Natural rights and political legitimacy

Social Philosophy and Policy

Volumn 22, Issue 1, 2005, Pages 314-329

  Morris, Christopher W ^a  

^a UNIVERSITY OF MARYLAND   (United States)

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EID: 12144269413     PISSN: 02650525     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0265052505041129     Document Type: Review

References (52)

1. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), ix.
2. Déclaration des Droits de L'Homme et du Citoyen, art. 2 (August 1789). Translation mine.
3. Nozick, Anarchy, State, and Utopia, 151.
4. David Schmidtz's distinction between teleological and emergent justifications of institutions is helpful in this context. "The teleological approach seeks to justify institutions in terms of what they accomplish. The emergent approach takes justification to be an emergent property of the process by which institutions arise." David Schmidtz, "Justifying the State," Ethics 101, no. 1 (1990): 90. The account of justice that Nozick defends in Part II of Anarchy, State, and Utopia commits him to an emergent conception of justification. See also his critical discussion of "a utilitarianism of rights," the view that one may or must violate someone's rights whenever this would minimize the total quantity of rights violations in the world ( Anarchy, State, and Utopia, 28). Someone who thought that a state's violation of people's rights would be permissible whenever it would make their rights more secure would not understand these rights, as Nozick does, as "side constraints".
5. David Schmidtz's distinction between teleological and emergent justifications of institutions is helpful in this context. "The teleological approach seeks to justify institutions in terms of what they accomplish. The emergent approach takes justification to be an emergent property of the process by which institutions arise." David Schmidtz, "Justifying the State," Ethics 101, no. 1 (1990): 90. The account of justice that Nozick defends in Part II of Anarchy, State, and Utopia commits him to an emergent conception of justification. See also his critical discussion of "a utilitarianism of rights," the view that one may or must violate someone's rights whenever this would minimize the total quantity of rights violations in the world ( Anarchy, State, and Utopia, 28). Someone who thought that a state's violation of people's rights would be permissible whenever it would make their rights more secure would not understand these rights, as Nozick does, as "side constraints."
6. See especially A. John Simmons's writings, especially Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979), chap. 3, and On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton, NJ: Princeton University Press, 1993), chaps. 3-4 and 7-8. See also Leslie Green, The Authority of the State (Oxford: Clarendon Press, 1988), chap. 6.
7. See especially A. John Simmons's writings, especially Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979), chap. 3, and On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton, NJ: Princeton University Press, 1993), chaps. 3-4 and 7-8. See also Leslie Green, The Authority of the State (Oxford: Clarendon Press, 1988), chap. 6.
8. See especially A. John Simmons's writings, especially Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979), chap. 3, and On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton, NJ: Princeton University Press, 1993), chaps. 3-4 and 7-8. See also Leslie Green, The Authority of the State (Oxford: Clarendon Press, 1988), chap. 6.
9. What Jean Hampton calls "endorsement consent" might be interpreted as a form of genuine consent. "A regime that receives what I call endorsement consent gets from its subjects not just activity that maintains it but also activity that conveys their endorsement and approval of it." Jean Hampton, Political Philosophy (Boulder, CO: Westview Press, 1997), 96.
10. See the works by Simmons and Green cited above in note 5. Discussions of consent are often less clear than they might be. Tacit consent is frequently confused with hypothetical consent (which is not a genuine species of consent), and agreement or consensus are often thought mistakenly to be forms of consent.
11. Nozick's difficulty in establishing this - Part I takes up almost half of Anarchy, State, and Utopia - is an indication of the extent of the problem. I have argued that Nozick fails; see Christopher W. Morris, An Essay on the Modern State (Cambridge: Cambridge University Press, 1998), 166-71.
12. Nozick, Anarchy, State, and Utopia, 149.
13. See A. John Simmons, "Consent Theory for Libertarians," in this volume.
14. Contracts are mechanisms for collective decisions, as they enable two or more individuals to act together. That the matter of state enforcement and adjudication of contracts is more problematic than most people think is defended in Morris, An Essay on the Modern State, 275-76.
15. "Taxation of earnings from labor is on a par with forced labor." Nozick, Anarchy, State, and Utopia, 169.
16. Details as well as some support for this account can be found elsewhere: for example, I have argued that states in modern times are distinctive territorial forms of political organization that claim sovereignty over their realms and independence from other states. See my An Essay on the Modern State (cited above in note 8); as well as my essay "The Modern State," in Gerald F. Gaus and Chandran Kukathas, eds., The Handbook of Political Theory (London: Sage Publications, 2004), 195-209; and my "Are States Necessarily Coercive?" (manuscript).
17. Details as well as some support for this account can be found elsewhere: for example, I have argued that states in modern times are distinctive territorial forms of political organization that claim sovereignty over their realms and independence from other states. See my An Essay on the Modern State (cited above in note 8); as well as my essay "The Modern State," in Gerald F. Gaus and Chandran Kukathas, eds., The Handbook of Political Theory (London: Sage Publications, 2004), 195-209; and my "Are States Necessarily Coercive?" (manuscript).
18. Details as well as some support for this account can be found elsewhere: for example, I have argued that states in modern times are distinctive territorial forms of political organization that claim sovereignty over their realms and independence from other states. See my An Essay on the Modern State (cited above in note 8); as well as my essay "The Modern State," in Gerald F. Gaus and Chandran Kukathas, eds., The Handbook of Political Theory (London: Sage Publications, 2004), 195-209; and my "Are States Necessarily Coercive?" (manuscript).
19. My cumbersome formulation is due to the fact that many laws do not create or recognize obligations (e.g., power-creating laws).
20. On reasons to obey, see my brief remarks at the conclusion of this essay.
21. For instance, laws requiring drivers to come to a complete stop at stop signs, forbidding jaywalking, forbidding serving minors alcohol, or requiring the payment of local sales taxes on goods purchased out-of-state (in the U.S.). I pick examples of laws that most of us disobey with some frequency. Even noncompliance with more serious laws-e.g., military conscription laws and tax laws-may not undermine a state or threaten its existence. More could be said here as noncompliance with the law will undermine the state in some circumstances, but it is not essential to my point in the text.
22. Someone is a subject in this sense if he or she is obligated by - subject to - the laws of a state. Citizens are a proper subset of the class of subjects; they are members of a state and enjoy a certain status and certain rights not extended to mere subjects.
23. Jonathan Wolff, An Introduction to Political Philosophy (Oxford: Oxford University Press, 1996), 42.
24. "[T]he right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it. The state is considered the sole source of the 'right' to use violence." Max Weber, "Politics as a Vocation" (1919), in From Max Weber: Essays in Sociology, ed. and trans. H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1946), 78 (emphases changed).
25. A. John simmons, "Justification and Legitimacy," reprinted in Simmons, Justification and Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press, 2001), 130.
26. For those conversant with the literature, the distinction I am drawing between minimal and full legitimacy is not Simmons's important distinction between justification and legitimacy. The conception of minimal legitimacy that I am sketching is different both from many popular conceptions of legitimacy and from Simmons's notion of justification. Christopher Wellman employs a minimalist conception of legitimacy, albeit not mine: "[P]olitical legitimacy is distinct from political obligation; the former is about what a state is permitted to do, and the latter concerns what a citizen is obligated to do." Christopher H. Wellman, "Liberalism, Samaritanism, and Political Legitimacy," Philosophy and Public Affairs 25, no. 3 (1996): 212.
27. "Without justice, what are kingdoms but great robber bands?" Augustine, Political Writings, ed. Ernest L. Fortin and Douglas Kries, trans. Michael W. Tkacz and Douglas Kries (Indianapolis, IN: Hackett Publishing, 1994), 30. "Justice is the first virtue of social institutions, as truth is of systems of thought." John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 3.
28. "Without justice, what are kingdoms but great robber bands?" Augustine, Political Writings, ed. Ernest L. Fortin and Douglas Kries, trans. Michael W. Tkacz and Douglas Kries (Indianapolis, IN: Hackett Publishing, 1994), 30. "Justice is the first virtue of social institutions, as truth is of systems of thought." John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 3.
29. Morris, An Essay on the Modern State, chaps. 4 and 6. In this book I do not explicitly draw the distinction between minimal and full legitimacy that I make here.
30. Simmons reads Locke to say that a limited state's justification is "a necessary condition for the legitimation (by actual consent) of any particular limited state's rule. Consent is necessary-but not sufficient-for legitimacy and political obligation, (in part) because the justification of a type of state is necessary for consent to a token of that type to be binding. We cannot bind ourselves by consent to immoral arrangements.... A state must be on balance morally acceptable and a 'good bargain' for our consent to succeed in legitimating it." Simmons, "Justification and Legitimacy," 129 n. 18. See also Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 88-94.
31. Simmons reads Locke to say that a limited state's justification is "a necessary condition for the legitimation (by actual consent) of any particular limited state's rule. Consent is necessary-but not sufficient-for legitimacy and political obligation, (in part) because the justification of a type of state is necessary for consent to a token of that type to be binding. We cannot bind ourselves by consent to immoral arrangements.... A state must be on balance morally acceptable and a 'good bargain' for our consent to succeed in legitimating it." Simmons, "Justification and Legitimacy," 129 n. 18. See also Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 88-94.
32. Readers will recognize Hobbes's "sovereignty by acquisition" here.
33. Note that rights can be natural in the ways described without committing one either to understanding them as indefeasible or to moral realism. Natural rights, much like natural duties, might be capable of being overridden by other considerations. And a projectivist or quasi-realist account of morals should be able to endorse such rights as well as natural duties.
34. See James Buchanan, The Limits of Liberty (Chicago, IL: University of Chicago Press, 1975), chap. 2; and David Gauthier, Morals by Agreement (Oxford: Clarendon Press, 1986), chap. 7. See also Morris, An Essay on the Modern State, chap. 6.
35. See James Buchanan, The Limits of Liberty (Chicago, IL: University of Chicago Press, 1975), chap. 2; and David Gauthier, Morals by Agreement (Oxford: Clarendon Press, 1986), chap. 7. See also Morris, An Essay on the Modern State, chap. 6.
36. See James Buchanan, The Limits of Liberty (Chicago, IL: University of Chicago Press, 1975), chap. 2; and David Gauthier, Morals by Agreement (Oxford: Clarendon Press, 1986), chap. 7. See also Morris, An Essay on the Modern State, chap. 6.
37. It is possible our natural rights may be forfeited, for instance, by committing serious injustices against others. (Locke suggests this possibility in his Second Treatise of Government, chap. 4, sec. 23. See A. John Simmons, The Lockean Theory of Rights [Princeton, NJ: Princeton University Press, 1992], especially 148-61.) But an important difference between the conventionalist rights defended by Gauthier and natural rights is that it is possible on the first view for some humans to lack rights even though they have not by any act forfeited them. For instance, agents who have little to offer others and in whom no one takes an interest may lack moral standing in Gauthier's theory. (Something has moral standing insofar as it is owed moral consideration - for instance, others are obligated to it.) Rights are held by virtue of conventions of various kinds, and it is possible that some agents, through no fault of their own, will fail to satisfy the conditions necessary for the attribution of moral standing. In some historical circumstances, it is possible that morals by agreement would not deem unjust a system of slavery or would not consider slavery an injustice to the slaves. See Christopher W. Morris, "Justice, Reasons, and Moral Standing," in Rational Commitment and Social justice: Essays for Gregory Kavka, ed. Jules L. Coleman and Christopher W. Morris (Cambridge: Cambridge University Press, 1998), 186-207.
38. It is possible our natural rights may be forfeited, for instance, by committing serious injustices against others. (Locke suggests this possibility in his Second Treatise of Government, chap. 4, sec. 23. See A. John Simmons, The Lockean Theory of Rights [Princeton, NJ: Princeton University Press, 1992], especially 148-61.) But an important difference between the conventionalist rights defended by Gauthier and natural rights is that it is possible on the first view for some humans to lack rights even though they have not by any act forfeited them. For instance, agents who have little to offer others and in whom no one takes an interest may lack moral standing in Gauthier's theory. (Something has moral standing insofar as it is owed moral consideration - for instance, others are obligated to it.) Rights are held by virtue of conventions of various kinds, and it is possible that some agents, through no fault of their own, will fail to satisfy the conditions necessary for the attribution of moral standing. In some historical circumstances, it is possible that morals by agreement would not deem unjust a system of slavery or would not consider slavery an injustice to the slaves. See Christopher W. Morris, "Justice, Reasons, and Moral Standing," in Rational Commitment and Social justice: Essays for Gregory Kavka, ed. Jules L. Coleman and Christopher W. Morris (Cambridge: Cambridge University Press, 1998), 186-207.
39. "One part of what is politically just is natural, and the other part legal." Aristotle, Nicomachean Ethics, trans. Terence Irwin (Indianapolis, IN: Hackett Publishing, 1985), 1134b19-20.
40. Much more, of course, needs to be said about the distinction, and I am certain that many difficult questions are hidden by my quick characterizations.
41. The origin of the distinction(s) between benefit and choice accounts is H. L. A. Hart's essay, "Bentham on Legal Rights" (1973), reprinted in H. L. A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982), 162-93. My way of drawing the familiar distinction will not necessarily correspond with others.
42. The origin of the distinction(s) between benefit and choice accounts is H. L. A. Hart's essay, "Bentham on Legal Rights" (1973), reprinted in H. L. A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982), 162-93. My way of drawing the familiar distinction will not necessarily correspond with others.
43. But consider the matter broached above, the power to alienate one's right to be free and to sell oneself into slavery (for payment of debts or some other reason). Interest-protecting theorists may deny right-holders such a power. But it is not clear that choice-protecting theorists will necessarily be inclined to accord it to them; after all, once the agreement has been consummated, the voluntary slave no longer has any choices to make. But others will argue differently.
44. Nozick, Anarchy, State, and Utopia, 50.
45. I should note that some read Nozick's proviso on the appropriation of unowned resources as a basic interest-protecting right to the level of well-being one would have attained in the absence of appropriation. The interpretation of Nozick's account is more complicated than I have suggested. See Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), 236 n. 13.
46. David Schmidtz's notes have helped me express this point more clearly.
47. See Jeremy Waldron, "A Right to Do Wrong" (1981), reprinted in his Liberal Rights: Collected Papers 1981-1991 (Cambridge: Cambridge University Press, 1993), 63-87. It is a property generally of (genuine) authority that it may bind even when in error. See Raz, The Morality of Freedom, 47-48, 60-62, and 159.
48. See Jeremy Waldron, "A Right to Do Wrong" (1981), reprinted in his Liberal Rights: Collected Papers 1981-1991 (Cambridge: Cambridge University Press, 1993), 63-87. It is a property generally of (genuine) authority that it may bind even when in error. See Raz, The Morality of Freedom, 47-48, 60-62, and 159.
49. See Jeremy Waldron, "A Right to Do Wrong" (1981), reprinted in his Liberal Rights: Collected Papers 1981-1991 (Cambridge: Cambridge University Press, 1993), 63-87. It is a property generally of (genuine) authority that it may bind even when in error. See Raz, The Morality of Freedom, 47-48, 60-62, and 159.
50. See Joseph Raz, Practical Reason and Norms (1975; reprint, Princeton, NJ: Princeton University Press, 1990), 150-52, and Morris, An Essay on the Modern State, chap. 7.
51. See Joseph Raz, Practical Reason and Norms (1975; reprint, Princeton, NJ: Princeton University Press, 1990), 150-52, and Morris, An Essay on the Modern State, chap. 7.
52. A comparison of this account to that defended by David Copp will have to await another occasion. See David Copp, "The Idea of a Legitimate State," Philosophy and Public Affairs 28, no. 1 (1999): 3-45.