KEY TERMS

∙ legitimacy

∙ legitimate

∙ illegitimate

∙ consent theory

∙ explicit consent

∙ tacit consent

∙ normative political theory

WHAT MAKES AUTHORITY LEGITIMATE?

Some answers:

∙ divine right

∙ might makes right

∙ other signs of superiority

∙ right of the father to rule his household (patriarchy)

∙ merit

∙ following accepted procedures for choosing or identifying authorities

∙ consent of those who are ruled

∙ belief makes right: when those who are ruled believe that authority is legitimate, for whatever reasons

THREE QUESTIONS TO THINK ABOUT

1. Should consent be the/a key criterion of political legitimacy?

2. Does the authority (the right to rule) of the U.S. government today derive from the consent of the governed? Why or why not?

3. What would count as examples or evidence of consent in your answers to the above questions?

KEY TERMS

∙ wisdom

∙ ignorance

∙ Socratic method

∙ tacit agreement (tacit consent)

∙ explicit agreement (explicit consent)

∙ obligation (strong/weak, and as distinct from being forced to do something)

∙ thin self

∙ thick self

∙ "The Quarrel Between the Ancients and the Moderns"

∙ communitarians

SOCRATES VS. HIS CRITICS

The critic: It is implausible to believe in the kind of powerful obligation to obey the State articulated by Socrates. Socrates has gone too far. He is really "extreme."

Socrates: It is implausible to believe that social and political life could exist at all in the absence of tacit agreements and strong obligations. My critics fail to acknowledge the basic requirements of human society. They are "extreme" individualists.

HOW "EXTREME" IS SOCRATES?

▸ Under some circumstances, residence does seem to suggest that consent is operative.

▸ Under some circumstances, it makes sense to say that we are obligated to obey the law, even when we disagree with that law.

▸ What looks "extreme" to the critics looks "plausible" to Socrates. How can we account for the difference?

--the concept of "person"

THIN SELF

♦ an individual

♦ chooses its commitments

♦ precedes its roles and commitments

♦ sustains a distinction between "the real me" and "my roles"

THICK SELF

♦ not an individual

♦ is defined by its commitments

♦ no distinction between "the real me" and "my roles"

♦ "the real me" is my commitments

THE LAWS OF ATHENS SPEAKING TO SOCRATES

"we do not issue savage commands to do whatever we order: we give two alternatives, either to persuade us or to do what we say"

"do you think it possible for a city not to be destroyed if the verdicts of its courts have no force but are nullified and set at naught by private individuals?"

"You must either persuade [your government] or obey its orders, and endure in silence whatever it instructs you to endure . . . and if it leads you into war to be wounded or killed, you must obey"

"In war and in courts and everywhere else, one must obey the commands the one's city and country, or persuade it as to the nature of justice."

"you act like the meanest type of slave by trying to run away . . . contrary to your agreement to live as a citizen under us."

"you agreed, not only in words but by your deeds, to live in accordance with us"

"he who has experience of the manner in which we order justice and administer the state, and still remains has entered into an implied contract that he will do as we command him."

Do the Laws of Athens tell us we must obey political authorities, no matter what?

THINKING ABOUT TACIT CONSENT

Does residence/enrollment function as a sign of tacit consent and obligate consenting participants to obey the rules? If residents never express disagreement with the rules, should we assume that they have consented. Why/Why not?

Some examples to think about:

Long-term residence of white Americans in a region that mandates racial segregation-- In the absence of any expressed disagreement with those rules, is it fair to assume that white residents have consented to racial segregation?

Are students at the University of Washington duty-bound to honor the

rules regarding plagiarism by virtue of their enrollment at the University of Washington?

What are the consequences of our answers to these questions?

THINKING ABOUT THE AGREEMENT TO FOLLOW THROUGH WITH THE OUTCOMES OF PROCEDURES THAT WE HAVE CONSENTED TO

Here are some examples to ponder:

Students taking a course where it is known in advance that 50% of the students will fail.

Citizens who participate in elections, knowing that "the majority" will rule.

Citizens who pay taxes, even when these taxes support activities that specific citizens oppose.

   EMMA GOLDMAN

      (1869-1940)

The credo of the anarchist: "Question authority!"

"Anarchism is the great liberator of man from the phantoms [of authority]

that have held him [and her] captive."

The phantoms of authority:

▸ Religion

▸ Property

▸ Government

The anarchist alternative:

▸ Self-respect

▸ Independence

▸ Freedom

   YOU GET WHAT YOU ASK FOR

It's always a good idea to pay attention to the questions as well as the answers. The questions we ask tend to delimit the range of acceptable answers in such a way as to preclude other questions and answers from emerging. Anarchists are especially aware of this. Consider the following questions posed by political theorists, on the one hand, and anarchists, on the other:

Political theory: "Under what circumstances are governments legitimate?" Translation: "When is coercion by government legitimate?"

Anarchism: "Should governments exist at all?" Translation: "Why should coercion ever be considered legitimate?"

TYPICAL EXCUSES FOR GOVERNMENT

(according to Emma Goldman)

▸ it is based on natural human needs

▸ it maintains social order

▸ it diminishes crime

▸ it keeps lazy, unmotivated people from taking taking advantage of everyone else

THREE ARGUMENTS AT THE HEART OF ANARCHISM (NATHANSON)

      1. The Argument from Freedom and Autonomy

      2. The Argument from the Evil of Coercing Others

      3. The Argument Regarding the Evils of Governments

      THE CASE AGAINST ANARCHISM

■ Human Nature

      (But remember the recent history of women's athletics!)

■ Practicality

      (But remember the Italian Fascists, who got the trains to run on time!)

Consider the following warning against "realistic" thinking: "The limits of the possible in moral things are less narrow than we think. It is our weaknesses, our vices, our prejudices which shrink them."

      –J.J. Rousseau, The Social Contract

            DEFENDING POLITICAL LEGITIMACY AGAINST ANARCHISM

∙ Freedom is not the only primary value

∙ Coercion is sometimes justified; is not always wrong

∙ Governments may do some harm, but we are always better off with some government than with none.

Do you agree that we tend to be better off with some government than with none at all? If so, you may be a Hobbesian.

What's a Hobbesian? Stay tuned . . .  

HOBBES'S STATE OF NATURE

• Equality

• Discord

• Insecurity

". . . and the life of man, solitary, poor, nasty, brutish, and short." (76)

▸ The state of nature is a "state of war"

• Desire for peace

--Fear of death

--Desire for comfortable living

--Hope by our industry to make life comfortable

HOBBES'S LAWS OF NATURE

• general rules concerning the means of self-preservation; discovered by humans through our reasoning abilities

Law of Nature #1: We should promote peace, or use all the advantages of war.

Law of Nature #2: When we find others who are willing to pursue peace, we should be willing to give up some of our rights to all things, as long as everyone else is willing to do the same. The important thing is to leave an equitable balance of rights among all of us.

Law of Nature #3: We should follow through with our promise to give up some of our rights (as specified in #2 above) when we find others who are willing to do the same.

THE MODIFICATION OF NATURAL RIGHT, ACCORDING TO HOBBES

We have a natural and equal right to all things, especially our right to self-preservation, including the right to interpret for ourselves exactly what that right to self-preservation entails and requires. No one else has the right to tell us what we should desire or to interpret for us our requirements for self-preservation.

The legitimate modification of natural right:

∙ must be voluntary on the part of the modifier

∙ must provide some benefit to the modifier

∙ may not threaten the self-preservation of the modifier

Given all that Hobbes has told us up to this point, it seems that the legitimate modification of natural right is an abstract hypothetical, which would be impossible to implement in the state of nature. And yet, Hobbes will go on to argue that the legitimate modification of natural right in the state of nature is really conceivable and possible. How does he do it? Here is . . .

HOBBES'S SOLUTION

"made by a covenant of every man with every man, in such manner as if every man should say to ever man I authorize and give up my right of governing myself to this man, or to this assembly of men, on this condition, that thou give up thy right to him, and authorize all his actions in like manner. This done, the multitude so united in one person is called a COMMONWEALTH."

--What kind of covenant is this? Aren't covenants in the state of nature void?

–What does the term "authorize" mean?

–How are natural rights given up?

IMPORTANT FEATURES OF THE COVENANT

1. It is made between the participating individuals, not between those individuals and the sovereign.

2. It is made voluntarily; i.e., it is an act of consent.

3. It is made on the basis of a majority vote, which is subsequently binding on the minority.

4. The Commonwealth and the Sovereign are created at the same moment in time.

Hobbes tells us that the essence of the COMMONWEALTH is "one person, of whose acts a great multitude, by mutual covenants one with another, have made themselves everyone the author, to the end he may use the strength and means of them all, as he shall think expedient, for their peace and common defense.

And he that carrieth this person is called SOVEREIGN, and said to have Sovereign Power; and everyone besides, his SUBJECT."

Hobbes's definition of the SOVEREIGN POWER (or, LEVIATHAN):

"one person, of whose acts a great multitude, by mutual covenants with one another, have made themselves the author, to the end he may use the strength and means of them all, as he shall think expedient, for their peace and common defense."

POWERS OF THE SOVEREIGN

▸ The sovereign may not be accused of breaking the covenant.

▸ Those who did not "vote" for the sovereign power still ought to submit.

▸ The sovereign may not be accused of injustice.

▸ No sovereign may be executed.

▸ The sovereign must be the judge of opinions and interpretations.

▸ The sovereign must be the judge of rules of property and propriety, good and evil, lawful and unlawful.

▸ The sovereign has the right of hearing and deciding all controversies, of making war and peace, of choosing all political officers, ministers, and advisors.

▸ The sovereign has the power to reward and punish according to the law and his own judgment; and the power to give titles of honor

▸ The powers of the sovereign are inseparable and noncommutable.

WHY MUST THE SOVEREIGN HAVE SO MUCH POWER?

• Because anything less than this will interfere with the ability of the sovereign to protect his or her political subjects. And this (protection) is precisely why the commonwealth and sovereign power were instituted in the first place.

QUESTIONS FOR HOBBES

1. Why do we have to give up so much?

2. Why must the Sovereign be figured as "one person?"

3. Why are the participants in the covenant figured as "authors" of the consequent acts of the Sovereign?

Rousseau Hobbes

State of Nature + -

Account of Legitimacy strong weak

View of Gov't - +

Can We Reject Anarchism Without Endorsing Hobbes?

Here is Hobbes's refutation of anarchism:

♦ life is a higher value than freedom

♦ freedom means "liberty" (negative freedom, the freedom to be left alone to do whatever we wish; as long as the law does not prohibit particular activities, we are "at liberty" to pursue them); even with government, we have a great deal of liberty

♦ people willingly consent to curtail their freedom in order to preserve their lives (frequently, we do this out of fear or necessity)

♦ consent may take tacit or express (explicit) form; there is more consent than we often realize

♦ coercion may be justified when it comes after consent (and consent, remember, may be given under situations of duress)

♦ no government can control all aspects of our lives; so some liberty always remains

♦ government is preferable to no government (anarchy and state of war are the same thing)

♦ government with insufficient power is the same as no government at all

DEALING WITH HOBBES

Many readers of Leviathan are in agreement with Hobbes's characterization of the state of nature, but they do not agree with Hobbes's conclusions about political legitimacy. Here are some questions to think about as you develop your own assessment of Hobbes's arguments:

• Are you persuaded by Hobbes's state of nature? all of it, or just some parts of it?

• If you are not persuaded by Hobbes's state of nature, what is your alternative scenario?

• If you are persuaded by Hobbes's state of nature, are you also in agreement with his conclusions about legitimate political authority?

• Could Hobbes's state of nature yield a different version of political legitimacy than the one he came up with?

LOCKE'S ARGUMENTS AGAINST FILMER'S PATRIARCHAL ACCOUNT OF POLITICAL AUTHORITY:

■ Adam was not given this power by God

■ Even if he had been, his heirs had no right to it

■ Even if they had, there are no clear rules of succession

■ Even if there were, we can't identify Adam's actual heirs today

ROUSSEAU'S QUIP REGARDING FILMER:

". . . how do I know that a verification of title might not leave me the legitimate king of the human race?"

F: humans are born in subjection to paternal authority

L: humans ("men") are born free and equal

F: paternal and political power are the same

L: they must be distinguished

F: if man is born free, then property must be distributed equally (therefore, unequal property holdings are illegitimate and no right-thinking property owner will support the democratization of politics)

L: it is possible to reconcile freedom and natural equality with unequal property relations (therefore, property owners need not fear the democratization of politics)

LOCKE AGAINST HOBBES:

♦ the state of nature is not necessarily a state of war, but it can degenerate into this

LOCKE AGAINST FILMER:

♦ humans in the state of nature are naturally free; they are not born into subjection to authority

Each of these claims has important implications for Locke's subsequent arguments about legitimate government.

LOCKE'S STATE OF NATURE

"men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature."

▸ humans are free

▸ humans are reasoning beings

▸ they are obligated to obey the law of nature, and this sets limits on their behavior

▸ humans "belong" to God; therefore, they have a duty to preserve themselves and to contribute to the preservation of their fellow human beings

▸ humans have natural rights (which are God-given), including especially the right of freedom and the right not to be harmed

▸ because everyone is equal, everyone has the duty and the right to enforce the natural law (everyone has the right to punish violations of natural law)

▸ the punishment must be in proportion to the offense

▸ how do we know when the punishment is in proportion to the offense? what happens when it is not?

Why can't we just remain in the state of nature? Because the law of nature will not be properly enforced through available mechanisms in the state of nature.

On good days, the state of nature will be "a state of peace, good will, mutual assistance, and preservation."

On bad days, it will become a state of war: "a state of enmity, malice, violence, and mutual destruction." Whenever an individual's existence is threatened by another individual, there exists a state of war: "force, or a declared design of force upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war."

OBSTACLES TO THE PROPORTIONAL USE OF PUNISHMENT:

• self-interest

• passions

GOVERNMENT AS THE REMEDY FOR THIS PROBLEM:

The role of government, according to Locke, is to provide a neutral umpire to mediate disputes among citizens.

LOCKE'S CONCLUSION:

Mutual renunciation of the right to enforce the law of nature is good for everyone. (Even if I am impartial, can I count on everyone else to be?)

"for all being Kings as much as he, every man his equal and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit this condition, which, however free, is full of fears and continual dangers."

Locke's state of nature is "inconvenient" but not as inconvenient as Hobbes's.

Locke's state of nature points in the direction of limited government:

1. government is set up to perform limited functions, to serve as a neutral judge

2. people will only surrender their right to enforce the law of nature

3. the relationship between individual citizens and government is contractual: both sides have obligations

THE RIGHT TO ENFORCE THE LAW OF NATURE

1. to interpret the law of nature

2. to apply it to specific cases

3. to use force to support the judgment

All three of these rights must be surrendered to government.

Without this renunciation, no rights are secure.

And, consent to form a community, according to Locke, involves the obligation to be bound by the decision of the majority.

Why do people leave the state of nature and set up government? To remedy the "inconveniences" of the state of nature by setting up a government to judge their disputes.

THE FORMATION OF CIVIL SOCIETY

1. Individuals consent to give up the three-part right to enforce the law of nature. They consent to be obligated by the will of the majority.

This creates society.

2. Society sets up a government to act as judge.

--legislature

--executive

THE RIGHT TO ENFORCE THE LAW OF THE NATURE

1. to interpret the law of nature

2. to apply it to specific cases

3. to use force to support the judgment

PURPOSE OF GOVERNMENT

1. to create standing laws

2. to appoint neutral judges

3. to use the force of the community (the majority) to execute the laws and defend society

POWERS OF GOVERNMENT

1. Legislative– making the laws

2. Executive– overseeing their execution

3. Federative– management of security from foreign influence/invasion

"CONSENT" ACCORDING TO LOCKE

"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."

• obligations derive from consent

• obligations may not be inherited

• two kinds of consent: express (explicit) and tacit

• express consent makes one a "perfect member" of society

•examples of tacit consent:

–owning property

–enjoying benefits of civil society (e.g., roads and schools)

–mere residence

• tacit consent is less binding than express consent: if you leave the territory, you recover your natural liberty (you are out of society and back in the state of nature)

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LOCKE'S CRITICISM OF OTHER VERSIONS OF OBLIGATION

❑ paternal authority

–a misnomer (what about the mother?)

❑ parental authority

-is only temporary

❑ authority of the husband over the wife

–the marriage relations is actually based on the consent of booth parties; the wife retains rights concerning her self as an individual

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LIMITS TO ACCUMULATION OF PROPERTY IN THE STATE OF NATURE

1. The Spoilage Limitation

–you can't have more than you can use

2. The "Enough and as Good" Limitation

–you can't take more than your share; you must leave "enough and as good for everyone else

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AN EMERGING PATTERN IN LOCKE

Locke seems to retreat from the full implications of his arguments.

Example #1: He says that governments have legitimate authority and power over citizens only if they have consented. But he is perfectly willing to accept tacit nations of consent, such as residence. So, if you reside within the territory of a government, then you have "consented" to its authority. And, when you use money, you have "consented" to the unequal distribution of property.

Example #2: He subscribes to the labor theory of value and argues that individuals have property rights to whatever they mix their labor with. But these property rights, it turns out, do not exist for all individuals.

Example #3 (coming up): Individuals have the right to rebel against unjust authorities, but . . .

______________________________________________________________________________

WAS LOCKE AN ANARCHIST?

• each individual retains the right to judge public officials and to take action when s/he believes that power has been abused

• citizens are entitles to defend themselves against unjust rulers with any and all means

• the unjust ruler has placed itself in a state of war with its citizen-subjects

• force is the appropriate response in a state of war

• it is up to each individual citizen to decide whether a state of war with political authorities exists or not

• every individual citizen retains the right to resist illegitimate political authority

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RESISTANCE TO GOVERNMENT JUSTIFIED

I. When government violates the terms of the agreement under which it was set up

◦ if the executive ruler substitutes its version of the law for the legislature's

◦ if the executive prevents the legislature from meeting

◦ if the executive tampers with the means of choosing the legislators

◦ if a foreign power has influence over the government

II. Foreign conquest

______________________________________________________________________________

LIBERAL POLITICAL THEORY

▸ individualism

▸ society=the sum total of individuals

▸ instrumental view of politics

▸limited government

▸"negative" freedom (liberty)

______________________________________________________________________________

ASSESSING LOCKE

❑ a precious resource for liberal and democratic theories of legitimacy?

❑ a placebo?

❑ an instructive warning?

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LOCKEAN THEMES IN "THE BALLOT OR THE BULLET"

✓ representation

✓ legitimacy

✓ human rights

✓ labor theory of value

✓ violators of rights as criminals

✓ rule of law

✓ passion and punishment in the state of nature

✓ the right to rebel

✓ protective function of government

✓ change through peaceful means (representation, the ballot), or rebellion (revolution, the bullet)

Do we ever have an obligation (and not merely a right) to disobey the law?

Some countervailing sources of obligation, which may trump our obligation to obey the law:

• god (Grimke)

• self (Thoreau)

• justice (King)

Theories of critical citizenship justify the obligation to break the law under particular circumstances:

• when obeying the law forces the citizen to sin (Grimke)

• when obeying the law violates the integrity of the individual (Thoreau)

• when obeying the law perpetuates injustice and immorality (King)

THE DISTINCTION BETWEEN JUST AND UNJUST LAWS, ACCORDING TO MLK

"Law and order exist for the purpose of establishing justice."

1. A just law is compatible with the moral law or the law of god.

2. A just law uplifts human personality.

3. An unjust law is imposed on a minority group by a majority group and is only binding on the minority group.

4. A law is unjust if it is imposed on a group that had no part in creating it.

5. A law may be just on its face but unjust in its application (e.g., if it upholds an immoral practice).

CIVIL DISOBEDIENCE

is a carefully specified method for breaking the law so as to draw attention to its injustice.

▸ protest must be public

▸ protest must be nonviolent

▸ protesters must willingly accept the penalty of imprisonment in order to express respect for the law

HOBBES'S QUESTION:

How can governments keep the peace if citizens put conscience above the law?

THE CRITICAL CITIZEN'S QUESTION:

How can we balance the discretionary power of individuals and groups against the obligatory and coercive nature of the law?

AM I OBLIGATED TO OBEY/DISOBEY THE LAW?

1. What kind of government is in power? Does this government deserve to be respected?

2. What sorts of procedures were followed in making the law? Were these procedures fair?

3. What kind of law is it? Is this law just?