Liberalism, samaritanism, and political legitimacy

Philosophy and Public Affairs

Volumn 25, Issue 3, 1996, Pages 211-237

  Wellman, Christopher H ^a  

^a NONE

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EID: 0000541668     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.1996.tb00040.x     Document Type: Article

References (42)

1. Political theorists often presume that the question of what justifies the state's coercion is merely the flip side of the issue of what grounds the citizen's obligation to obey the state. This conclusion follows from mistaking the correlative of a state's moral right to coerce as a citizen's moral duty to obey, but the true correlative of the former is merely a citizen's lack of right to not be coerced. To emphasize: Political legitimacy entails only a moral right to create legally binding rules, not a moral right to create morally binding rules. The latter entails corresponding moral duties, but the former need not; it implies at most only legal duties. The supposed existence of moral duties involves an additional (typically unrecognized) assumption that there is a moral duty to obey just law. Finally, notice that the samaritan account of political legitimacy should not be criticized for its inability to explain political obligations since, as a theory of political legitimacy, it does not purport to provide an account of such obligations.
2. Ronald Dworkin makes a similar, but distinct, objection to justifying a state by appealing to its benefits in Law's Empire (Cambridge, Mass.: Harvard University Press, 1986), p. 194.
3. The harm to others principle to which I refer is the liberty limiting principle (often called the liberty principle or the harm principle) that J. S. Mill advocated in On Liberty. Joel Feinberg has offered the most sophisticated analysis of this principle in his book, Harm to Others (New York: Oxford University Press, 1984). Feinberg suggests that the harm principle forbids an agent to wrongly cause a second party to be worse-off than she would be otherwise.
4. One might object that sharing this brief ride is enough somehow either to signal Antonio's consent or to create a special bond between the 'car-mates.' This strikes me as farfetched, but those persuaded by this objection can simply alter the scenario, so that Bathsheba first appears as a hitchhiker in Pleasantville. I did not change the story this way because I would have then had to add a number of clumsy conditions about Antonio knowing that Bathsheba would not harm him or otherwise jeopardize his safety.
5. I defend this point at length below.
6. In Harm to Others, pp. 105-25, Joel Feinberg explains why the harm principle covers only the intersection of harms and wrongs. In other words, the harm principle prohibits one only from wrongfully setting back another's interests, and one's consent to be placed in a particular situation or undergo certain risks or treatment vitiates any wrongdoing on the part of another who does what is consented to.
7. The benefit to others principle (or simply the 'benefit principle') is analogous to the harm principle mentioned in note 3. A benefit to others principle forbids one from wrongly failing to make a second party better-off than she would be otherwise. As I will explain below, one's failure to benefit another is wrong when the other is in peril and one can rescue her at no unreasonable cost to oneself.
8. As Bernard Boxill has pointed out to me, there is one point of disanalogy because, unlike one's compatriots, Bathsheba clearly consents to be taken from Pleasantville. This consent does not disrupt the analogy, however, because the comparison is between a citizen and Antonio, and neither of these two give their morally valid consent.
9. Because of technological advances, we are increasingly interacting (and coming into conflict) with others to whom we are spatially disparate. In international business, for instance, conflicts frequently arise between parties who are thousands of miles apart. Unless special arrangements are made, these contests are typically adjudicated by the local authorities where the product is sold. This arrangement confirms that interacting/ potentially conflicting parties must appeal to the same authority and submit to the same power.
10. One might possibly object that the territoriality issue is a red herring because private schemes can and often do supply life-saving (or otherwise very important) benefits to those they serve. I agree that private agencies provide important benefits, and I admit that private agencies should be preferred when they can adequately replace coercive ones. The fact that private agencies currently provide many essential services is not necessarily a good objection, however, because it is doubtful that they could do so in a state of nature. Even if voluntary businesses could provide these benefits in the state of nature, however, I believe that the former could not remove us from a state of nature. I develop and defend this empirical assumption (which is admittedly necessary for my account of political legitimacy) later in this paper when I consider the anarcho-libertarian response to my views.
11. There are a number of ways a citizen can 'opt out,' so it is important to recognize that an absence of political legitimacy leaves room for unlimited permissible secession. Recall the distinction between political legitimacy and political obligation explained above: an absence of political obligation does not entail a similar lack of political legitimacy, and the former has much less striking implications. If there is no political obligation, citizens are morally free to break the law and to emigrate if they would like. If there is no political legitimacy, on the other hand, then the state's presence is impermissible and it has no right to force those within its jurisdiction to "play by the rules or leave." In the absence of political legitimacy, citizens have a moral claim to stay put and to be free from any legal interference; in other words, they may secede.
12. I do not claim that it is inconceivable that samaritanism would prohibit emigration as well as secession. Because I admit samaritan duties and the space this leaves for political legitimacy, I must admit that emigration may permissibly be limited where such limitation is compatible with samaritanism. This may sound like an awkward implication, but I suspect this is only because the circumstances would have to be radically counterfactual for this to be so. In particular, the chances are slim that all three of the following conditions would be met: (1) a society's population is so diminished that it could not perform its political functions if more citizens left; (2) those citizens who would voluntarily remain cannot find political stability elsewhere, i.e., they cannot also emigrate; and (3) for those who would prefer to leave, the burden of staying is not unreasonable. In the end, limiting emigration is normally impermissible because it is typically either unnecessary or too costly to those denied emigration, but limiting secession is more often permissible because it is more likely both necessary and not unreasonably costly to those who would prefer to secede. If circumstances were different and all three of the above conditions obtained, on the other hand, then samaritanism could be invoked to limit emigration. I am grateful to the journal's editors for suggesting that I clarify this point.
13. The careful reader will notice the discrepancy between Antonio having a duty and a citizen being permissibly coerced by her state (as opposed to having a duty to obey her state). This is intentional because I am proposing a model of political legitimacy, not a theory of political obligation. I believe that samaritanism is required for both, but the two are not the same. As I proposed earlier, political legitimacy is necessary, but not sufficient, for political obligation. Notice also that I am not tacitly assuming some principle justifying coercion to enforce performance of one's duties. Instead, I am suggesting that the presumption in favor of each citizen's freedom from coercion is outweighed by the necessity of political coercion to rescue all of us from the perils of the state of nature.
14. For illuminating discussions of consent theory, see Harry Beran, The Consent Theory of Political Obligation (London: Groom Helm Publishers, 1987);
15. and A. John Simmons, Moral Principles and Political Obligations (Princeton, N.J.: Princeton University Press, 1979).
16. do not consider hypothetical consent arguments here, not necessarily because they are unilluminating, but because I follow David Schmidtz in believing that they ultimately appeal to the benefits of political society rather than consent. See David Schmidtz's article, "Justifying the State," Ethics 101 (October 1990): 89-102.
17. Ronald Dworkin, in Law's Empire,
18. and Yael Tamir, in Liberal Nationalism (Princeton, N.J.: Princeton University Press, 1993), develop 'associative' accounts of political obligation, for instance.
19. See my article, "Associative Allegiances and Political Obligations," forthcoming in Social Theory and Practice.
20. A. John Simmons is similarly skeptical of this approach in his article, "Associative Political Obligations," Ethics 106 (January 1996): 247-73.
21. For an explanation of the causal component of the harm principle, see Joel Feinberg, Harm to Others, pp. 165-71. I will critically assess Feinberg's stance on the causal efficacy of samaritan omissions below.
22. Jeffrie G. Murphy, "Blackmail: A Preliminary Inquiry," The Monist 63, no. 2 (1980): 168 n. 6.
23. Joel Feinberg, Harm to Others, pp. 126-86.
24. Joel Feinberg provides a full account of why the harm principle prohibits only conduct which produces or causes harm in Harm to Others, pp. 105-25.
25. Joel Feinberg states and explains these conditions in Harm to Others, pp. 159-63.
26. The duck-billed platypus is categorized as a mammal despite the fact that its young are hatched from eggs.
27. Feinberg, Harm to Others, p. 176.
28. Feinberg discusses explanatory and nonexplanatory causal citations in Harm to Others, pp. 176-77.
29. As I mentioned in note 6, Feinberg's harm principle prohibits one only from wrongfully harming others.
30. Allen Buchanan provides an exceptionally clear explanation of the problems of endorsing negative rights while denying positive rights in his book, Ethics, Efficiency, and the Market (Totowa, N.J.: Rowman & Littlefield, 1988), pp. 64-78.
31. Authors like David Friedman, Bruce Benson, and Randy Barnett argue in this manner. To my knowledge, the most impressive attempts to show that the state cannot be justified in terms of functions which cannot be performed in its absence are Benson's The Enterprise of Law (San Francisco: Pacific Research Institute, 1990),
32. and Barnett's article, "Restitution: A New Paradigm for Criminal Justice," Ethics 87 (July 1977): 279-301;
33. and Barnett's lengthy unpublished manuscript, "The Function of Justice and the Rule of Law." I am indebted to Randy Barnett for showing me that descriptive anarchism should not be dismissed lightly; my thinking on this subject has been influenced dramatically by our helpful conversations.
34. The samaritan model does recognize an important difference between compatriots and foreigners, however, because the former contribute to one's own political benefits whereas foreigners do not. This explains why we may have more substantial and more frequent samaritan duties to our fellow citizens (since the reasonableness of the chores we must perform is measured in terms of the burdens we endure minus the benefits we receive). Thus, it is not that the samaritan model does not distinguish at all between compatriots and foreigners, it is merely that it does not do so in a manner that rules out political duties to benefit foreigners.
35. Immanuel Kant, The Metaphysical Elements of Justice (New York: Macmillan, 1965), trans. John Ladd, p. 76. Although I follow Kant in alleging that duties to ensure political stability are owed to all persons (not just current compatriots), our views differ in a number of important respects. Most significantly, Kant does not distinguish between political legitimacy and political obligation, nor does he recognize that the initial duty required is a positive duty (and even if he did, he would not likely characterize it as - or limit it to - a 'samaritan' duty). In addition, I reject the account of positive and negative freedom he invokes to politically bind citizens. Despite these differences, our arguments share important features. In light of this, one might question whether I follow Kant in positing a duty among states to enter into a cosmopolitan federation. I have no firm view on this matter, but I doubt that such a 'world state' is required. I recognize that similar dynamics exist between countries that would exist among individuals in the state of nature, but I suspect that collective-decision and collective-action problems (among other things) keep states from violating each other's rights in the way that individuals would in a state of nature. I appreciate the editors' suggesting that I compare my view to that of Kant.
36. Allen Buchanan, "The Morality of Inclusion," Social Philosophy and Policy 10, no. 2 (1993): 233-57.
37. Like most authors, I am loathe to encourage larger, more powerful countries to interfere with the autonomy of smaller, more vulnerable ones. Consequently, I would prefer for imperiled states to be assisted by international task forces designed specifically to help create and maintain peaceful and stable governments. If no such body is able and willing to assist, however, the people of one country might have a duty to assist the people of another territory.
38. In other words, since two liberals may emphasize liberty to varying degrees, they are liable to disagree about the permissiblity of particular secessionist movements. For instance, one author might believe that the American Revolution (which was actually a secession) was justified but that the South had no right to secede from the Union, whereas a second might allege that both had a right to independence, and a third could insist that neither had any such right. Their disagreements boil down to their differing emphases upon liberty and the duty to benefit others.
39. Given that this samaritan duty obtains only when citizens themselves share in the political benefits, the question arises as to what conception of benefits (objective, subjective, or 'reasonable person') is at work here. I suspect that the usual difficulties will attach to any choice (the objective standard will allow for individuals to suffer subjectively and the subjective standard would limit the state too much, for instance), but I am inclined to favor a reasonable person standard of benefits. I am grateful to the editors for raising this question.
40. This feature of the samaritan model of political legitimacy allows it plausibly to distinguish between justified and unjustified states, unlike other accounts (the consent approach, for instance, must implausibly allege that just states have received consent while unjust ones have not).
41. Indeed, not only do I think that samaritanism cannot alone justify the functionalism of political legitimacy, I believe that the functions of a government are not the whole story. I have suggested elsewhere that this functional component must be combined with a consent mechanism for groups able to perform the requisite political functions. I argue for this hybrid account of political legitimacy in my essay, "A Defense of Secession and Political Self-Determination," Philosophy & Public Affairs 24, no. 2 (Spring 1995): 142-71.
42. Of course, not all assumptions of positive rights are "inexpensive." My view has a small cost, however, because it supposes only samaritan rights. It should be pointed out, though, that these samaritan rights are not sufficient to purchase a 'full-blown' liberal welfare state; the latter requires much more expensive positive rights. I am not suggesting that such a state is illegitimate, but it would require more than the samaritan rights I posit in this essay.