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ACCEPTANCE, FAIRNESS, AND POLITICAL OBLIGATION

Published online by Cambridge University Press:  23 April 2012

Edward Song
Edward Song*
Affiliation:
Louisiana State [email protected]
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Abstract

Among the most popular strategies for justifying political obligations are those that appeal to the principle of fairness. These theories face the challenge, canonically articulated by Robert Nozick, of explaining how it is that persons are obligated to schemes when they receive goods that they do not ask for but cannot reject. John Simmons offers one defense of the principle of fairness, arguing that people could be bound by obligations of fairness if they voluntarily accept goods produced by a cooperative scheme. Simmons, however, thinks that such a theory will do little work in justifying political obligations, since virtually no one voluntarily accepts state goods. This paper attempts to advance just such a theory by arguing that states are in fact genuine cooperative schemes and that Simmons is overly pessimistic in his appraisal of whether the majority of citizens accept the goods provided by their states.

Type
Research Article
Information
Legal Theory , Volume 18 , Issue 2 , June 2012 , pp. 209 - 229
Copyright
Copyright © Cambridge University Press 2012

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References

1. More specifically, as William Edmundson suggests, following Michael Kramer, the debate over political obligation concerns whether or not there are “prima facie, comprehensively applicable, universally borne, and content-independent,” general obligations to obey a society's legal norms. Such obligations are prima facie in the sense that the duty is not absolute but defeasible by other moral considerations, comprehensively applicable, in the sense that it applies to all of a society's laws, universally borne, in the sense that it applies to all of the members of a polity, and content-independent, in the sense that the obligation is tied not to the particular content of the law but rather to the mere fact that it is a law. See Kramer, Michael, Moral and Legal Obligation, in Blackwell Guide to Philosophy of Law and Legal Theory 179 (Golding, Martin and Edmundson, William eds., 2005)Google Scholar; and Edmundson, William, State of the Art: The Duty to Obey the Law, 10 Legal Theory 215–259 (2004) at 215–216Google Scholar.

2. Christopher Morris, An Essay on the Modern State (1998), at 214. See also Edmundson, supra note 1, at 218.

3. Hart, H.L.A., Are There Any Natural Rights? 64 Phil. Rev. 185 (1955)Google Scholar.

4. Rawls, John, Legal Obligation and Fair Play, in Law and Philosophy (Hook, S. ed., 1964)Google Scholar; and John Rawls, A Theory of Justice (1971), at 111–112.

5. Among contemporary attempts to justify the principle of fairness, see Arneson, Richard, The Principle of Fairness and Free Rider Problems, 92 Ethics 632 (1982)CrossRefGoogle Scholar; Cullity, Garrett, Moral Free Riding, 24 Phil. & Pub. Aff. 9 (1995)Google Scholar; Klosko, George, Presumptive Benefit, Fairness and Political Obligation, 16 Phil. & Pub. Aff. 241–259 (1987)Google Scholar.

6. Robert Nozick, Anarchy, State and Utopia (1974), at 90–95.

7. An exception is Gregory Kavka, who offers some brief remarks on such an approach in Gregory Kavka, Hobbesian Moral and Political Theory (1986), at 410–412.

8. John Simmons, Moral Principles and Political Obligations (1979), at 129.

9. Id. at 141.

10. For an example of how such a voluntarist approach might be applied to issues of state sovereignty and the conditions of justifiable intervention, see Song, Edward, Subjectivist Cosmopolitanism and the Morality of Intervention, 41 J. Soc. Phil. 135–151 (2010)CrossRefGoogle Scholar.

11. Cullity, supra note 5, at 9.

12. Klosko, supra note 5.

13. Simmons, John, The Principle of Fair Play, 8 Phil. & Pub. Aff. 327 (1979)Google Scholar. Simmons also thinks they can be bound by the principle if they have “tried to get (and succeeded in getting) the benefit” (id. at 327), but this condition seems superfluous. For if they have tried to get the benefit, then they have done so willingly and knowingly. It is this latter condition that really seems to matter.

14. Id. at 330.

15. Id. To be clear, the object of knowing acceptance is the cooperative good itself; to be obligated by considerations of fairness, we must know that we have received benefits produced by a cooperative scheme. The claim is obviously not that we are obligated only when we subjective believe that we are obligated.

16. Arneson, supra note 5, at 632.

17. Klosko, supra note 5.

18. Kavka, Gregory, Book Review (reviewing Simmons, A. John, Moral Principles and Political Obligations), 2 Topoi 228 (1983)CrossRefGoogle Scholar.

19. Id.

20. Simmons, Principle, supra note 13, at 336.

21. Arneson, supra note 5, at 632–633; Richard Dagger, Civic Virtues: Rights, Citizenship, and Republican Liberalism (1997), at 47–74.

22. Arneson, supra note 5, at 633.

23. Simmons, John, Fair Play and Political Obligation: Twenty Years Later, in Justification and Legitimacy 39 (2001)Google Scholar.

24. Id.

25. Id.

26. As Simmons himself suggests in another text:

Consider a simple case like joining a game of baseball. Many writers have held that although in joining the game I do nothing which could be construed as giving my consent . . . nonetheless, by participating in the activity I may be bound to be so governed. . . . The analysis of the ground of this moral bond, however, would appeal to something other than the performance of a deliberate undertaking, focusing instead on, e.g., the receipt of benefits from or the taking advantage of some established scheme.

Simmons, Moral Principles, supra note 8, at 89.

27. As Garrett Cullity suggests. See Cullity, supra note 5, at 24.

28. Other examples abound. Consider, for example, certain kinds of trade organizations that are made up of companies competing in the same marketplace that nevertheless cooperate with each other for mutual benefit. Such organizations might lobby on behalf of the whole industry or create shared standards or technologies, as often happens in the computer industry. Being composed of companies in fierce competition, such organizations would seem to lack the kind of thick spirit of cooperation and shared sacrifice that is characteristic of certain kinds of cooperative ideals. But if a company willingly and knowingly accepts the benefits of cooperation, then it would be unfair for it to fail to participate, even if these thick conditions were absent.

29. An exception might be boxing competitions, where there remains the tradition of bringing both fighters to the center of the ring to make sure that they are clear about the rules.

30. For more on this, see Simmons, Moral Principles, supra note 8, at 75–83.

31. Simmons, Principle, supra note 13, at 335.

32. Id.

33. Id.

34. Id.

35. David Easton, A Systems Analysis of Political Life (1965), at 278.

36. See id. at 67–277, 278–288; and Easton, David, A Re-Assessment of the Concept of Political Support, 5 Brit. J. Pol. Sci. 436–437 (1975)Google Scholar.

37. Iyengar, Shanto, Subjective Political Efficacy as a Measure of Diffuse Support, Pub. Opinion Q. 249 (1980)Google Scholar.

38. Easton, Systems Analysis, supra note 35, at 273.

39. Easton, Re-Assessment, supra note 36, at 450–451.

40. Gabriel Almond and Sidney Verba, The Civic Culture (1963).

41. Craig, Stephen C., Niemi, Richard G., and Silver, Glenn E., Political Efficacy and Trust: A Report on the NES Pilot Study Items, 12 Pol. Behav. 296 (1990)Google Scholar.

42. Id.

43. More specifically, 79.7% of respondents stated that it was “very important” to vote in elections, and 16% stated that it was “somewhat important.”

44. More specifically, 65.5% thought that it was “very important” to serve on a jury, and 29.6% thought that it was “somewhat important.”

45. More specifically, 73.3% responded with 7, 10.5% responded with 6, and 7.6% responded with 5.

46. More specifically, 17.3% were “very satisfied,” and 62.6% were “fairly satisfied.”

47. See Simmons, Moral Principles, supra note 8, at 56.

48. Id. at 196–201.

49. Id. at 129.

50. The best-known use of empirical data for these purposes is offered by George Klosko, who argues that moral theorizing ought to proceed via a process of reflective equilibrium in which “moral beliefs must be justified on the facts of our moral experience”; see George Klosko, The Principle of Fairness and Political Obligation 16 (1992). In other words, moral theorizing ought to begin with our considered moral intuitions and offer systematic justifications for them. On this basis, Klosko argues that skeptical accounts of political obligation ought to be abandoned simply because they conflict with widely shared and deeply held intuitions supporting widespread political obligations that are repeatedly born out in empirical studies. This approach is criticized by Leslie Green, who argues that it confuses different approaches to theory-building; see Green, Leslie, Who Believes in Political Obligation?, in For and against the State 1–18 (Sanders, John T. & Narveson, Jan eds., 1996)Google Scholar. I am sympathetic with Green's critique of Klosko on this particular point. It is important to note, however, the way in which this paper's use of empirical data is different from Klosko's. For Klosko, empirical evidence of widespread belief in political obligations is taken to be an important fact that any plausible theory needs to be able to explain. In contrast, the theory defended here advances an acceptance version of the theory of fairness. For this approach, empirical evidence of support or perceived obligation is not a fact that needs to be explained but rather is evidence that citizens willingly accept the benefits of the state and so become obligated to it. Evidence of widespread acceptance is not a constraint on an acceptable theory; it is what shows that the theory is true.

51. Simmons, Fair Play, supra note 8, at 41.

52. Tom Tyler, Why People Obey the Law 33 (2006).

53. Id.

54. Id. at 57.

55. Id.

56. For more on this, see William Edmundson, Three Anarchical Fallacies (2007), chs. 1–3.

57. See, e.g., Arneson, supra note 5.

58. See Edmundson, State of the Art, supra note 1, at 224–226, for a helpful discussion of this “presumption of liberty.”

59. Buchanan, Allen, Political Legitimacy and Democracy, 112 Ethics 699 (2002)CrossRefGoogle Scholar.