When Justice Can’t Be Done: The Obligation to Govern and Rights in the State of Terror

Abstract

This article explores a view nearly absent from modern political theory, that there is a duty to create and secure government which imposes on some a duty to govern. This duty is grounded in philosophers as disparate as Aquinas, Locke, Hobbes and Finnis. To fail one’s duty to govern, especially over the range of goods that can only be secured by government, is to have committed a wrong against another. If there is an obligation to govern that is rooted in the common good, then one might believe there is an obligation to maintain a government which pursues the common good. After disentangling the duty to govern from political duties which are much better explored, I focus on the more subtle question of how political legitimacy and the obligation to obey the law may clash with a duty to govern. Again, it is surprising that this claim can be located in scholars as disparate as Kant, Hobbes and Finnis. Yet in each example these thinkers give us, we are troubled by the tension between the duty to maintain a government and its conceptual fellow travelers, legitimate government and the obligation to obey. Nor is this question one restricted to abstract political philosophy. Particularly troubling are scenarios in which a threat to governance might lead to a reasonable belief that the government must maintain itself by taking actions which appear illegitimate. A scenario where a government must racially profile or violate civil liberties to guard against threats to the ability to govern brings the problem to life. Difficult moments of American history – the interment of the Japanese during World War II, racial profiling after September 11th and the use of torture by the United States government were surely mistakes. But they make live the perceived and potential clash between a duty to maintain a government, legitimate government and our duty to obey the law.