that the former objection applies here as
well. As we have seen, the services provided by the state are hard to
avoid and, more importantly, the demands that states make on us are
the same whether we welcome those services or not. But the claim that
we can incur duties of gratitude for benefits that we don't
welcome, and perhaps explicitly reject, seems controversial. Once
again, it might be that it's irrational to reject the benefits,
but if we do (and we are sincere), it's unclear that any costs
may be imposed on us as a way of discharging our duties of
gratitude.


## 5. Non-Transactional Theories



The appeal of transactional theories is that it seems intuitively
plausible that political obligation has something to do with the
duties generated by the important benefits that states provide to
their members. The problem is that the mere provision of benefits
seems insufficient to generate obligations unless certain
psychological conditions are fulfilled by those who receive the
benefits, and possibly also by those who provide them. But, as we have
seen, it is doubtful that these conditions will be fulfilled by all
those over whom states claim authority.



This has led some to abandon the idea that political obligation can be
grounded in some sort of transaction whereby we offer our allegiance
to our state in return for the services it provides. Some of the most
interesting developments in the contemporary debate consists in
exploring viable alternatives to this strategy.


### 5.1 Instrumental Justification



One influential line of argument justifies authority instrumentally,
as a way to help its subjects do what they ought.



> 
> 
> The normal and primary way to establish that a person should be
> acknowledged to have 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, than if he tries to follow the
> reasons which apply to him directly. (Raz 1994: 214; see also Raz
> 1986: 38-69; Raz 2006)
> 
> 
> 



Raz calls this the "normal justification thesis" (NJT). It
is satisfied only if the authority bases his directives on the reasons
which apply to the subjects (the "dependence thesis") and
if the subjects take his directives as "exclusionary" or
"pre-emptive" reasons (see Section 1 above), displacing
their own judgements about what is to be done on the merits (the
"pre-emption thesis"). Three points need emphasis. First,
a normal justification is not a unique justification, but one typical
to a variety of practical and theoretical authorities. At its core
idea is that justified authorities help their subjects do what they
already have good reason to do; it does not apply when it is more
important for the subjects to decide for themselves than to decide
correctly. Second, although NJT has similarities to
rule-utilitarianism, it is not a utilitarian theory: that requires
further commitments about what sort of reasons are relevant and how
about indirect policies may be pursued. Third, NJT does not require
valid authority to promote the subject's self-interest. For
example, if there are investments it is immoral to make (e.g., in
countries that tolerate slavery) then a consultant's
recommendations merit deference only they steer one away from those
investments: it is not enough (or permissible) for them to maximize
one's financial returns. NJT is governed by whatever reasons
correctly *apply* to the case, not reasons of which the agent
is aware, or which serve his self-interest narrowly understood.



Something like this does capture the way we justify deferring to
expert opinions of scientists or to the advice of doctors who know
better than we do. Were we to try to second-guess them we could not
profit from their expertise. To accept them as authoritative therefore
requires deferring to their judgement, and allowing that to displace
our own assessment of what is to be done. This is not *blind*
deference: the subject remains attentive to higher-order
considerations that determine whether the authority is trustworthy,
acting in good faith, and so on. And the deference may be limited in
scope and subject to checks of its effectiveness over time.



How far do such considerations apply to political authority? The idea
that political authority is primarily justified by virtue of some
valuable service it provides to those that are subject to it certainly
seems appealing. And the view has a broader application than we might
initially think, once we consider the important role that political
authority is normally deemed to play in creating or supporting
valuable schemes of social cooperation. If we have reasons to support
such schemes and the NJT is correct, we may be justified in obeying
the authority, even though the schemes in question are not those we
would have chosen ourselves. The NJT is thus considered by many as
well placed to justify obedience in general "co-ordination
problems" and in situations in which individual reasoning might
be self-defeating, for instance, in prisoner dilemmas.



A worry some have raised about NJT is that although able to vindicate
the claim that we have reason to act as the authority requires, it
seems unable to vindicate the claim that we have an obligation to do
so. As we have seen, authorities are normally thought to have the
moral power to impose obligations over us, or at least the right to
coerce us to act as they require. Experts, by contrast, lack such
power. Refusing to comply with their directives, no matter how
foolish, doesn't give them the standing to demand compliance or
to sanction us if we refuse. One of the main objections raised against
NJT is that it blurs the distinction between being subject to
someone's authority and merely receiving advice from an expert
(Perry 2005; Himma 2007; Darwall 2013: chs. 8-9; Tadros 2020;
but see Raz 2010). A further objection is that Raz's view fails
to pay sufficient attention to the procedural aspects of the
justification for political authority. We normally think that
it's important that the decisions of political authorities are
the product of fair-democratic procedures, but a purely instrumental
justifications seems insensitive to this sort of consideration
(Waldron 1999; Shapiro 2002; Hershovitz 2003; Christiano 2004; Viehoff
2011).



As for its capacity to deal with coordination problems, it is
uncertain how far deference to authority is really needed here. The
extent to which people need authoritative guidance to secure
cooperation varies with context, and law can solve some problems of
cooperation simply by providing information or by restructuring
incentives (see Green 1988: 89-157). That suggests that NJT
covers only a narrow range of legitimate state activity. But in
another way, NJT seems too broad. We do not think that political
authority should be acknowledged *whenever* the rulers can
better ensure conformity to right reason. There are matters that are
too trivial or otherwise inappropriate for political regulation. So
perhaps some sort of threshold condition must first be met, and NJT
should be confined to issues of general social importance.
(Raz's view has had a pervasive influence in the debate,
generating a vast literature. Recent works that engage with it include
Shapiro 2002; Perry 2012; Enoch 2014; Macklem 2015.)


### 5.2 Necessity and Natural Duty



Arguments based on necessity may be motivated by just that worry. On
this account, it is not enough that someone be able to help others
track right reason, he must be able to do so within a certain domain.
Locke thought the most urgent question for political philosophy was to
"distinguish exactly the business of civil government"
(Locke 1689 [1983: 26]), to determine what things are properly
Caesar's. Some contemporary writers take a related view.
Elizabeth Anscombe argues that the domain of authority is the domain
of *necessary* social functions.



> 
> 
> If something is necessary, if it is, for example, a necessary task in
> human life, then a right arises in those whose task it is, to have
> what belongs to the performance of the task. (Anscombe 1978: 17)
> 
> 
> 



But what tasks are necessary? Some, as we have seen, point to the
production of "presumptively beneficial public goods",
goods that anyone would want and which require social co-operation to
produce (Klosko 1991). Other views are more expansive. Finnis, for
example, believes that law must provide a comprehensive framework for
realizing a list of supposedly self-evident values including life,
knowledge, play and religion (Finnis 1979: 81-97,
154-156). In between, we find a range of nuanced intermediate
positions (see, for example, Copp 1999 and Perry 2012). An influential
intermediate position ties political authority to the realm of justice
and grounds obedience in a natural duty. According to John Rawls,



> 
> 
> [t]his duty requires us to support and comply with just institutions
> that exist and apply to us. It also constrains us to further just
> arrangements not yet established, at least when this can be done
> without too much cost to ourselves. (Rawls 1971: 115)
> 
> 
> 



The basis of Rawls's theory in necessity becomes evident if we
explore what it might be for a just institution to "apply to
us". An *Institute for the Advancement of Philosophers*
cannot benefit us, however justly, and then demand that we pay its
dues (Simmons 1979: 148). If so, it looks as if we need to accept the
benefits provided by a given institution before the institution in
question can be said to "apply to us". But that is to
transform a natural duty account into a weakly voluntarist one like
fairness (see above,
 SS4.2).
 One way to diagnose the force of such counterexamples is to notice
that, although *operating justly*, the *Institute* is
not something whose activities are *required by justice*: they
are optional, not necessary (Waldron 1993).



This line of argument is one of the most popular in the contemporary
debate. Some have developed Rawls' somewhat vague idea of a duty
to "support and comply with just institutions that exist and
apply to us" by drawing on Kant's political philosophy,
whose central idea is that political authority is necessary to give
concrete content and shape to moral rights that are otherwise
indeterminate in the state of nature (Christiano 2008; Ripstein 2009;
Stilz 2009). Others have drawn instead on Locke's political
philosophy, whose central idea is that even if fully determined rights
do exist in the state of nature, they cannot be adequately protected
without authoritative mechanisms designed to adjudicate and punish
their violations (Buchanan 2002; Wellman 2005). On either of these
views, we have a natural duty to leave the state of nature and enter
civil society in order to be able to live next to each other on
peaceful terms, respecting each other's rights.



This duty is often conceived as a positive duty, for example as a duty
to do our part in saving others from the dangers of the state of
nature by supporting just institutions (Wellman 2005). But this view
seems problematic if we accept that the dangers of the state of nature
are primarily the product of a range of coordination problems which
are generated by the fact that we live next to each other without
being subject to the same political authority. These are not dangers
that we can save others from by subjecting ourselves to the political
authority; these are dangers that we expose others to if we live next
to them without being subject to the political authority (Renzo 2008).
If so, the duty to support just institutions is best understood as
grounded in a negative duty not to threaten others, rather than in a
positive one. Political authority is necessary to neutralize the
threat we pose to each other when we live in physical proximity while
lacking mechanisms to set and enforce shared norms (Kant 1797; Renzo
2011; but see Steinhoff 2016).



The main challenge for Natural Duty views is, once again, that
it's unclear how we should make sense of the idea that certain
institutions "apply to us". For even if we rule out just
institutions whose activities are not required by justice (like
Simmons' *Institute for the Advancement of
Philosophers*), we are still left with a large number of
candidates that, in principle, seem to have authority over us. At
least when we think about the political authority of states, we
normally think that the scope of the authority is limited to the
individuals living on the territory of each state (or individuals
related in special ways to those living in their territory). And we
normally think that those individuals owe political obligations to
their state in particular, obligations that they do not owe to other
states, regardless of how just they are. But how can we vindicate this
idea, if what grounds political authority is our duty to support just
institutions? Why couldn't we discharge this duty by obeying and
supporting some state other than the one which claims authority over
the territory where we live? (See Waldron 1993 for an influential
answer to this question; and Simmons 2005 for further criticism.)



Another challenge concerns a second component of Anscombe's
claim that



> 
> 
> [i]f something is necessary, if it is, for example, a necessary task
> in human life, then a right arises in those whose task it is, to have
> what belongs to the performance of the task.
> 
> 
> 



Suppose we have adequately answered the question of which tasks states
ought to be perform in order to perform their socially necessary
functions. We then need to identify which rights they needed in order
to be able to perform such tasks? Anscombe refers to the right to have
what is necessary for the role, but what is that? Hume thought it
obvious that political society could not exist without "exact
obedience of the magistrate" but this is surely empiricism
without the facts. Legal systems do tolerate a certain amount of
disobedience without this hampering their capacity to function (Green
1988: 228-230).


### 5.3 Constitutive Obligations



A third type of non-transactional view challenges the very idea that a
justification for political obligation is needed. For example, Thomas
McPherson writes



> 
> 
> [W]hy should I obey the government is an absurd question. We have not
> understood what it *means* to be a member of political society
> if we suppose that political obligation is something we might not have
> had and that therefore needs to be *justified*. (McPherson
> 1967: 64)
> 
> 
> 



On this view, the many attempts to find independent moral principles
to justify obligation are not merely mistaken, they are conceptually
confused; they exhibit a "symptom of philosophical
disorder" (Pitkin 1965 [1972: 75]). The question of political
obligation should be addressed instead by attending to the meaning of
"member".



It is hard to find philosophers who still think that normative
questions can be resolved by linguistic considerations, but a more
sophisticated version of this strategy has been recently advanced by
Margaret Gilbert (2006), relying on the idea that members of political
communities are jointly committed to uphold its institutions, and
thereby obligated to play their part in executing this joint
commitment. (Notice, however, that for Gilbert, these obligations are
not moral in nature and thus her view is, in this important respect,
very different from all the other views we are considering.)



A more influential version of the constitutive argument appeals to the
value of associative obligations. Here the starting point is the
observation that we often find ourselves involved in relationships and
practices that come with special responsibilities attached to them.
Even when we have not chosen to be part of them, it's our very
membership in them that brings with it distinctive "role
obligations" (Hardimon 1994). Failing to realize this fact is
failing to correctly interpret the responsibilities and practices in
question (Dworkin 1986: 198). It's in this sense that Ronald
Dworkin claims that



> 
> 
> [p]olitical association, like family or friendship and other forms of
> association more local and intimate, is itself pregnant of obligation.
> (Dworkin 1986: 206)
> 
> 
> 



We can make sense of these valuable practices and relationships only
if we correctly understand the role that the obligations associated
with them are meant to play. Indeed, some go further and argue that
given that these roles are typically crucial components of our own
identity, correctly understanding the obligations in question is
necessary to avoid being alienated from ourselves (Horton 2010; Tamir
1995). The social preconditions of our identity are partly constituted
by these obligations, so making sense of them is required to
ultimately make sense of who we are. By making sense of these
obligations, we ultimately make sense of ourselves.



Some have resisted this move by pointing out that while people in
organic associations do often feel obligations to other members, we
normally seek an independent ground to justify them (see Simmons 1996;
Wellman 1997). After all, it's hardly surprising that members
who have been socialized within a certain practice will feel that
their identity is shaped in important ways by the responsibilities
associated with it. The worry is that, absent a justification for this
treatment, these feelings are merely an instance of false
consciousness. It's worth noticing, however, that whilst this
might be an objection for communitarian versions of the theory (Horton
2010), it is not an objection against Dworkin's formulation of
the associative view. Dworkin does believe that we have



> 
> 
> a duty to honour our responsibilities under social practices that
> define groups and attach special responsibilities to membership.
> (Dworkin 1986: 198)
> 
> 
> 



provided the group's members think that their obligations are
special, personal, and derive from a good faith interpretation of
equal concern for the well-being of all its members. But for him these
conditions are not a matter of the members' actual feelings and
thoughts. Rather, they are interpretive properties that we would do
well to impute to the members. Even so, why think that they ground a
duty of obedience, as opposed to a duty of respectful attention, or a
duty to apologize for cases of non-compliance? Certainly obedience is
not part of Dworkin's paradigm virtue of
"fraternity"--mutual aid and support are the normal
obligations there. Indeed, the classical associative model for
political authority was not fraternity, but *paternity*,
against which Locke argued so decisively. This is not to deny that we
owe something to those decent associations of which we find ourselves
non-voluntary members--but this doesn't seem enough to
vindicate political obligation (on Dworkin's view, see Perry
2008).



A second objection to the associative model consists in pointing out
that even if we concede that the model can justify obligations that
are owed to members of small groups, which are structured around close
personal interactions, this is not yet to say that it can do the same
with obligations that are owed members of large groups, such as our
political communities, most of whom we never have a chance to meet or
interact with (Simmons 2001: Chapter 4; but see Horton 2010 and
Gilbert 2006). It's unclear, however, how forceful this
obligation is. Suppose that I've been unable to interact with my
parents or my siblings for most--or even all--of my life,
for reasons that none of us could control. Does that mean that my
special obligations to them are automatically cancelled? Perhaps,
under certain circumstances, but not necessarily.



A more promising objection targets the idea that associative
obligations are non-voluntary. This is certainly true if by
"non-voluntary" we mean that we don't necessarily
choose to enter the relationships and the practices that are meant to
generate the obligations. While it might be unclear whether we can
choose to become friend with someone (as opposed to our friendship
forming spontaneously), we normally don't choose to enter our
family. Still, it is possible for parents to disown their children and
for children to deny their parents, under certain conditions. When the
attitudes of reciprocal trust and affection that are meant to support
these relationships disappear, the accompanying obligations are
significantly weakened, and possibly extinguished. This has led some
to argue that associative responsibilities are best understood as
"quasi-voluntarist". Although they are not premised on a
choice to enter the relationship with which they are associated, they
are conditional on the relationship being endorsed, if only in the
minimal sense that we could have stepped out of it, had we wished to
(Renzo 2012; but see Dagger 2018: 79-82). But once we go down
this road, we are faced, once again, with the worry afflicting
voluntaristic accounts, such as those that appeal to consent or
fairness. If endorsing our membership in the political community is a
condition for having the role obligations associated with such
membership, then anyone who fails to do so lacks political
obligation.


## 6. Scepticism and Anarchism



As the above survey suggests, there are plausible objections to each
of the dominant justifications for the duty to obey the law. (For
helpful assessments of other theories, see also Wasserstrom 1963;
Smith 1973; Simmons 1979; Huemer 2013.) Each leaves significant gaps
in the authority of law. This is not an impossibility proof--only
anarchists like Wolff think that justified political authority is
impossible. But neither is it just the familiar problem that
philosophical theories provide only a rough fit to our casuistic
judgements. The problem is that the typical justifications for
authority are all sensitive to context in a way that the claims of law
are not. To put it another way, law itself purports to determine how
far and in what contexts its authority binds. (For a formulation of
the sceptical view that explores its relationship with legal
positivism, see Kramer 1999.)



The resulting scepticism about the obligation to obey has given rise
to a debate about its significance (Senor 1987; Gans 1992: 90). As in
other areas of philosophy, some treat sceptical conclusions as a
*reductio* against whatever premises seem to support them;
others are inclined to follow the arguments where they lead. In
assessing the significance of scepticism, one needs to bear in mind
several points.



To begin with, scepticism about political obligation flows from the
special features of *legal* authority, in particular, its wide
scope, its institutionalized character, and its moral fallibility.
That is why the familiar principles by which we justify the authority
of teachers, parents, doctors, or executors do not readily generalize
to cover all laws. Most sceptical arguments are about over-reach. They
do not deny that legal authority is often valuable, or that there is
often content-dependent reason to do what law requires; they do not
deny that some people have moral obligations to obey; they do not even
deny that there are some laws that *everyone* has a moral
obligation to obey. They deny only that the conscientious subject is
bound to take the law at its word, that he must share the self-image
of the state.



This does not amount to endorsing a policy of "pick and
choose". It is consistent with a mixed policy: there may be
areas and issues with respect to which one should accept an obligation
of obedience and others where one should apportion one's
compliance to the merits. Hart writes:



> 
> 
> The recognition of an obligation to obey *the law* must as a
> minimum imply that there is at least some area of conduct regulated by
> law in which we are not free to judge the moral merits of particular
> laws and to make our obedience conditional on this judgment. (Hart
> 1958: 104)
> 
> 
> 



Sceptical arguments need not deny that there is some such area; they
deny that it coincides with law's actual claims.



Secondly, scepticism about obligation does not entail scepticism about
legitimacy: one may affirm that law is entitled to coerce while
denying that all of law's subjects have a duty to obey it (see
Green 1988; Simmons 1979; Edmundson 1998). Scepticism about the
possibility of legitimate government leads to anarchism of the
ordinary sort; scepticism about political obligation leads only to
what is called "philosophical anarchism": the denial that
law has all the authority it claims for itself.



Thirdly, scepticism is not the view that assuming an obligation to
obey would be *impermissible*, as suggested by anarchists like
William Godwin or R. P. Wolff and extreme individualists like Thoreau.
Rather, sceptics argue that there are also *other* morally
permissible attitudes to have towards the law. These attitudes may be
more prevalent, and more justifiable, than some philosophers
suppose.



Finally, it's worth noticing that, if successful, the objections
considered above only show that there is no principle capable of
grounding political obligation over all those over whom states claim
authority. But why think that a sound theory of political obligation
should appeal to a single principle? Perhaps our best account of
political obligation will employ different principles to justify the
state's right to demand our obedience in different areas (Klosko
2005) and over different individuals (Renzo 2012 and 2014). One way of
overcoming skepticism about political obligation is to be pluralist
about it (J. Wolff 2000; Knowles 2010; Mokrosinska; 2012)