The APA Newsletter on Philosophy and Law, Fa/11999 and Mark C. Murphy's critique of recent efforts to decouple political authority from the duty of obedience. It is this Editor's hope that these discussions show thatwhile the "last word" has yet to be uttered-the perennial interest of the problem of political obligation has not foreclosed the possibility of incremental progress toward resolution. Notes L The relevant citations for Klosko, and other scholars discussed subsequently, are listed in the selective bibliography below. 2. Narveson contends that it is an error to interpret utilitarianism as requiring that people be made for the sake of happiness, rather than happiness for people. See, e.g., Narveson 1973. 3. Cf. Waldron, "Special Ties," 27, quoted earlier. The italicized passage is the addition I'm recommending to Waldron's original language. Partial Bibliography Fair Play and the "Acceptance" Problem George Klosko, "The Principle of Fairness and Political Obligation" Ethics 97 (1987): 353-62. George Klosko, "Presumptive Benefit, Fairness, and Political Obligation," Philosoph~ and Public Affairs 16 (1987): 241-59. George Klosko, "The Obligation to Contribute to Discretionary Public Goods," Political Studies 38 (!990): 196-214. George Klosko, The Principle of Fairness and Political Obligation (Lanham, Md.: Rowman & Littlefield, 1992). Jan Narveson, "Moral Problems of Population " The Monist 57 (1973): 62-86. Reprinted in M.' Bayles, Ethics and Population (Piscataway N.J. 1976). , , Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 197 4 ), pp. 90-9 5. John Rawls, "Legal Obligation and the Duty of Fair Play," in Sidney Hook, ed., Law and Philosophy (New York: NYU Press, 1964). John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press, 1971 ),pp. 108-14 33550. , A. John Simmons, "The Anarchist Position: A Reply to Klosko and Senor," Philosophy and Public Affairs 16 (1987): 269-79. A. John Simmons,. On the Edge of Anarchy (Princeton: Princeton University Press, 1993), pp. 257-60. A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979); pp. I 01-42. Natural Duty and the "Particularity" Objection Ronald Dworkin, Law's Empire (Cambridge, Mass: Belknap Press, 1986), p. 193; John Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press, 1971), pp. 114-17,334-37. A. John Simmons, Moral Principles and Political Obligations (~rinceton: Princeton University Press, 1979), pp. 143-56. Jeremy Waldron, "Special Ties and Natural Duties • Philosophy and Public Affairs 22 ( 1993): 3-30. ARTICLES Rawls and 11DutyBased" Accounts of Political Obligation Simon Cushing Department of Philosophy University of Michigan, Flint Since Hobbes at least, all the great political philosophers of the liberal tradition have assumed that humans are in some sense naturally politically free and equal. That being the case, how can one legitimately leave that state and acquire political obligations to institutions that assign inequalities in political authority among individuals? Two contrasting answers to this question have been offered by the most influential members of the contract tradition, John Locke (in his Second Treatise on Government) and Jean-Jacques Rousseau (see especially The Social Contract). Locke was a consent theorist claiming that "no one can be ... subject~d to the political power of another, without his own consent" (Second Treatise, §95). Rousseau's theory is what one could call a self-legislation account. Notoriously, he argues that with the social contract one remains "as free as before" by becoming part of the general will, obeying the dictates of which makes one both civilly and morally free. Neither account has many adherents today; no interpreter has managed to remove the sinister connotations from Rousseau's claim that one can legitimately be "forced to be free," while Locke's consent theory either implies that one can consent without realizing it, or that only a small minority of citizens of a society are actually obligated to its government. Can one be true to the social contract tradition and offer a plausible account of political obligation? For the answer, we must turn to the work of John Rawls, who almost single-handedly resurrected the theory of the social contract in the 20th century. 1 1. Rawls's 11Duty-Based" Account of Political Obligation It might help to contrast Rawls's theory with a crude sketch of Locke's. Locke's 67 theory includes two key claims that Rawls rejects. The first is what I call constitutive individualism: the idea that society as a rights-bearing entity is created by the intentional acts of the individuals that found it, and that failing that action, no society can be said to exist. Indeed, the social contract for Locke is (at least in part) this founding act among individuals. Against this Rawls argues that we should take societies' existence as given, a fact of life for each individual. The Rawlsian contract, famously carried out by hypothetical parties in what he calls "the original position" (OP), is instead a way to test whether or not a principle is just for the society that already exists. Second, Locke assumes that one cannot be bound to any particular society (and thereby obligated to obey its institutions above all others) without an act of consent. Rawls instead claims that we have a "natural duty" to comply with institutions that are "as just as it is reasonable to expect" (TJ, p. 115), where, as mentioned, the justice is determined by whether or not the institutions comply with principles chosen in the OP. Indeed, for Rawls, "natural duties" do not follow from a law of nature. Instead they are duties that follow from the principles chosen by *the parties in the OP. But the fact remains that every citizen is bound by them "independent of his voluntary acts." Thus one can be born politically obligated and it seems that humans are not naturally politically free in the way that Locke and Rousseau envisaged. Wouldn't it be truer to the assumptions of-the social contract tradition to make "the requirement to comply with just institutions conditional on certain voluntary acts, "2 adding some stipulation of consent to his theory? Wouldn't, in fact, the parties in the OP demand such a proviso? Rawls concedes that "offhand, a principle with this kind of condition seems more in accordance with the contract idea with its emphasis upon free consent and the protection of liberty," but claims that "in fact, nothing would be gained by this proviso" for two reasons. First, the consent requirement of Locke's theory was intended to ensure that the liberty and equality of the contractors was respected, but this end is better achieved by the principles chosen in the OP, which order the basic structure of a society into which citizens are born. Second, "basing our political ties upon a principle of obligation The APA Newsletter on Philosophy and Law, Fal/1999 would complicate the assurance problem." the duty*based account can deal with the express consent to be governed The "assurance problem" is the challenge of particularity of citizenship. by its rules, or perhaps I have maintaining stability in the face of Rawls writes that the duty of justice held office in the Institute, or temptations to freeload on the part of some requires us to support and comply with accepted . .. substantial benefits citizens and the corresponding dislike of just institutions that apply to us. This from the institution's workings. being exploited by those citizens initially stipulation seems intended to answer the (Simmons 1979, p. 150) prepared to contribute their fair share to particularity challenge. Simmons seizes on society as a cooperative enterprise. Rawls just this clause, however, as the basis of his However, the reason I am now bound to believes that a stipulation that one does not criticism that Rawls's duty account is obey the institution is that I performed assume obligations until one gives consent inadequate to ground a bond of some deliberate consensual act, and thus, would exacerbate this problem. It would citizenship. He analyzes the possible contends Simmons, the duty account still be easy to receive many of the benefits senses in which an institution could be collapses into an obligation account once of cooperation without assuming the said to "apply to" an individual, and more. Only people who have performed the burdens, and the freeloaders who realized suggests that they fall into three rough kind of deliberate consensual act necessary this would gall others sufficiently that they categories: the "weak" sense, the to obligate them to follow the rules of an too would cease to contribute. For these "territorial" sense, and the "strong" sense. institution are duty*bound to that reasons, the parties in the OP would not Of these three, Rawls appears to mean the institution above all others. Such a collapse choose to make compliance with territorial sense. is not something Rawls would welcome, institutions a voluntary matter, because to To illustrate the case of an institution because, as we saw, he believes that a do so would not increase respect for the "applying to" an individual in the stipulation of consent would complicate freedom and equality of citizens, but it territorial sense, Simmons gives an the "assurance problem," and it would also would compromise the stability of society as example of a reservation for philosophers, leave the majority of citizens not bound to a system of cooperation. where each child born is considered a obey the just institutions of their own Having rejected two key assumptions of "philosopher" unless she expressly society. Perhaps this collapse can be Locke's account, has Rawls produced a renounces this status and leaves the avoided if the phrase "apply to us" is r*;* theory of political obligation that avoids the reservation. Such philosophers are removed from Rawls's description of the criticisms usually leveled against contract automatically regarded as members of the natural duty of justice. That would mean H theories? In his well-known 1979 book,3 A. "Institute for the Advancement of that we have a duty (a) to support and _)> ' John Simmons argues that Rawls's theory is Philosophers," which campaigns actively comply with existing just institutions, and left with worse problems as a result. on behalf of the beleagl(ered philosophers, (b) to further just arrangements not yet ;s, r but demands in return that they pay their established (when to do so would not incur ,,, .. , .. 2. Simmons's Critique (fi*. . dues, and hires "hard-nosed Kantians" to for us unacceptable costs). Simmons is Simmons argues that to be an adequate enforce these demands. Simmons argues prepared to concede that we do have a .. ' ~ natural duty to do (b), 4 and even (a) to the GJ!J., that this is a clear case of an institution :j_ J,o account of political obligation a theory must (the Institute) "applying" to every person extent that we should support just meet what he calls "the particularity requirement." That is, it must explain the born on the reservation in the "territorial" institutions. But he believes his Institute special bond that a citizen feels to her sense. However, he claims, and I think he case shows that, even if the Institute is just, government over and above all others is right, that this case shows that the we are not simply for that reason bound to (however just those others might be). geographical location of my birth is not comply with it. That does not mean that Consent theories can easily do this by enough to bind me to whatever we won't comply with it, and for good stipulating, as Locke does, that one is a institutions are said to apply to reasons, but we do not have a duty to citizen of the first country to which one inhabitants of that area whether or not the comply with it simply because of its justice. gives one's consent, and that that first institutions are just: no matter that the Furthermore, of course, this "weakened" consent binds one in perpetuity (or until Institute is just, I am not "duty-bound" to duty of justice does not meet the that society collapses or expels said citizen). pay its dues merely because I was born particularity requirement, and thus "no However, while one might accept that there within its purview. "Territorial" longer looks like an appropriate tool for is a "natural duty" to support and comply application does not intuitively dealing with problems of political with just institutions, this applies to all just distinguish a just institution to which one obligation" (Simmons 1979, p. 155). institutions and does not pick out those of is not duty-bound from a just institution 3. Actual Contract? my own country as at all special. While this to which one is. The only way in which a is not a problem for a wide range of distinction like this can be made is if the Simmons finds compelling the Lockean phenomena-when I visit another country, institution applies to one strongly. The idea that there are obvious natural moral I feel a duty to obey its laws just as I would case of the Institute outlined above can be requirements (even if, unlike Locke, he my own, for example-there are many altered to reflect strong application, if in does not think that they derive from the matters (serving in the army, voting, being addition to territorial application, law of nature), 5 and it is just such a requirement that he has in mind for the tried for treason) where it is essential that I am an active participant in the (weakened) duty of justice, which would there be a special bond between myself and activities of the institution, and apply universally to all humans in all one country or set of institutions above all am a member in the full sense of societies. However, Rawls cannot allow others. The challenge then is to show how the word. I have given my such an assumption to be part of justice as 68 The APA Newsletter on Philosophy and Law, Fall 1999 fairness, because moral realism is part of a the social contract and adopts a practical reason, you might say, are actually comprehensive doctrine of the good and form of the last answer: the fair the tools with which to work the materials there are reasonable comprehensive terms of social cooperation are of the former, which are conceptions of doctrines that reject the reality of moral conceived as agreed to by those practical reasoning (PL, p. I 07). What, claims (non-cognitivism, pragmatism, e.g.), engaged in it, that is, by free then, is practical reasoning? and his political conception must and equal citizens who are born According to Rawls (who claims to accommodate both sorts of competing into the society in which they follow Kant in this), practical reasoning is doctrines. This might seem to be a further lead their lives. (PL, pp. 22-3, conscious activity by persons according to flaw with Rawls's theory-it cannot even my emphasis) the relevant principles and with the result claim a "weakened" duty of justice-but in As mentioned, Rawls rejects the of producing "constructs of reason," of fact, I would now like to suggest that the which the relevant ones for Rawls's theory fact that the duties of justice must be Constitutive Individualism of Locke and are the principles of justice. That practical derived from principles chosen in the OP Rousseau, arguing that the analogy reasoning is an activity is important: in might provide a way to meet Simmons's between society and association is affirming principles that result from one's particularity requirement in a way that misleading. However, he claims that a practical reasoning (rather than principles Lockean duties could not. society well ordered by his principles that are simply imposed on one by others), The original position, Rawls's contract "comes as close as society can to being a one is "autonomous, politically speaking" situation, is constructed such that it voluntary scheme," (PL, p. 98). Just as Rousseau argues that the restricts the possible range of choices the for it meets the principles which general will ensures self-legislation, so parties in it can make in a way that models free and equal persons would Rawls argues that the use of practical certain fairness conditions that Rawls assent to under circumstances reasoning in political constructivism claims are "reasonable and generally that are fair. In this sense its ensures this "political" autonomy. acceptable. "6 These intuitions about members are autonomous and To summarize: constructivism has the fairness are "generally acceptable," it turns the obligations they recognize following implications for political ,,. out in his later work (culminating with self-imposed. (TJ, p. 13) obligation. An organization or institution > •. 1993's Political Liberalism7), because they within a society ordered by principles of lk .. *•,, are settled convictions of the shared public As Rousseau suggested, if the legislative justice that are the result of a process of '*:~r~*;:~~~. ~ political culture of the society the basic authority of the state derives directly from construction like the choice procedure of 1\; *~ structure of which is to be ordered by the the citizens, then this could legitimize that the OP can legitimately demand r;. *<principles those in the OP are choosing. authority in the way that founding or compliance of a citizen provided that the f'l " Perhaps this fact can meet the particularity joining consent did for Locke. However, law that the institution is enforcing can be ' ~Rousseau's self-legislation account appears . ,'•; requirement. That is, one should already derived from the principles of justice by an .,., totalitarian because it assumes that there is *.;.* ' :{7 concede that the principles that result from a single common good and that dissenters application of practical reasoning, because ' ,. the parties' choice in the OP really apply that citizen can affirm the principles only to those citizens who share that public can be forced to accept this. 8 Rawls, themselves by an application of practic~l '; ... ~ "'r. however, is designing a system for a society political culture. Only those citizens can marked by a pluralism of reasonable reasoning to the conceptions of practical assuredly acknowledge the ideas of fairness reasoning (in particular, the ideas of society around which the OP is based as theirs, in comprehensive conceptions of the good, and citizen) that are part of the shared the sense of being part of their shared and his self-legislation account must be public political culture of her society. culture. adapted to acknowledge this. A second way in which Rawls's theory In a society characterized by a plurality 4. Conclusion: Does It Really might meet the particularity requirement of reasonable comprehensive doctrines, it Work? also derives from one of its most basic cannot be that the political conception conceptions, that of society as a "fair used to order the basic structure of that As we have seen, Rawls talks of the system of cooperation." With this view of society draws on an "independent moral obligations that citizens recognize being society in mind, it is natural to ask how to order" for principles, as the truth of that "self-imposed," as if each citizen her or arrive at the fair terms of cooperation. moral order will inevitably be rejected by at himself (rather than the hypothetical Rawls writes: least some of the doctrines (and it would be parties of the 0 P) actually partakes in the unreasonable to browbeat them into construction of the principles of justice. Are they, for example, laid down accepting it). Call this the Pluralism Furthermore, Samuel Freeman, a defender by God's law? ... [or] are they Challenge: to meet it, the conception must of the Rawlsian social contract, writes: recognized as required by natural be constructed in a way that all can accept. law, or by a realm of values (Indeed Rawls calls this process "Political In committing themselves to known by rational intuition? Or Constructivism.") The raw material9 for this these principles, free and equal are these terms established by an construction will be the "public and shared citizens willingly impose upon undertaking among those ideas" common to all the conceptions, themselves certain constraints persons themselves in the light of most importantly the basic ideas of society on future decision-making ... what they regard as their and person, the public role of a political This precommitment is general, reciprocal advantage? ... Justice conception of justice, and the principles of because it is made by and applies as fairness recasts the doctrine of practical reason. In fact, the principles of to everyone. 11 69 The APA Newsletter on Philosophy and Law, Fal/1999 Presumably this "commitment" must be cannot be held to agreements made by Second, it need not be amorality or a "partaking in the construction process." one's android double, that is, one has to lack of a sense of justice that provokes one However, for Rawls's theory to be plausibly have the phenomenology of choice oneself to question one's duties to one's "own" applicable to actual societies, it must be the before one can be said to have "self* country to the exclusion of duties to case that a citizen can commit to a principle imposed" obligations. 11 Earlier we saw others. It is a powerful intuition that if one merely because her practical reason, if that Rawls claims that a consent has a duty to someone geographically near applied correctly, would result in the requirement would "complicate the one it is because of her humanity13 rather principles, and in that sense she "affirms" assurance problem" because citizens could than that geographical proximity (or, a them, whether or not she realizes it. But not rely on the compliance of others if it fortiori, the sharing of a public political then the account of autonomy inherent in were the case that those others felt no culture). Thus, one might very well this affirmation account does not seem to obligation without an act of joining question specifically societal duties not out respect the sense of freedom of choice that I consent. For this reason the parties would of selfishness, but out of a suspicion about think is behind the appeal of contract theory not choose that the duties of justice the validity of societal and cultural in the first place. Contract theory was require an overt act to apply. This response demarcations. This, indeed, is a supposed to provide a conception of is weak, however. As Simmons correctly paradigmatically liberal notion: the political autonomy such that I could say that notes, there would be a similar assurance fellowship of humanity is more important my obligation to a government or problem with Rawls's duty*based account than societal boundaries. constitution was derived in some way from because citizens will not believe that Third, is it really true that every citizen my free action as an individual among others will comply simply because the can affirm the principles of justice using political equals. Autonomy requires that the relevant institutions "apply" to them. This practical reasoning? Rawls's theory is principles I affirm be the result of my is particularly so if I am right that a forbidding even to the most committed deliberative process. It is not enough simply fundamental intuition of our public student of philosophy (I have little for it to be the deliberative process that political culture is that one cannot be confidence in my own comprehension of someone exactly like me would use, in other bound to comply with particular demands his overall theory), and although it might in words, indicative of my unique experiences without an overt act. theory be possible to convey it to the and faculties, because this would allow the A different line of response that Rawls committed everyperson, I have my own deliberation of someone who knew me certainly can point to is the idea that the doubts. Everyone can vote, that much I can l ' ~ * il)credibly well to count as mine. It must be very conception of "citizen" entails each be sure of, but I am far less sure that F )> the deliberation that I actually intentionally member of society having a sense of everyone is capable of constructing undergo. justice, and thus each will find compelling principles of justice using their practical =E To illustrate, consider the following the demands of duty. He writes: reasoning, or even of comprehending the two ways of shopping for goods. In each case We must start with the process. Rawls's theory might, then, turn ' I get the goods first and am billed later. The assumption that a reasonably out to be elitist, in rather the way that l• ;c,~ ;_f first way is the standard way: I pick the just political society is possible, Plato's is in the Laws. While this might not goods out myself. In this case I have to pay and for it to be possible, human be a bad thing (it is far from clear that the bill when it comes because I have beings must have a moral everyone should vote), it belies his incurred an obligation by my free act. The nature, not of course a perfect egalitarian intent. second way is that (unbeknownst to me) my such nature, yet one that can Finally, his theory, in assuming android double, programmed with all my understand, act on, and be citizenship, rules out by fiat those people memories and feelings, who has always sufficiently moved by a born and raised within the boundaries of a chosen exactly as I would choose in similar reasonable political conception society with an identifiable shared public circumstances, picks the goods out for me. of right and justice to support a political culture who openly reject that In this latter case, it seems clear that I do not society guided by its ideals and culture, and deny that they owe anything have an obligation to pay for the goods, principles. (Introduction to to society, provided that they do not because I did not choose them. I would have paperback [ 1996] edition of PL, demand anything of it. That is, Rawls's chosen them, but I actually did not. I did not p.lxii) theory, unlike Locke's, denies the experience the phenomenology of choice: possibility of an asocial life. That kind of my awareness of making a choice. I think However, this response ignores the liberty, that was "natural" for Locke and this intuition explains the fact that Locke's followingpoints. First, that if, as Rawls Rousseau, is not even an option. While I do contention that we can tacitly consent to himself acknowledges, the public political not myself see this objection as the most laws is almost universally rejected, even if it culture "may be of two minds at a very damaging to Rawls (I find it hard to were the case that if asked we would deep level" (PL, 9), it cannot simply be sympathize with Idaho separatists), I do not expressly consent. The important difference assumed that a reasonable application of think that it can be ruled out simply by fiat, is the actual act of consent, which requires practical reason would affirm a duty* even for reasons of simplicity. the phenomenology. based/affirmation account to the I therefore conclude that, however Furthermore, Rawls claims that the exclusion of a consent account. 12 What powerful his theory of justice, Rawls's conceptions of practical reason are drawn citizens can be taken to affirm cannot thus attempt to provide a social contract theory from the settled convictions of the shared be narrowed down (and certainly not if of political obligation, even when one takes public culture of our society. Surely one of most citizens would insist on a consent into account his most recent writings, is the most settled convictions is that one proviso). fatally flawed. 70 The APA Newsletter on Philosophy and Law, Fal/1999 Notes I. See especially A Theory of Justice (Cambridge, Mass.: Belknap Press, 1971 ). (Referred to hereafter as TJ.) 2. This quote and those that follow (including discussion of the "assurance problem") are from TJ, pp. 335-6. 3. Moral Principles and Political Obligations (Princeton: Princeton University Press). 4. "I think that, as Rawls suggests, we do have a natural duty to support and assist in the formation of just institutions, at least so long as no great inconvenience to ourselves is involved" (Simmons 1979, p. 154). 5. See his defense of natural rights in his The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), pp. I 02-120. 6. Specifically, the intuitions are: "(N(o one should be advantaged or disadvantaged by natural fortune or social circumstance in the choice of principles," "it should be impossible to tailor principles to the circumstances of one's own case," and "we should insure further that particular inclinations and aspirations, and persons' conceptions of their good do not affect the principles adopted" (TJ, p. 18). 7. (New York: Columbia University Press, 1993), henceforth PL. 8. To be fair, Rousseau thought his theory applicable only in small, very homogenous societies; Corsica was the only European country he thought fit for it. 9. "(W]e must have some material, as it were, from which to begin" (PL, p. I 04 ). I 0. "Reason and Agreement in Social Contract Views," Philosophy and Public Affairs 19, no. 2 ( 1990): 144. Emphasis added. II . The clearest illustration of this that I get on a regular basis is how convincing the overwhelming majority of undergraduates find Judith Jarvis Thomson 's "Henry Fonda" case in her "A Defense of Abortion.* The example is that, if I need only the touch of Henry Fonda's cool hand on my brow to save my life, he is still not required even to cross the room to provide me with it-he is under no obligation to do so. A Kantian would no doubt say he has an imperfect duty to do so, but try telling that to most undergraduates. 12. As Rawls wryly notes, "many reasonable people seem to disagree with me" (1996, p. xlix] . 13. Or, to avoid speciesism, her possession of morally relevant characteristics, such as sentience.