Political Authority, Moral Powers and the Intrinsic Value of Obedience

Three concepts—authority, obedience and obligation—are central to understanding law and political institutions. The three are also involved in the legitimation of the state: an apology for the state has to make a normative case for the state’s authority, for its right to command obedience, and for the citizen’s obligation to obey the state’s commands. Recent discussions manifest a cumulative scepticism about the apologist’s task. Getting clear about the three concepts is, of course, an essential preliminary to any cogent normative defence of the state. The analysis here yields three conclusions: (i) the state claims to possess a moral power to subject citizens to duties of obedience, but non-consent apologies (including appeals to a principle of fair-play) can at best deliver a ‘side-effect’ power; (ii) consent theories of political authority aspire to justify one moral power by appeal to another, but they encounter familiar objections (including the objection that the state claims authority over non-consenters); and (iii) if authority is a moral power—as the state claims—its justification will have to render obedience as intrinsically valuable. Perhaps a virtue–ethical account can deliver a justification of the needed kind, but that would have to be shown elsewhere. Three concepts—authority, obedience and obligation—are central to understanding law and political institutions. The three are also involved in the legitimation of the state: an apology for the state has to make a normative case for the state’s authority, for its right to command obedience, and for the citizen’s obligation to obey the state’s commands. Recent discussions manifest a cumulative scepticism about the apologist’s task. Getting clear about the three concepts is, of course, an essential preliminary to any cogent normative defence of the state. Clarity cannot guarantee the apology’s success, but it should make it easier to understand where and how it fails, if it fails. In what follows, my analysis will lead to the following conclusions: (i) the state claims to possess a moral power to subject citizens to duties of obedience, but non-consent apologies (including appeals to * Professor of Law and Philosophy, Georgia State University. E-mail: wedmundson@gsu.edu. I thank Ken Himma, Brian Bix, Matt Kramer, Irit Samet, Jeremy Farris, Mark Murphy and Cindy Phillips. I benefitted hugely from comments by Claire Finkelstein, Matt Kramer, John Oberdiek, Stephen Perry, Sam Freeman, Leo Katz and other members of the audience at a presentation at the Institute for Law and Philosophy at the University of Pennsylvania. The Author 2010. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org a principle of fair-play) can at best deliver a ‘side-effect’ power; (ii) consent theories of political authority aspire to justify one moral power by appeal to another, but they encounter familiar objections (including the objection that the state claims authority over non-consenters); and (iii) if authority is a moral power—as the state at least implicitly claims—its justification will have to portray obedience as intrinsically valuable. (Perhaps, a virtue–ethical account can deliver a justification of the needed kind, but that would have to be shown elsewhere.) 1. Political Authority as Moral Power Political authority consists in the state’s (purported) moral power to place us under obligations to obey its commands, particularly its laws. As Stephen Perry has pointed out, the ancient controversy about a duty to obey the law is really about the state’s moral power to create duties, and the citizen’s coordinate liability to be subjected to such duties; and, as David Estlund has pointed out, such a power is not to be confused with the power that each of us has to do things that happen to impose duties upon others (as, for example, when by stepping in front of your car I make it the case that you have a duty to stop). Estlund coined the term ‘side-effect power’ to mark the category of actions that have moral effects but which are not, properly speaking, exercises of a moral power. Getting clear about the distinction is an essential preliminary to any investigation of the nature of political authority. In the next sections, I will try to accomplish two things: first, I will sharpen the distinction between moral powers and (mere) side-effect powers. Part of this task is to make it plausible that there is indeed such a distinction to be observed. Second, I will argue that what underlies and explains the distinction between the two types of power is a distinction between two types of reason for action, which I will call intrinsic and non-intrinsic. Part of this task is to deflect objections to the very idea of an intrinsic reason, and its companion notion of intrinsic value, by offloading some of the excess metaphysical baggage that these ideas might seem to carry. 1 S Perry, ‘Law and Obligation’ (2005) 50 Am J Jurisp 263–95, 273: ‘It seems to me to be a mistake to characterize [the subject’s] overall normative relationship to the government by reference to a general obligation of any kind. The most appropriate description of this relationship is, rather, that they are under a general liability to have their normative status affected by the government’. The Hohfeldian correlative of this general liability is a general power to affect the citizen’s normative situation. As Joseph Raz puts it: ‘A person has authority to the extent that he has power to affect norms’. J Raz, ’Voluntary Obligations and Normative Powers’ (1972) reprinted in SL and BL Paulson, Normativity and Norms: Critical Perspectives on Kelsenisan Themes (Clarendon Press, Oxford 2007) 451–70, 467. 2 DM Estlund, Democratic Authority: A Philosophical Framework (Princeton UP, Princeton 2008). 180 Oxford Journal of Legal Studies VOL. 30