Natural law, consent, and political obligation

Social Philosophy and Policy

Volumn 18, Issue 1, 2001, Pages 70-92

  Murphy, Mark C ^a  

^a GEORGETOWN UNIVERSITY   (United States)

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EID: 8344227766     PISSN: 02650525     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0265052501181033     Document Type: Article

References (32)

1. See my "Consent, Custom, and the Common Good in Aquinas's Theory of Political Authority," Review of Politics 59, no. 2 (Spring 1997): 323-50.
2. See my "Was Hobbes a Legal Positivist?" Ethics 105, no. 4 (July 1995): 846-73, for a discussion of Hobbes's natural law view.
3. For relevant Thomistic texts, see Thomas Aquinas, Summa Theologiae, trans. Fathers of the English Dominican Province (New York: Benziger Bros., 1947), I-II, q. 19, a. 10; II-II, q. 26, a. 3; II-II, q. 26, a. 4, ad 3; II-II, q. 31, a. 3, ad 2; II-II, q. 47, a. 10. For Simon's view, see Yves R. Simon, A General Theory of Authority (Notre Dame, IN: University of Notre Dame Press, 1980), 23-79.
4. For relevant Thomistic texts, see Thomas Aquinas, Summa Theologiae, trans. Fathers of the English Dominican Province (New York: Benziger Bros., 1947), I-II, q. 19, a. 10; II-II, q. 26, a. 3; II-II, q. 26, a. 4, ad 3; II-II, q. 31, a. 3, ad 2; II-II, q. 47, a. 10. For Simon's view, see Yves R. Simon, A General Theory of Authority (Notre Dame, IN: University of Notre Dame Press, 1980), 23-79.
5. See John Finnis, "Public Good: The Specifically Political Common Good in Aquinas," in Robert George, ed., Natural Law and Moral Inquiry: Ethics, Metaphysics, and Politics in the Work of Germain Grisez (Washington, DC: Georgetown University Press, 1998), 174-209.
6. See my "Natural Law, the Common Good, and the Political Order," forthcoming.
7. See Leslie Green, The Authority of the State (New York: Oxford University Press, 1988), 227-28; and A. John Simmons, Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979), 30-35.
8. See Leslie Green, The Authority of the State (New York: Oxford University Press, 1988), 227-28; and A. John Simmons, Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press, 1979), 30-35.
9. There may be good reasons for the law to fail to require something that duty requires toward the promotion of the common good. For example, some particular law of this sort may be burdensome, unjust to enforce, etc. On this point, see, for example, Aquinas, Summa Theologiae, I-II, q. 96, a. 2.
10. See Simmons, Moral Principles, 47-49; and M. B. E. Smith, "Is There a Prima Facie Obligation to Obey the Law?" Yale Law Journal 82, no. 5 (April 1973): 964-65.
11. See Simmons, Moral Principles, 47-49; and M. B. E. Smith, "Is There a Prima Facie Obligation to Obey the Law?" Yale Law Journal 82, no. 5 (April 1973): 964-65.
12. I discuss this point in my "Surrender of Judgment and the Consent Theory of Political Authority," Law and Philosophy 16, no. 2 (March 1997): 134; and in my "Moral Legitimacy and Political Obligation," APA Newsletter on Law and Philosophy 99, no. 1 (Fall 1999): 77-80.
13. I discuss this point in my "Surrender of Judgment and the Consent Theory of Political Authority," Law and Philosophy 16, no. 2 (March 1997): 134; and in my "Moral Legitimacy and Political Obligation," APA Newsletter on Law and Philosophy 99, no. 1 (Fall 1999): 77-80.
14. My discussion of specification of moral principles is inspired by and draws from the work of my colleague Henry Richardson. See his "Specifying Norms as a Way to Resolve Concrete Ethical Problems," Philosophy and Public Affairs 19, no. 4 (Fall 1990): 279-310. One difference in our discussions is that Richardson focuses on the need for specification as arising from conflict between moral principles, while I focus on the need for specification as arising from the initial vagueness of a moral principle. In recent work, Richardson distinguishes between specifying moral norms and sharpening them: one carrying out the former process assumes that the extension of a particular norm is determinate, and then proceeds to qualify it; one carrying out the latter assumes that the extension of a particular norm is indeterminate, and then proceeds to make it more determinate. See Henry Richardson, "Specifying, Balancing, and Interpreting Bioethical Principles," Journal of Medicine and Philosophy 25, no. 3 (June 2000): 288-91.
15. My discussion of specification of moral principles is inspired by and draws from the work of my colleague Henry Richardson. See his "Specifying Norms as a Way to Resolve Concrete Ethical Problems," Philosophy and Public Affairs 19, no. 4 (Fall 1990): 279-310. One difference in our discussions is that Richardson focuses on the need for specification as arising from conflict between moral principles, while I focus on the need for specification as arising from the initial vagueness of a moral principle. In recent work, Richardson distinguishes between specifying moral norms and sharpening them: one carrying out the former process assumes that the extension of a particular norm is determinate, and then proceeds to qualify it; one carrying out the latter assumes that the extension of a particular norm is indeterminate, and then proceeds to make it more determinate. See Henry Richardson, "Specifying, Balancing, and Interpreting Bioethical Principles," Journal of Medicine and Philosophy 25, no. 3 (June 2000): 288-91.
16. See Green, The Authority of the State, 36-59.
17. See Joseph Raz, "The Obligation to Obey: Revision and Tradition," Notre Dame Journal of Law, Ethics, and Public Policy 1, no. 1 (1984): 142.
18. So Aquinas, in distinguishing (a) civil laws that are derived from the natural law simply by way of logical deduction from the natural law and the given features of a situation (derivation by deduction), and (b) those that are derived from it by a free decision (derivation by determination), says that the former get their force from the natural law, while the force of the latter comes from the civil law alone. Aquinas, Summa Theologiae, I-II, q. 95, a. 2.
19. John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980), 231-32.
20. David Lewis, Convention: A Philosophical Study (Cambridge, MA: Harvard University Press, 1969), 24, 14.
21. Ibid., 35.
22. John Finnis, "The Authority of Law in the Predicament of Contemporary Social Theory," Notre Dame Journal of Law, Ethics, and Public Policy 1, no. 1 (1984): 120.
23. Raz, "The Obligation to Obey," 150.
24. Finnis, "The Authority of Law," 136.
25. I thus reach the same conclusion about Finnis's version of the natural law account of political obligation that I reached concerning Jeremy Waldron's 'natural duty of justice' account. Waldron argues that we are all bound to promote justice, and that justice cannot be secured unless institutions function to ensure that the principles of justice are satisfied. Since those institutions will not function well unless those to whom those institutions apply accept the supervision of those institutions, those to whom such institutions apply are bound to comply with them. See Jeremy Waldron, "Special Ties and Natural Duties," Philosophy and Public Affairs 22, no. 1 (Winter 1993): 3-30. In response, I argued, a bit too tentatively, that it is unclear whether Waldron's premises implied that justice demands that we adhere to the law, or that justice demands that we make the law authoritative over us. See my "Acceptance of Authority and the Requirement to Comply with Just Institutions: A Comment on Waldron," Philosophy and Public Affairs 23, no. 3 (Summer 1994): 271-77. I now think that it shows at most the latter, just as Finnis's view shows at most that the common good demands that we make the law authoritative over us.
26. I thus reach the same conclusion about Finnis's version of the natural law account of political obligation that I reached concerning Jeremy Waldron's 'natural duty of justice' account. Waldron argues that we are all bound to promote justice, and that justice cannot be secured unless institutions function to ensure that the principles of justice are satisfied. Since those institutions will not function well unless those to whom those institutions apply accept the supervision of those institutions, those to whom such institutions apply are bound to comply with them. See Jeremy Waldron, "Special Ties and Natural Duties," Philosophy and Public Affairs 22, no. 1 (Winter 1993): 3-30. In response, I argued, a bit too tentatively, that it is unclear whether Waldron's premises implied that justice demands that we adhere to the law, or that justice demands that we make the law authoritative over us. See my "Acceptance of Authority and the Requirement to Comply with Just Institutions: A Comment on Waldron," Philosophy and Public Affairs 23, no. 3 (Summer 1994): 271-77. I now think that it shows at most the latter, just as Finnis's view shows at most that the common good demands that we make the law authoritative over us.
27. This discussion is meant to supercede my account in "Surrender of Judgment" of the requirement to act on one's specifications of moral principles. I am dissatisfied with the account presented in that paper for two reasons. First, I think that the argument for the principle is a bit ad hoc, taking for itself a premise it probably is not entitled to take. Second, I think that at most the argument would establish a requirement like the 'requirement' to keep one's resolutions, and so would not explain at all why failing to act on one's specification of a moral principle would count as a violation of that principle.
28. Green, The Authority of the State, 225, 228-29; and Leslie Green, "Who Believes in Political Obligation?" in John T. Sanders and Jan Narveson, eds., For and Against the State (Lanham, MD: Rowman and Littlefield, 1996), 8.
29. Green, The Authority of the State, 225, 228-29; and Leslie Green, "Who Believes in Political Obligation?" in John T. Sanders and Jan Narveson, eds., For and Against the State (Lanham, MD: Rowman and Littlefield, 1996), 8.
30. Mark Hall has told me, though, that there is some statistical evidence that a very large percentage of U.S. citizens has at one point or another taken an oath to obey the law. When we put together naturalized citizens, members of the military, public officials, voters in states where something like a loyalty oath is part of one's voter's registration form, and so on, it may appear that many more folks than we might have originally supposed have performed acts of consent to be governed. Of course, we would still need to examine more closely the content and context of these oaths. But Hall's conjecture is, I think, a nice counterweight to the views of those who hold that express consent is obviously not to be had.
31. See Tom R. Tyler, Why People Obey the Law (New Haven, CT: Yale University Press, 1990).
32. For a general discussion of philosophical anarchism, see A. John Simmons, "Philosophical Anarchism," in Sanders and Narveson, eds., For and Against the State, 19-40. Included in the class of philosophical anarchists are Simmons, Raz, Green, and Smith.