Membership, Fair Play, and Political Obligation

Transcription

1 POLITICAL STUDIES: 2000 VOL 48, Membership, Fair Play, and Political Obligation Richard Dagger Arizona State University In recent years a number of theorists have maintained that the obligation to obey the law is best conceived and justified as an associational obligation. Not consent or utility or fair play but membership is the source of political obligation. These theorists are wrong, I argue, but they are wrong in interesting and illuminating ways. For an examination of the advantages and disadvantages of the membership account of political obligation underscores the merits of a rival account of obligation grounded in the principle of fair play. If the problem of political obligation is not the central problem of political philosophy, it is certainly one of the most venerable. Over the centuries political philosophers and controversialists have proposed a variety of grounds for this obligation, with divine command, consent, utility, fair play, and gratitude perhaps the most prominent of them. Yet none of these has commanded widespread and lasting assent. In the last decade or so, however, a new contender has emerged. According to the proponents of this view, political obligation is an associational obligation grounded in membership. If we are members of a group, the argument goes, then we are under an obligation, other things being equal, to comply with the norms governing the group. Nor does this obligation follow from our consenting to become members, for the obligation holds even in the case of groups or associations, such as families and polities, that people typically do not consent to join. Voluntary or not, membership entails obligation. Anyone who acknowledges that he or she is a member of a particular polity must therefore also acknowledge that he or she has a general obligation to obey its laws. 1 This new attempt to ground political obligation has already met with serious and, to my mind, effective criticism. 2 But that is not to say that it is unworthy of further attention. On the contrary, a grasp of the strengths and weaknesses of this theory should lead to a deeper appreciation of the merits of one of its rivals: that which grounds the obligation to obey the law in considerations of fair play. The Argument from Membership Behind the recent attempts to base a general obligation to obey the law on obligations of membership are two other recent developments in political philosophy. One is the emergence of philosophical anarchism ; the other, the resurgence of communitarianism. According to Robert Paul Wolff, A. John Simmons, and other self-proclaimed philosophical anarchists, there is no general obligation to obey the law, not even Political Studies Association, Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA

2 POLITICAL OBLIGATION 105 for the citizens of the most just or democratic polity. 3 In the stronger form Wolff advocates, philosophical anarchism holds that in principle there can be no political obligation, for such an obligation would violate our fundamental moral responsibility as persons to decide for ourselves, autonomously, what we should and should not do. In the weaker form Simmons favours, the argument is simply that all the attempts to find a satisfactory ground for a general political obligation whether in consent, gratitude, fair play, utility, or in the conceptual claim that being part of a political society simply means to be under an obligation to obey its laws have failed. In view of these failures, Simmons says, we must conclude that there is no general political obligation, even though some individuals may incur an obligation to obey the law by expressly consenting to do so. In either form, philosophical anarchism poses an obvious challenge to those who believe that citizens have a political obligation to their country, at least when the country is reasonably or minimally just. The attempt to ground political obligation in obligations of membership is one response to this challenge. Less directly, perhaps, the appeal to membership also seems to be a response to the resurgence of communitarianism in the last two decades. On the communitarian view, individuals are deeply dependent upon the communities of which they are part dependent even for their identities, which are at least partly constituted by those communities. For the communitarian, political obligation is something that goes without saying ; that, at any rate, seems to explain why communitarians seldom talk about it. 4 The belief that belonging or membership is something to be prized as a matter of fundamental value, however, has been taken seriously by those who do have something to say about the way in which individuals and communities are connected through an obligation to obey the law. This connection, according to their argument, is one that derives not from the voluntary acts of individuals but from the nature of membership in a body politic itself. Although this argument takes different forms, the key idea, with one exception, is that political obligation is a form of nonvoluntary obligation on a par with familial obligations. The exception occurs in Margaret Gilbert s Group membership and political obligation. There Gilbert sets out the following analytical membershipargument : social groups are plural subjects; plural subjects are constituted by joint commitments which immediately generate obligations. 5 Those who think of themselves as members of a group, that is, compose a plural subject. Because plural subjects are constituted by joint commitments, Gilbert claims to have given a sort of actual contract theory of (a certain type of) political obligation. 6 As the phrase a sort of indicates, however, her idea of a commitment is rather loose. As she says elsewhere, One can enter a joint commitment with a minimum of voluntariness. All that is necessary is that one indicate one s preparedness to be jointly committed in the relevant way. 7 In the case of political obligation, commitment is mainly a matter of common knowledge and the perception of belonging: The widespread observed use of such phrases as our government and our country, alongside any relevant behaviour, would itself appear to provide a basis for common knowledge in a population that a substantial portion of its members have openly expressed their willingness jointly to commit in a relevant way. 8 If our actions suggest that we think of ourselves as members of a body politic, then we must have a political obligation to it.

3 106 RICHARD DAGGER Despite her claim to have given a sort of actual contract theory, then, Gilbert s account of political obligation seems to rely more on the idea of membership than on individual commitments. Certainly it shares two important features with the accounts of those who regard political membership as a nonvoluntary if not involuntary source of obligation. One is the idea that the connection between membership and obligation is immediate or analytical. The other is the belief that membership is largely a matter of perception of identification with, or sense of belonging to, a group of some sort. 9 For the other writers who appeal to membership, though, there is simply no point in trying to show that a polity is the product of voluntary agreement or joint commitments. It is better, as they see it, to think of the political community as an association like the family, which generates obligations even among those who have not chosen to be a part of it. Such associations, in Ronald Dworkin s phrase, are pregnant of obligation : [T]he best defense of political legitimacy the right of a political community to treat its members as having obligations in virtue of collective community decisions is to be found not in the hard terrain of contracts or duties of justice or obligations of fair play that might hold among strangers, where philosophers have hoped to find it, but in the more fertile ground of fraternity, community, and their attendant obligations. Political association, like family and friendship and other forms of association more local and intimate, is in itself pregnant of obligation. 10 The same line of reasoning, with an explicit analogy between family and polity, is at the heart of John Horton s account of political obligation: My claim is that a polity is, like the family, a relationship into which we are mostly born; and that the obligations which are constitutive of the relationship do not stand in need of moral justification in terms of a set of basic moral principles or some comprehensive moral theory. Furthermore, both the family and the political community figure prominently in our sense of who we are; our self-identity and our understanding of our place in the world. 11 As members of families and political communities, on this view, we are subject to what Michael Hardimon calls noncontractual role obligations that is, obligations that simply flow from roles into which we are born. 12 This account of political obligation has at least three attractive features. The first is the refusal of these writers to treat voluntary and involuntary as two parts of a dichotomy. Hardimon puts this point especially well. If we hold that only voluntary actions can place us under obligations the volunteer principle, in his terms then the claim that we have noncontractual role obligations sounds threatening. It may sound even more threatening, he observes, if we look closely at a basic source of [the volunteer principle s] appeal: our horror at the thought of being impressed like the seamen of old into social roles and burdened with their attendant obligations against our will. But it is a mistake to think that there is no middle ground between volunteering and being impressed. We must recognize, Hardimon states, that the metaphor of impressment is particularly ill-suited to the roles associated with the noncontractual role obligations we are inclined to take seriously. It would simply be wrong to say that we are impressed into the roles of sons or daughters, wrong to say that we are impressed into the roles of brothers and sisters, and wrong to say that we are impressed into the role of citizen. We do not, it is true, choose these roles, but we are not impressed into them either. They are roles into which we are born. 13

4 POLITICAL OBLIGATION 107 Adolescents may find this point hard to accept when they protest that they did not choose to be born into their families; but one sign of maturity is their recognition that they were not exactly impressed, either. A second attraction of the membership account of political obligation is that it squares with a common intuition. A great many people apparently do think of themselves as members of political communities who have an obligation to obey their polities laws. If a theory s ability to support widespread intuitions counts in its favour, then the argument from membership surely has the advantage on philosophical anarchism. 14 This intuition, furthermore, points to a third attractive feature of the membership account. The intuition that one has an obligation to obey the laws of one s polity apparently grows out of the sense of identity that members of a polity commonly share. According to Horton, This sense of identity and the corresponding responsibility is part of what it means to be a member of a polity and to recognize one s political obligations. 15 So it should not be surprising, as he goes on to remark, that some institutional obligations, through their deep-rooted connections with our sense of who we are and our place in the world, have a particularly fundamental role in our moral being. That these kinds of institutional involvement generate moral obligations, and that these obligations rather than standing in need of justification may themselves be justificatory, is only to be expected. 16 In all of these respects the argument from membership is quite appealing, at least to those who have some sympathy for communitarian complaints about atomistic individualism and unencumbered selves. 17 But that is not to say that it provides a satisfactory account of political obligation. The argument from membership is also beset with problems, three of which are particularly important here. Problem One: the Polity as Family The first problem has to do with the analogy between the polity and the family or, in Dworkin s broader terms, between political community, on the one hand, and familial and fraternal associations, on the other. For this analogy to have force, families must indeed generate obligations of membership that flow, as Hardimon says, from roles into which we are born. Perhaps in most families these obligations do follow in this fashion, but it is easy to find troublesome cases. If John s parents abandoned him shortly after his birth and never gave any evidence of caring whether he lived or died, does he ever have an associative obligation to them? If he has an obligation instead to the people who adopted and cared for him, does this obligation flow from a role into which he was born? For present purposes, however, I shall set troublesome cases aside and grant that families generate nonvoluntary obligations for their members. The next question is then whether the analogy between family and polity is sound. Here the obvious objection is that the members of the modern polity lack the close and intimate relationships with each other that family members typically share. 18 As nation states grow larger and less national in character, the spirit of fraternity dwindles as people tend to look less familiar to their fellow citizens. The proponents of the membership theory could respond, of course, that obligations of membership obtain

5 108 RICHARD DAGGER in some polities those that more closely resemble families and not in others. But such a response would be tantamount to admitting that the theory lacks relevance in precisely the kinds of polities where questions of political obligation are most likely to arise. If we agree that polities are sufficiently similar to families for the analogy to hold, however, we must then ask whether the analogy proves too much. That is, does accounting for political obligations in this way require us to model the polity after the family in other respects? If it does, the door is open, as Horton admits, to a thorough-going form of paternalism that might have appealed to Filmer but is likely to attract few advocates today. 19 The membership theorist must then find some way to show that the analogy between family and polity holds with regard to political obligation but not to paternalism. This must be done, moreover, without reducing the analogy to a single point of resemblance the point that both generate nonvoluntary obligations for that will amount to a thinly disguised assertion that membership in a polity grounds an obligation to it. There are serious difficulties, then, that confront those who share Dworkin s belief that political association, like family and friendship is in itself pregnant of obligation. These difficulties may not prove that the family-polity analogy is misconceived or that political obligations cannot be understood in terms of this analogy, but they surely indicate that it is far from a sturdy foundation for an account of the obligation to obey the law. Problem Two: Identity and Obligation The second problem with the membership account relates to the sense of identity or connection so important to its argument. This sense is important because it leads people to regard themselves as belonging, as being members of a group, and in this way it fosters their sense of obligation. The problem arises, however, when the argument slides from the sense of obligation to the obligation itself. Someone may have a sense of obligation, even a powerful sense of obligation, without truly being under the obligation in question. In Dickens s Martin Chuzzlewit, for example, Seth Pecksniff s assistant, Tom Pinch, feels an overwhelming obligation to Pecksniff, when all along Pecksniff is shamelessly exploiting Tom s innocent good nature. Conversely, someone may be subject to an obligation that he or she has no sense of at all. A man who fathers a child without knowing it has an obligation to the child and its mother, ceteris paribus, even though he has absolutely no sense of this obligation. From either direction, the difference between the sense of obligation and the obligation itself undercuts the argument from membership. The fact that people feel themselves to be under an obligation to their polity does not mean that they are under such an obligation, nor does the fact that they feel no such obligation mean that they are not. The advocates of the membership theory may reply that this criticism does not give the sense of identity its due. To identify with someone or something is not merely to submit passively to a feeling or set of feelings; it is to undertake an active role as an identifier. That, at least, seems to be the burden of Yael Tamir s account of associative obligations. As she sees it, formal membership in a group cannot

6 POLITICAL OBLIGATION 109 ground an associative obligation to the group unless one identifies oneself as a member of it: If someone acquires, by birth, citizenship in a state he despises, his formal membership cannot serve as grounds for generating obligations to that state. Associative obligations must therefore be based on some sense of belonging, on an active and conscious discovery of one s position, and on an affirmation of this position. One may have associative membership in a particular social group by birth rather than through voluntary choice, but unless one identifies with this membership, it cannot generate obligations. 20 The true essence of associative obligations is that they are not grounded on consent, reciprocity, or gratitude, but rather on a feeling of belonging or connectedness. 21 Tamir s conception of identification or connectedness does capture something of value, but that something bears on loyalty or patriotism or, again, the sense of obligation rather than obligation itself. As a response to the complaint that the sense of identity cannot ground or generate an obligation, it simply fails to meet the objection. Tom Pinch undoubtedly identifies himself, in Tamir s active sense, as an associate of Seth Pecksniff; he is grateful to Pecksniff for allowing him to be an associate, and he believes that he has an obligation to Pecksniff doubly rooted in gratitude and association. To Dickens s reader, however, it is clear that Pinch has misunderstood his situation and has no obligation of any sort to continue to serve as Pecksniff s associate cum lackey. As long as people can misidentify in this way, neither the sense of identity nor the activity of identifying can be sufficient to ground an obligation. Setting misperceptions of this sort aside, Tamir s emphasis on active identity is still not enough to rescue the membership argument from the objection that it mistakes the sense of obligation for obligation itself. It simply does not follow that someone who (correctly) identifies himself or herself as a member of a group thereby acquires or assumes an obligation to the other members of the group. Among the groups with which I identify, for instance, is the Janeites, devoted readers of Jane Austen s novels. I feel a kinship with my fellow Janeites; I have rubbed elbows with some of them at the Austen house in Chawton; I identify with them. But I do not see how this identification imposes an obligation, associational or otherwise, upon me. Perhaps Tamir could respond that I have not truly identified with the Janeites unless I take membership to entail a responsibility to proselytize on behalf of Janeism. That is, the Janeites devotion to Austen s works must bind them in a common endeavour to bring others to an appreciation of the virtues, literary and moral, of her writings. To fail to do my part in this endeavour is to open myself to the censure of the other participants, who may rightly charge that I have failed to meet my obligations as a Janeite. The problem with this response is that it builds the conclusion into the definition of the key terms. Identifying with or being a member of a group simply means, according to the response, to have an obligation to the other members of the group; a group or an association simply is a common endeavour in which the members have an obligation to do their parts. These definitions tell us something that is undoubtedly true of some groups, but certainly not of all the groups with which one may identify as the example of the Janeites should make clear. Indeed, whatever persuasive power Tamir s argument has rests on her implicit

7 110 RICHARD DAGGER appeal to the way in which many groups or associations bring people together in a shared or common endeavour. That is an important point, to which I shall return. But it is not a response to the objection that the sense of identity or even the activity of identifying with a group is enough to ground an obligation to it. Problem Three: Group Character and Obligation Finally, there is the problem of what may be called group character. Tracing political obligation to obligations of membership, especially of membership in nonvoluntary or noncontractual associations, presents this problem because membership is not confined to groups or associations that are decent, fair, or morally praiseworthy. Philanthropic groups have members, but so does the Mafia. All families have members, but some families are so abusive or dysfunctional that some of their members presumably have no obligation to abide by family rules. The same is certainly true of political societies. If the character of a polity is such that some or even many of its members are routinely exploited and oppressed, it is difficult to see how they are under an obligation to obey its laws. The advocates of the membership argument are aware of this problem, and they attempt in various ways to deal with it. One way is to define membership or association, or both, so as to make it impossible for a person to have obligations of membership within an evil or abusive association. Another is to distinguish between bare and true communities, as Dworkin does when he states that not every group established by social practice counts as associative: a bare community must meet the four conditions of a true community before the responsibilities it declares become genuine. 22 Yet another way to try to handle the problem is to acknowledge that one may indeed be a member of an association that is unjust or immoral, either inherently or contingently, but to insist that obligations to comply with the injustice or immorality are not real obligations. Of course, Hardimon says, we are assuming that role obligations deriving from unjust institutions are void ab initio. 23 If these manoeuvres succeed in solving or escaping the problem of groups of bad character, they do so by moving beyond the straightforward appeal to associative obligations. In Hardimon s case, nonvoluntary roles place us under obligations, but only so long as the association in which we play these roles are just. In Dworkin s case, membership in a group counts as associative only when the group is a true community in which members must suppose that the group s practices show not only concern but an equal concern for all members. 24 In both cases, membership is not in itself sufficient to ground or generate an obligation. Something extra must be added an appeal to justice or to the nature of a true community to supply what a straightforward appeal to membership lacks. If these attempts to escape the problem of group character will not avail, neither will Tamir s different response to the problem. Contrary to the other advocates of the membership theory, Tamir holds that associative obligations are independent of the normative nature of the association. There is no reason to assume, as Dworkin does, that only membership in morally worthy associations can generate associative obligations. For example, members of the Mafia are bound by associative obligations to their fellow members, meaning that they have an obligation to attend to each other s needs, to support the families of

8 POLITICAL OBLIGATION 111 those killed in action, and the like. These obligations are not ultimate, and there are obviously sound moral reasons that could override them, but we cannot rule out their very existence. 25 This is in two ways a helpful response to the problem. First, Tamir recognizes that obligations sometimes come into conflict with one another, and when they do we have to find some way to decide which of the two (or more) obligations is overriding. Second, and more important here, Tamir also recognizes that the attempt to confine associative obligations to true or moral associations undercuts the argument from membership. As she puts it, If only morally valuable communities could generate associative obligations, the latter would become a meaningless concept. Our obligation to sustain just associations is not contingent on our membership in them but rather on the justice of the association s actions. Conversely, our obligation to help fellow members derives from a shared sense of membership rather than from the specific nature of their actions. Hence had we been born in a community of villains we might, nevertheless, be bound by associative obligations, although the latter could be overridden by moral obligations. 26 If membership truly is a ground of obligation, then membership must count in itself; the morality or justice of the association in question cannot do all the work. On that point Tamir is surely correct. But that does not establish that membership truly is a ground of obligation. The mafiosi and villains in her examples may have obligations to the other members of their associations, but it is not at all clear that those obligations are grounded in membership. In the case of the Mafia, the oaths and rituals that characterize popular accounts of Mafia practices suggest that express consent is a condition of membership. If the mafiosi do indeed have an obligation to attend to each other s needs, to protect each other, to support the families of those killed in action, and the like, it is apparently because they have agreed to do so. As for those who are born into Tamir s community of villains, their putative obligation to help and support their fellow villains seems to rest on gratitude for the protection and nurture they received while growing up, not on their membership as such in the community. The case of the person who is born into a community of villains is also instructive in another way. That is, we may grant that such a person has an obligation to help and support his or her fellow villains without granting that he or she has an obligation to follow the rules of villainy. Formal or informal, every association has some rules or norms that its members are expected to follow. In the case of a community of villains, one such norm might be to rob and murder outsiders whenever possible. Would someone born and raised in this community have an obligation even an obligation that may be overridden to follow this norm? Such a person might well believe that he or she has such an obligation, the power of socialization being what it is. But it does not follow that he or she really does have an obligation to rob and murder. One can discharge an obligation to help and support others without endorsing or joining in all of their activities. In the case in question, one could even argue that the best way to help and support other members of the community of villains is to try to persuade them, in the fashion of an Old Testament prophet, to change their villainous ways. So we may have an obligation to the other members of our communities without having a general obligation to obey the rules, norms, or laws of those communities. Whether we are talking about a community of villains or a nation state, obligations

9 112 RICHARD DAGGER of membership do not extend to political obligation as it is ordinarily understood that is, a general obligation to obey the laws of one s polity. There is no such obligation when the polity in question is sufficiently unjust. Such an obligation does obtain when the polity is reasonably just, but membership or association cannot ground the obligation. Tamir s attempt to grasp the nettle and admit that membership by itself cannot distinguish moral from immoral associations is thus no more successful in overcoming the third problem facing the membership theory than the efforts of Dworkin, Horton, and Hardimon. 27 Despite its attractions and the obvious ingenuity of its supporters, the argument from membership collapses under the weight of the three problems I have noted. It is simply not robust enough to account for a general obligation to obey the laws. Something extra must always be added. Once we see this, we can also see that it is the something extra, and not the mere idea of membership, that accounts for the attractions of the membership theory. For a theory of political obligation that supplies that something extra, we must look to the principle of fair play. Fair Play and Political Obligation My purpose in this section is not to present a full-scale defence of fair play as the grounding principle for political obligation. Such defences are available elsewhere, as are serious criticisms of the fair play account of the obligation to obey the law. 28 Here I shall confine myself to a sketch of the principle that should suffice to show how it enjoys the advantages of the argument from membership without suffering from that argument s defects. According to the principle of fair play, everyone who participates in a just, mutually beneficial cooperative practice has an obligation to bear a fair share of its burdens. This obligation is owed to the others who cooperate in the enterprise, for cooperation is what makes it possible for any individual to enjoy the benefits of the practice. Anyone who acts as a free rider is acting wrongly, then, even if his or her shirking does not directly threaten the existence of the endeavour. Those who participate in the practice thus have rights against as well as obligations to one another: a right to require others to bear their share of the burdens and an obligation to bear one s share in turn. The principle of fair play applies to a political society only if that society can reasonably be regarded as a cooperative enterprise. If it can, the members of the polity have an obligation of fair play to do their part in maintaining the enterprise. Because the rule of law is necessary to the maintenance of such a polity and perhaps even constitutive of it the principal form of cooperation is abiding by the law. That is not to say that fair play rules out the possibility of overriding considerations that warrant civil disobedience. But in the absence of such circumstances, the members of the polity qua cooperative practice must honour their obligation to one another to obey the laws. As this sketch indicates, the principle of fair play shares the virtues of the argument from membership. It resists the dichotomy of voluntary/involuntary, for one, by allowing for people to acquire obligations through nonvoluntary that is, unreflective or habitual participation in cooperative ventures. Someone may grow up

10 POLITICAL OBLIGATION 113 within a cooperative practice and acquire an obligation to its other members without ever consciously consenting to be part of the practice. Like the argument from membership, the fair play account also has the virtue of taking membership seriously. Membership by itself is not enough, as I have argued, but the fair play theory does entail that members of any association that can reasonably be regarded as a cooperative practice will indeed have an obligation to obey its rules. To those who reflect upon the value of their cooperation, finally, fair play offers a way to nourish the sense of identity that fosters the sense of obligation. Identifying myself as a member of a mutually beneficial cooperative practice will strengthen my sense of obligation to the other participants, thereby making it more likely that I will do or continue to do my part when the burdens of the practice fall on me. Fair play has the advantage on the argument from membership, however, in that it provides an explanation not only of the sense of obligation but of the obligation to cooperate itself. It allows us to explain how some people who may feel that they are under an obligation to obey the laws of an oppressive or stultifying regime are mistaken. Those people may have good reasons, moral as well as prudential, to obey some of the laws in force under such a regime. They may even have obligations to obey some of them, such as the traffic laws that even the subjects of a tyrant will agree to obey when obtaining a driver s licence. But they will have no general obligation to obey the laws or decrees of the regime. The other side of this coin is that the principle of fairness also allows us to explain how people may be under an obligation of fair play that they simply fail to see. In the gargantuan polities of the modern world, where government often seems to be a remote and alien force, it is difficult to appreciate how the strangers around us may well be our partners in a cooperative enterprise. The principle of fair play shows us how they can be and how we may therefore have obligations to and rights against them, including an obligation to them to obey the law. Another advantage of the fair play account is that it does not rely on a problematic analogy between political and familial obligations. Those who advocate the principle of fair play may hold that family members have obligations to one another that are different in kind from the obligations that bind the members of a polity. Recognizing this difference means that the fair play account does not face the embarrassment of finding some ad hoc way to rule out attempts to model the polity after the family. To this claim the critic of the fair play account may respond with the charge that it faces a different embarrassment: that of being unable to account for familial obligations. Many people will hold, for example, that Jones s siblings will have an obligation, ceteris paribus, to take in Jones s orphaned children. Yet such an obligation hardly seems to derive from considerations of fair play. Against this criticism, however, the fair play theorist has two replies. The first is that considerations of fairness are not altogether out of place even in the closest and best of families; in the worst, such considerations help to explain why some members of the family have no obligations to the others qua family members. The second reply is that nothing requires one to take fair play to be the sole source of obligations. Nothing in the principle of fair play precludes the possibility of other grounds of obligation, such as consent or gratitude or even obligations (or duties or responsibilities) of family

11 114 RICHARD DAGGER membership, just as nothing in the membership theory precludes this possibility. The claim is only that fair play provides the basis for those obligations that grow out of cooperative practices, and thus the basis of political obligation. Nor is fair play subject to the third weakness of the membership argument: the problem of group character. As a principle that applies to mutually beneficial cooperative practices, the principle of fair play has standards built into it. It tells us how to know when someone is under an obligation of fair play and when he or she is not. If we find that some members of a political society enjoy almost all the benefits while others bear almost all the burdens, we will be able to conclude not only that those who bear the burdens have no political obligation to the regime but that there is something fundamentally wrong with that regime. There is therefore no need to find something extra to add to the principle that will enable us to distinguish real membership in true communities from illusory membership in false ones. Difficult cases will arise, of course, in which exactly what counts as a fair share of the benefits and burdens of an enterprise will not be clear. But reaching resolution in those cases will require us to probe further the considerations at the heart of the principle, not to go beyond them. We will need to ask what it is reasonable to demand of or allow to the participants of this cooperative practice in the particular circumstances in which they find themselves, which is to say that we will need to raise questions, and perhaps to devise theories, of justice. Such questions are integral to the principle of fair play, however, not the embarrassment they are for a theory that attempts to justify political obligation in terms of membership. Conclusion If the fair play account of political obligation enjoys all the advantages of the membership account and avoids all its defects, then fair play is clearly the superior theory. Yet some may continue to believe that fair play nevertheless lacks the distinctive appeal of the argument from membership. As Tamir puts it, when communal relations are reduced to reciprocity, fairness, or gratitude, there is nothing special or interesting about them; they fail to add any new dimension to our moral thinking and merely become a special case of contractual relationships. 29 To this complaint there are two final responses. First, a relationship grounded in reciprocity and fairness does indeed resemble a contractual relationship, but that does not mean that the former reduces to the latter. A contract establishes a reciprocal relationship that distributes benefits and burdens fairly, at least in the ideal case, between the contracting parties. But that is to say that a contract is a kind of reciprocal and fair relationship, not that all such relationships are contractual. The parties to a contract voluntarily undertake certain burdens in exchange for certain benefits. Contracts are thus voluntary and forward looking; the contractual obligation begins only when the contract takes force. Obligations of fair play, by contrast, are typically nonvoluntary and backward looking. In the case of political obligation, someone who is born into a polity that is reasonably regarded as a cooperative practice will grow up enjoying the benefits of the rule of law and begin to participate in the practice without quite realizing

12 POLITICAL OBLIGATION 115 what he or she is doing. Such a person has not entered into a contractual relationship with the other members of the polity, but he or she has incurred an obligation to them, on the fair play account, to abide by the laws governing their cooperation. 30 The second response is that the fair play account of political obligation serves to strengthen rather than weaken the belief that the members of a community are bound to one another in a special relationship. According to the principle, the members of a reasonably just polity have an obligation to one another to obey the laws of their polity. The polity is a cooperative practice that relies on the rule of law, which means that the benefits of the practice are available only when most of the members accept the burden of obeying the law most of the time. Someone who recognizes that he or she has an obligation of fair play to the cooperating members of the polity will therefore recognize that they stand in a special relationship to him or her as co-participants in a shared enterprise. As one looks ahead in the expectation of continued participation in this practice, moreover, a sense of mutuality begins to supplement the backward-looking aspect of fair play. I may owe the others my obedience to the law, other things being equal, because their obedience in the past has made it possible for me to enjoy the benefits of the rule of law. As a member of the polity, however, I see it as an ongoing endeavour that continuously loses and gains members through birth, death, and migration. Yet despite these changes, a just polity promises to continue to provide the benefits of the rule of law as long as its members continue to bear the burden of obedience. To see this, as the fair play account encourages us to do, is to see oneself as a partner in what is indeed a mutually beneficial relationship. 31 Perhaps the best testimony to the effectiveness of this second response is that Tamir herself seems to endorse it. Communal membership will be meaningless, she writes, unless individuals learn to see it as tied up with their own identity, and perceive fellow members as partners in a shared way of life, as cooperators they can rely on. Having developed this attitude, they cannot but care for other members, wish them well, delight in their success, and share in their misfortune. 32 As Tamir s words indicate, considerations of fair play are essential to the perception of oneself as a partner in a cooperative enterprise. Fair play thus contributes to the sense of identity that fosters a sense of obligation. Someone who believes that he or she is routinely ignored and exploited will eventually conclude that he or she is not truly a member or is at best a second-class citizen of the community or association in question. The sense of fairness thus seems to account for much of the sense of obligation that the appeal to membership provides. 33 Beyond the sense of obligation, furthermore, fair play provides a justification for the obligation itself. If we hope to avoid philosophical anarchism, then, and provide a grounding for political obligation that gives community its due, we must look to the principle of fair play. 34 (Accepted: 8 December 1998) About the Author Richard Dagger, College of Liberal Arts and Sciences, Department of Political Science, Arizona State University, Box Tempe, AZ , USA; rdagger@asu.edu

13 116 RICHARD DAGGER Notes 1 Various forms of this argument appear in: R. Dworkin, Law s Empire. Cambridge MA: Harvard University Press, 1986, pp ; M. Gilbert, Group membership and political obligation, The Monist, 76 (January 1993), ; M. O. Hardimon, Role obligations, The Journal of Philosophy, 91 (July 1994), ; J. Horton, Political Obligation. Atlantic Highlands NJ: Humanities, 1992, ch. 6; and Y. Tamir, Liberal Nationalism. Princeton NJ: Princeton University Press, 1993, chs 5 and 6. In Citizenship and Political Obligation (in P. King (ed.), Socialism and the Common Good: New Fabian Essays. London: Frank Cass, 1996, pp ), Bhikhu Parekh also makes a case for organizational obligations. In a related essay, however, Parekh claims that the obligation to obey the law is a matter of civil and legal rather than political obligation ( A misconceived discourse on political obligation, Political Studies, 41 (1993), , p. 239). 2 A. J. Simmons, Associative political obligations, Ethics, 106 (January 1996), ; C. H. Wellman, Associative allegiances and political obligations, Social Theory and Practice, 23 (Summer 1997), Wolff, In Defense of Anarchism. New York: Harper and Row, 1970; Simmons, Moral Principles and Political Obligations. Princeton NJ: Princeton University Press, Charles Taylor refers to the obligation to belong in Atomism but not to an obligation to obey the laws. See Taylor, Philosophy and the Human Sciences: Philosophical Papers, vol. 2. Cambridge: Cambridge University Press, 1985, pp and 206. In Democracy s Discontent: America in Search of a Public Philosophy. Cambridge MA: Harvard University Press, 1996, Michael Sandel stresses the importance of obligations of solidarity and obligations of membership (esp. pp ), but without reference to legal or political obligation. 5 Gilbert, Group membership and political obligation, p This essay also appears, in slightly different form, in M. Gilbert, Living Together: Rationality, Sociality, and Obligation. Lanham MD: Rowman and Littlefield, 1996, pp Gilbert, Group membership and political obligation, p Gilbert, Living Together, p Gilbert, Group membership and political obligation, p For Yael Tamir, identification with a group apparently contains a voluntary element: One may have acquired associative membership in a particular social group by birth rather than through voluntary choice, but unless one identifies with this membership, it cannot generate obligations. In this restricted sense, we could approach associative obligations as voluntarily assumed. Liberal Nationalism, p Dworkin, Law s Empire, p Horton, Political Obligation, pp ; emphasis added. 12 Hardimon, Role obligations, p In a footnote to this passage, Hardimon adds that I am assuming that the roles of family member and citizen exhaust the class of noncontractual social roles. 13 Hardimon, Role obligations, p. 347; emphasis added. Dworkin makes the same point in a different way: If we arrange familiar fraternal communities along a spectrum ranging from full choice to no choice in membership, political communities fall somewhere in the center. Political obligations are less involuntary than many obligations of family, because political communities do allow people to emigrate, and though the practical value of this choice is often very small the choice itself is important, as we know when we contemplate tyrannies that deny it. Law s Empire, p. 207; emphasis added. 14 For evidence bearing on this intuition, see G. Klosko, The Principle of Fairness and Political Obligation. Lanham MD: Rowman and Littlefield, 1992, Appendix 2; but cf. L. Green, Who Believes in Political Obligation? in J. T. Sanders and J. Narveson (eds) For and Against the State. Lanham MD: Rowman and Littlefield, 1996, pp Horton, Political Obligation, p Horton, Political Obligation, p On this point see Wellman, Associative allegiances and political obligations, pp See Simmons, Associative political obligations, pp. 260 and Horton, Political Obligation, p Tamir, Liberal Nationalism, p. 135; emphasis added. 21 Tamir, Liberal Nationalism, p. 137.

14 POLITICAL OBLIGATION Dworkin, Law s Empire, p. 204; emphasis added. The four conditions are as follows (pp ; emphasis in original): First, [the members] must regard the group s obligations as special, holding distinctly within the group, rather than as general duties its members owe equally to persons outside it. Second, they must accept that these responsibilities are personal: that they run directly from each member to each other member, not just to the group as a whole in some collective sense Third, members must see these responsibilities as following from a more general responsibility each has of concern for the well-being of others in the group; Fourth, members must suppose that the group s practices show not only concern but an equal concern for all members. 23 Hardimon, Role obligations, p Horton presents a similar argument at pp of Political Obligation. 24 Dworkin, Law s Empire, p. 200 (emphasis in original). 25 Tamir, Liberal Nationalism, pp Tamir, Liberal Nationalism, p Even Tamir, when she turns directly to questions of political obligation, seems to insist that one can have a political obligation only to a reasonably just polity: The main advantage of the approach presented here is its ability to place normative evaluation within a context. It can explain why most of us assume, and rightly so, that our obligations are not to the state that is the most just of all, but to our own state, as long as it is reasonably just. Liberal Nationalism, p. 139; emphasis added; (see also p. 134). 28 See esp. R. Arneson, The principle of fairness and free-rider problems, Ethics, 92 (July 1982), ; Klosko, The Principle of Fairness and Political Obligation; and, for a more qualified defence, J. Wolff, Political obligation, fairness, and independence, Ratio, 8 (April 1995), For criticism, see esp. R. Nozick, Anarchy, State, and Utopia. New York: Basic, 1974, pp. 90 5; Simmons, Moral Principles and Political Obligations, ch. 5; M. B. E. Smith, Is there a prima facie obligation to obey the law?, Yale Law Journal, 82 (1973), ; and J. Horton, Political Obligation, esp. pp I develop my own position in Civic Virtues: Rights, Citizenship, and Republican Liberalism. New York: Oxford University Press, 1997, ch. 5, and in Playing fair with punishment, Ethics, 103 (April 1993), , where I offer an account of fair play as the justification for legal punishment. 29 Tamir, Liberal Nationalism, p I develop the argument that people may grow into an obligation to obey the law in Civic Virtues, esp. pp For an explanation of the quasi-contractual nature of the fair play argument, see D. Miller, On Nationality. Oxford: Oxford University Press, 1995, pp On this point, note the defence of the social contribution thesis in A. Gewirth, The Community of Rights. Chicago IL: University of Chicago Press, 1996, esp Tamir, Liberal Nationalism, pp ; emphasis added. 33 For the mutually reinforcing nature of obligations of citizenship and obligations of nationality, see Miller, On Nationality, esp. pp For helpful comments on earlier drafts of this essay, I am grateful to Daniel McDermott, David Miller, and my colleagues in the ASUMPL Reading Group, especially Jack Crittenden and Jeffrie Murphy. John Horton deserves special thanks for his generous and thoughtful response to my criticism of his views.