Is There a Divine Right of Congress?
This essay was originally published at Libertarianism.org.
Last time I looked at the natural duty to obey the state because of what obedience gets us. This time I want to address another form the theory of natural duty can take: A general duty to obey just institutions.
In times past, this often mean the divine right of kings. God ordained that this person is the ruler and who are we to argue with or disobey God? Few argue that anymore, though. Instead, we’ve replaced the “right to rule” with the “duty to be ruled.” If a given institution processes certain characteristics, we have a moral duty to obey the commands it gives us.
After fair play, natural duty is, for instance, John Rawls’s preferred theory. Rawls admits that we can’t have a duty to obey the state unless we did something to create that duty (so fair play, consent, or another affirmative act). However, each of us has a general moral duty of justice. We much each behave justly, just as we must each keep promises, not steal, not murder, and so on. So far, there’s little to disagree with. It’s the next move, however, where Rawls raises natural duty–and where the controversy comes. That moral duty of justice, he writes, “requires us to support and to comply with just institutions that exist and apply to us.”
What this means is that if we find ourselves within the claimed jurisdiction of just institutions (within the borders of the United States, say) then our pre-political moral duty of justice compels us to support those institutions. In this case, “not obeying” is seen as a form of “not supporting,” and so we thus have a moral duty to obey.
Variations on this include a duty of non-interference. After all, just because something is good, it isn’t immediately clear I have a duty to support it. If I have a moral duty to be kind, for example, I don’t automatically have a moral duty to support your acts of kindness. But, if your acts of kindness are genuinely kind, then I probably should refrain from interfering with them. This is William A. Edmundson’s argument in “Legitimate Authority without Political Obligation.” He writes,
There may be no general, even prima facie, duty to obey the laws of a state, not even those of a just state; but there is a general prima facie duty not to interfere with the bonafide administration of the laws of a just state.
The way this gets us to something indistinguishable from political obligation is in the conclusion that non-interference includes going along with any punishment the state gives you as a result of you “interfering” with the administration of its laws by not obeying its commands. If I violate the state’s law, by not allowing myself to be sent to jail, I’m “interfer[ing] with the bonafide administration of the laws of a just state.” In this way, Edmundson’s “non-interference” and Rawls’s “support” mean pretty much the same thing: If institutions are just, you have a duty to do what they tell you to.
In assessing these arguments, let’s grant a large portion of them up front. Namely, we’ll assume that these institutions seeking our obedience are, in fact, just. It’s a capitulation I’ve made before in this series and it’s done to keep from having to repeat over and over a particular kind of libertarian counter argument. If it’s true that we never, under any circumstances, have a duty to obey an unjust state (we needn’t ever obey the Nazis, for instance), then for every argument for political obligation, the anarcho-capitalist libertarian can response, “Whatever. No state is ever just.” That may be true. But the point of these series is to show, in part, that even if we grant the justness of a state, the arguments for obligation still don’t work.
Okay, so our imaginary state is perfectly just–or just enough that whatever injustice it displays isn’t enough to entirely undermine its claims to authority. How far does natural duty then get us?
In both the Rawls and Edmundson versions, the old issue of particularity again potentially messes things up. Let’s say that only the United States is just. This would mean, of course, that those of us living within the U.S. have a duty to obey–but it would also mean that everyone living outside the has the same duty. And that doesn’t seem right.
It gets even weirder if more than one government can (rightly) claim to be just. If the natural duty account is accurate, and I have a duty to obey just insitutions, then I might find myself having to obey more than one goverment. We can quite easily imagine a situation where the (just) nation of Canada decides that it will exercise authority over North Dakota, which until now has been exclusively part of the (just) nation of the United States. Especially if Canada is more just than the U.S. the natural duty theory would seem to say that residents of North Dakota ought to obey (support, not interfere with) Canada–if they can’t just obey both.
Obviously, the U.S. government won’t go for that and will claim that, regardless of Canada’s claim to greater justice, North Dakota belongs to the United States. But governments are just collections of people, after all, each (presumably) with a moral duty of justice, a duty which includes supporting/not-interfering with just institutions. So natural duty here would mean that the members of the United States government ought to, in this case, obey Canada’s laws, and not their own.
Some have argued that there’s a special relationship between a nation and “its” people, such that Canada is always more just in relation to people geographically within its borders than any other country, while being less just for citizens of non-Canadian nations. Canada is, after all, uniquely aware of the needs of Canadians in a way that Mexico isn’t.
But again, this seems odd. A resident of northern North Dakota might justifiably feel he has more in common with residents of southern Manitoba than he does with the legislators 1,500 miles away in Washington, D.C.
Further, one thing all states claim as part of their authority is the right to prevent new nations from arising within their borders. I can’t start a new country in my neighborhood of Alexandria, Virginia and say I now only have a duty to obey it–even if it happens to be more just and attuned to my needs than the United States. But why not?
Let’s go back to Rawls. Our natural duty of justice, he wrote, “requires us to support and to comply with just institutions that exist and apply to us.” I’ve emphasized two of the more troubling words. Because justice isn’t binary. An institution–a state–isn’t either “just” or “unjust.” Every reasonably good, existing institution contains a bit of both.
Now of course I can’t “comply with” a non-existing institution, but I can support one. That’s what America’s founding generation did when they rebelled (i.e., failed to comply with) from Great Britain to support a new institution–the (eventual) United States of America.
As should be clear, despite any initial appeal it may have, the natural duty account of political obligation fairs no better than the other four major theories.