Michael Huemer is to be congratulated for producing a very readable, very enjoyable, very provocative, and—I admit it—generally very persuasive book on the tangled question(s) of political obligation and authority. As a way of sharpening the philosophical knives before dissecting some of his claims, I will admit that I am sympathetic to his arguments, his approach, and his conclusions and that I am full of admiration for the way he has avoided esoteric jargon, striven for clarity and simplicity, and used the understandable language of everyday life to discuss important and sometimes complicated issues.
In doing so, Huemer is returning moral philosophy to its rightful role as a tool to help us to live and behave properly, rather than as a vehicle for creating bizarre and picayune scenarios to stump other members of the philosophy faculty. He eschews (sorry for the jargon!) the, to my mind, pointless contrast between “rights” and “consequences” and revives the older tradition of rights as standards of action and consequences as the goals by which varying sets of standards are measured.[1] (Those who have insisted that moral philosophers of the past were “confused” because they do not fit neatly into the little boxes prepared for them by professors of philosophy have done great harm to moral discourse generally.)
The essay posted by Huemer here, however, gives only a faint and unsatisfying taste of what the book contains. The book is not only much longer than the essay, it’s far, far better. The essay here reads like a not-very-helpful précis of a symphony: “I start with some notes, build up a movement, make the music faster, then resolve the tension.” The book is much better than Huemer’s essay might suggest.
He poses the problem of political authority, which he breaks down into two elements:
Political legitimacy, the right, on the part of a government, to make certain sorts of laws and enforce them by coercion against the members of its society—in short, the right to rule; and
Political obligation, the obligation on the part of citizens to obey their government, even in circumstances in which one would not be obligated to obey similar commands issued by a nongovernmental agent.
Huemer denies that the commands of the state (or its agents or those acting with its alleged authority) have any content-independent authority. In other words, if one were commanded not to slap the crying children of strangers on an airplane, one really should obey the injunction, but only because there are reasons to do so independent of the command’s source. Decent people don’t do things like that, and anyone has the authority to stop them. The question posed by political authority is whether one is obligated merely because of the source of the injunction, and to this Huemer says no.
He offers quite good responses to a variety of arguments on behalf of the claim that one is obligated to obey the state merely because it is the state. (He also notes that one need not be obligated to do manifestly unjust things, etc., etc. He tries to cover all bases and does an admirable job in the process.)
There is one argument, however, that I think was missing from his list, and that is whether one may need, for at least some circumstances and some groups, a monopolistic authority that can help people to coordinate behavior, and that that authority would have its authority independently of the particular content of the commands. Consider that it doesn’t really matter whether one drives on the left side of the road or the right, so long as other drivers are doing the same. (In places where the roads are so bad one has to avoid potholes by driving into the other lane, such as parts of India, that rule is abandoned, but as a consequence, people tend to drive more carefully and slowly. If one wishes to drive quickly, say, on a German Autobahn, it really matters that all follow the same rule.) So there is a rule that helps to coordinate behavior, but the particular content of that rule is quite arbitrary; what matters is that all follow it. There may be cases in which it matters that one authority enforce that rule and bring sanctions to bear on violators, simply because having multiple enforcers could create serious chaos.
I think that that is the kind of problem that Immanuel Kant had in mind when he proposed his hypothetical social contract. What is central to Kant’s argument is that for everyone there are people “with whom he cannot avoid having intercourse.” Thus,
Experience teaches us the maxim that human beings act in a violent and malevolent manner, and that they tend to fight among themselves until an external coercive legislation supervenes. But it is not experience or any kind of factual knowledge which makes public legal coercion necessary. On the contrary, even if we imagine men to be as benevolent and law-abiding as we please, the a priori rational idea of a non-lawful state will still tell us that before a public and legal state is established, individual men, peoples and states can never be secure against acts of violence against one another, since each will have his own right to do what seems right and good to him, independent of the opinion of others. Thus, the first decision the individual is obliged to make, if he does not wish to renounce all concepts of right, will be to adopt the principle that one must abandon the state of nature in which everyone follows his own desires, and unite with everyone else (with whom he cannot avoid having intercourse) in order to submit to external, public and lawful coercion.[2]
That’s not a solid reason for enacting and enforcing victimless crime laws, but much law has to do with providing conventions that help people to coordinate their behavior to avoid collisions and to promote mutual benefits, not with commanding them to this or that.[3] (In fact, one could stipulate that “victimless crime laws” are not “laws” at all, but commands.[4]) Thus, to avoid collisions and violence among those “who cannot avoid having intercourse,” in at least some cases, one may have an obligation to obey the agents of an authority merely because that authority is the one that enforces the convention, and having multiple agents enforcing the same convention could itself lead to conflict. If the key is to avoid conflict, one standard and one enforcer may be necessary.
In a book one cannot rebut all possible arguments, but the argument from the value of standard conventions to promote civil peace and harmony (avoiding collisions, in other words) strikes me as a plausible reason for a monopolistic enforcer and I could not detect anywhere that Huemer had addressed the issue. The argument is similar to that advanced by the late James Buchanan in his short book The Limits of Liberty: Between Anarchy and Leviathan: even if we grant equal rights of all to their own bodies, “there are few ‘natural’ limits upon which general agreement might plausibly settle.”[5] Conventions work only if everyone (or at least almost everyone) obeys them, and sometimes it’s quite arbitrary just what the convention is; what matters is that everyone obeys it. Huemer addresses the issue of whether general disobedience to the state, or even opportunistic obedience to the state, would undermine the system of public order that allows us to go about our business and concludes that, even if such general obedience were beneficial, “other people will continue to obey whether you obey or not,”[6] so you have no obligation to obey. I did not find his treatment of this issue satisfactory, because it sounds like a defense of free riding which, when generalized (and Huemer seems to want to generalize his conclusions), could undermine the public good of following collision-avoiding conventions. Some might drive on the wrong side of the road without destroying road order altogether, but it’s still quite objectionable and should be condemned.
I imagine Huemer may have a good response, and perhaps he could provide a convincing argument as to why a monopoly would not be needed to enforce such content-independent coordinating conventions. I’m interested to learn what it might be, because I think it is a necessary element to rebutting Kant’s argument for the binding character of a hypothetical contract.[7]
There is another issue that I find far more troublesome in Huemer’s approach, and that is his reliance on intuitionism. He draws on it to resolve such issues as whether an agreement might be binding, what we owe to each other, what contracts entail, and so on. He relies on a mixture of empirical social science, common sense about human motivations, and intuitions about obligations as his fundamental tools of analysis. (He’s written another book on the subject of moral intuitionism, which I admit I have not yet read.)
Why do I find intuitionism unsatisfying? I spend a lot of my time outside of the United States and Europe. I meet and work with people from a wide variety of groups, ethnicities, religions, and so on. I do offer arguments for liberty to people who may have been raised to have intuitions that are rather different from mine. If I were merely to rely on my own intuitions about fairness or the like, I would not be able to advance the cause of liberty effectively.
I believe that there are universal arguments for liberty that rest on principles about choice and responsibility, which are universal features of human beings. (I present a number of arguments in Realizing Freedom: Libertarian Theory, History, and Practice.) Huemer, in contrast, rests his case on intuitions he shares with his readers. Intuitions are neither indisputable nor universally shared. He also notes that they change throughout history. So that raises several problems. First, is he arguing for the illegitimacy of the state only in the United States or a few other countries with similarly widely shared moral intuitions? And, if a particular historical trajectory was in fact necessary to produce the intuitions on which he draws, could it be the case that the state was a necessary element in the emergence of Huemer’s argument for its illegitimacy?
Charles Taylor poses the second question rather clearly in his essay “Atomism” (“atomism” is Taylor’s smear term for libertarianism), in which he argues for a “primacy of belonging,” rather than a “primacy of rights,” in other words, for political obligations as being prior to assertions of rights. Taylor argues that “the free individual of the West is only what he is by virtue of the whole society which brought him to be and which nourishes him” and that that “whole society” is necessarily state-governed.[8] Now Taylor opens the door a crack to the possibility that Huemer might be right:
Now, it is possible that a society and culture propitious for freedom might arise from the spontaneous association of anarchist communes. But it seems much more likely from the historical record that we need rather some species of political society.[9]
I think that Taylor knows little about his topic, but he raises some interesting issues. (His use of “communes” suggests 1960s/70s hippies, but libertarians should be reminded of the medieval self-governing communes, which were characterized by “personal liberty” and were the source of “civil society”; see the important work of Henri Pirenne in Medieval Cities: Their Origins and the Revival of Trade.[10]) Some societies produce liberal traditions and some don’t. I believe that all civilizations are capable of it and that all civilizations have narratives of liberty and narratives of power, just as “the West” does. It’s undeniable that history of “the West” is not a simple history of liberty. There’s been an awful lot of horror, violence, predation, war, and persecution as well. Whatever the character of the widely shared intuitions that Huemer deploys, they are neither universal nor timeless. What arguments could he make to someone at a different time or in a different civilizational context to convince him or her to embrace liberty and to reject the state?
There are many other interesting issues raised in this admirable book, but those two will suffice for now. I look forward to a robust discussion.
Notes
[1] See Randy E. Barnett, “Of Chickens and Eggs – The Compatibility of Moral Rights and Consequentialist Analysis,” Harvard Journal of Law and Public Policy, v. 12, n. 3 (1989).
[2] The Metaphysics of Morals, in Immanuel Kant, Political Writings, Hans Reiss (ed.), H. B. Nisbet (trans.) (Cambridge,1992), p. 137. Note that the acts of violence need not be violent acts of aggression; they could be simply collisions based on disagreements or misunderstandings of what one is or is not allowed to do.
[3] See Gerald J. Postema, “Coordination and Convention at the Foundations of Law,” The Journal of Legal Studies, v. 11, n. 1 (1982) and Robert Sugden, The Economics of Rights, Cooperation, and Welfare (Oxford: Basil Blackwell, 1986).
[4] Lon Fuller denied that coercion is part of the definition of law (“What law must foreseeably do to achieve its aims is something quite different from law itself.”) and restricted law to “the governance of human conduct by rules.” Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1969), pp. 108, 53.
[5] James Buchanan, The Limits of Liberty: Between Anarchy and Leviathan (Chicago: University of Chicago Press, 1975), p. 8.
[6] Michael Huemer, The Problem of Political Authority (New York: Palgrave Macmillan, 2013), p. 85.
[7] As Kant notes, “we need by no means assume that this contract (contractus
originarius or pactum sociale), based on a coalition of the wills of all private individuals in a nation to form a common, public will for the purposes of rightful legislation, actually
exists as a fact, for it cannot possibly be so.” From “On the Common Saying: ‘This May Be True in Theory, But It Does Not Apply in Practice,” in Immanuel Kant, Political Writings, p. 79.
[8] “Atomism” in Charles Taylor, Philosophical Papers, vol. 2, Philosophy and the Human Sciences (Cambridge: Cambridge University Press, 1985), p. 206. Taylor showed his naivety when he wrote “And indeed, some libertarians come close to espousing an anarchist position and express sympathy for anarchism, as does Nozick.” P. 207.
[9] Ibid., p. 208.
[10] Henri Pirenne, Medieval Cities: Their Origins and the Revival of Trade (Princeton, N.J.: Princeton University Press, 1974).