Justifying the State 1 1 Introduction What does it take to justify or legitimate the state? That is, what arguments need to be made, and what complaints need to be answered, in order to defend whatever is involved, normatively or nonnormatively, in the existence or operation of at least some conceivable social order that we would count as a state? Presumably, justifying or legitimating the state involves, at least, showing that the state makes things better: that the state does not miscarry or backfire in its attempts to achieve the ends at which it at least purports to aim, such as peace and justice, prosperity and security. But let us suppose, at least for the sake of argument, that the state does make things better. The state promotes the common good: a just, or fair, or otherwise desirable distribution of opportunities for means to a fulfilling life, where one has an opportunity for something when one will have it if one chooses appropriately. These include opportunities for negative goods, whose paradigms are the absence of physical invasion, constraint, or impediment of one s person by other people. And these also include opportunities for positive goods, whose paradigms are food, water, shelter, sanitation, medical care, and education. The common good, we are supposing, is promoted by cooperating in certain ways, guided by information and know-how (if not in directly providing the relevant goods, then in ensuring a social framework, such as a 1 Earlier versions of this paper were presented in Joseph Raz s Seminar at Columbia Law School, fall 2012; the Ethics Writing Seminar at UCLA, spring 2013; a graduate workshop on legitimacy with Massimo Renzo and Annie Stilz at the Australian National University, summer 2013; a colloquium at Brown University, fall 2013; Dick Fallon and Tim Scanlon s Law and Philosophy Workshop at Harvard Law School, fall 2013; a seminar at the Center for Ethics and Public Affairs at the Murphy Institute, Tulane University, spring 2014; the Oxford Studies in Political Philosophy Conference at the University of Missouri, Columbia, fall 2014; and a colloquium at the University of Arizona, fall 2014. I m grateful for comments at those events, especially prepared comments by Jon Quong, as well as for correspondence from Massimo Renzo and Victor Tadros. 1
market economy, that facilitates their provision). We will so cooperate, we are supposing, only if, by and large, we comply with directives that some state issues. And we will so comply, we are supposing, only if the state enforces them. For good measure, let us suppose that the state is directive ideal: that there is no alternative set of directives that the state could issue and enforce that would promote the common good better (although there might be a set that promoted the common good at least as well). And let us suppose that the state is enforcement ideal: it enforces all and only violations of its directives. Its police, courts, and so on, make no mistakes. Supposing all this, at least for the sake of argument, is the state justified or legitimate? Many political philosophers, perhaps most, say no. They don t claim, of course, that making things better per se calls for justification or legitimation. Dissuading people from resorting to violence, and donating to relief agencies doesn t, as a rule, need a defense. But when the state makes things better, in the ways it characteristically does, things are different. There are certain distinctive features of the state, such as its use of force or coercion, its (alleged) power to impose political obligations, or its (alleged) exclusive permission to punish, that can t be justified or legitimated merely by making things better. The state needs to satisfy some further condition. One hears this, needless to say, from anarchists and libertarians. A.J. Simmons argues that the state needs the consent of those subject to it. 2 Robert Nozick argues for a weaker claim: that any state beyond the minimal state, which acts only to provide freedom from force, needs the consent of those subject to it. 3 Nevertheless, many friends of the modern welfare state (or 2 Simmons might grant that a state that makes things better is thereby justified. But it is not thereby legitimate, which, by his definition, requires that the state have rights to exclusively impose and coercively enforce binding duties on its subjects ( Justification and Legitimacy, in Justification and Legitimacy (Cambridge: 2001), pp. 122 157, at p. 134). 3 Nozick, Anarchy, State, and Utopia (Basic Books: 1974). 2
something like it) agree. John Rawls insists that because the state exercises political power, it must be acceptable to those subject to it, justifiable to them in terms that do not presuppose any particular religious doctrine or philosophy of life. 4 Acceptability, like consent, is a further condition beyond simply making things better understood, say, as distributing primary social goods according to the two principles of justice. Now, some of these philosophers may merely think that more needs to be said in order to have a satisfactory positive case in favor of features of the state. On the other hand, some of these philosophers think that those who are subject to the state have at least a prima facie or pro tanto negative complaint, rooted in their interests or claims or rights, against certain features of the state. It is this latter sort of thought driven by a negative complaint, rather than a doubt about a positive case that will be my focus. To illustrate the difference, consider political obligations, understood as duties to comply with state directives, even when we would fulfill our natural duties no worse by disobedience. Some merely question whether there is a satisfactory positive case for political obligations. What value is served or honored by complying with the state s directives, they wonder, when doing so isn t necessary to fulfill one s natural duties? Why isn t it pointless? This isn t a complaint raised on behalf of a particular person, in defense of their interests or claims or rights. It s just an observation that there s a gap in the argument for political obligations. Accordingly, when some insist on consent as a necessary condition of political obligation, it may only be to bridge this gap. In other words, they see consent as a necessary constituent of the only kind of value that might provide a positive case in favor of political 4 More precisely: our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason (Rawls, Political Liberalism (Columbia: 1993), p. 136 37). 3
obligation. For instance, they may reason, first, that consent is necessary for a promise to the state, or for a valuable special relationship to the state. And they may reason, second, that a promise, or valuable special relationship to the state, is the only value that might be served, or honored, by complying with the state s directives, in those cases where one could fulfill one s natural duties just as well by violating them. By contrast, some press a complaint against political obligations. Thus, some insist on consent not to provide a value (e.g., a promise or special relationship) that complying with the state s directives might serve or honor. Instead, they insist on consent in the way in which one might insist on consent to license surgery: namely, to waive a complaint on behalf of those who would be subject to political obligations, to lift a moral barrier protecting them from such obligations. This seems to be what Simmons suggests when he writes that no state can acquire the right to insist on participation in its enterprises by unwilling free persons. To deny this is simply to deny the natural freedom of persons. 5 Indeed, this latter sort of idea is pervasive: that those subject to the state have a complaint, whether about political obligations or something else, which imposes a special justificatory demand, which is not met merely by the state s promoting the common good. For instance, Rawls s thought that the exercise of political power is legitimate only when it can be accepted by those subject to it, has the relevant structure: those subject to such political power have a complaint about it, which must be addressed, if not by their consenting to it, then by its being acceptable to them. 6 5 Simmons, Justification and Legitimacy, p. 136. 6 As William A. Edmundson, Three Anarchical Fallacies (Cambridge: 1998) puts it: The coercive nature of law not only renders the state presumptively illegitimate, it sets the bar of legitimacy at a higher level than is normally necessary for the legitimacy of individual or concerted private activity: What state legitimacy requires is unanimous assent if not actual 4
Yet is it remarkably elusive what the complaint is supposed to be. In this paper, I will investigate several familiar candidate targets of the complaint. Although these different candidates raise very different moral issues, it is hard to find a treatment of the subject that does not, at some point, confuse them. If nothing else, I hope this paper will illustrate the importance of keeping them distinct. These candidates include: political obligations (or a duty to obey the law), an exclusive moral permission, enjoyed by the state alone, to enforce natural duties, the use of force, the issuing of threats, and the use of property (e.g., in taxation). With respect to each potential target, I submit, we find one or both of two things. First, removing the candidate target doesn t remove the complaint. That is, if we subtract, in imagination, the candidate target from the state, we still have, intuitively, something that counts as a state, subject to the same complaint. Second, the candidate target is, either by anyone s lights, or at least by the lights of those who insist that there is a complaint, unobjectionable. So what then nourishes this pervasive idea: that something about the state, or about political rule, provokes a complaint, which in turn raises a special justificatory barrier? I am not sure. But, at the end of this paper, I explore a possibility. It is an anxiety that in being subject to the state s decisions, we are subordinated, or put into relations of inferiority, to other people. The problem of justifying the state, if there is one, is not so much of reconciling the state with the liberty of the individual, but rather of reconciling the state with an ideal of equality among individuals. assent, at least hypothetical (90). The influence of Edmundson s book will be felt throughout this essay. 5
2 Political obligations? To begin our search: The complaint, as we observed earlier, often seems to have something to do with political obligations. Again, some doubt, not unreasonably, that there is a sound positive case for political obligations. But, again, we are looking for a complaint. What might the target of the complaint be? Is it the very moral fact (supposing it is a fact) that we have political obligations? It s a difficult thought, that there could be valid protests against Moral Reality itself. But let us try to think it. First, removing the candidate target doesn t remove the complaint. Imagine that we didn t have political obligations. (This may not take much imagination, since perhaps we don t have political obligations.) Nevertheless, the state continues issuing and enforcing directives. Would the fact that we don t have political obligations to comply with the directives that the state is issuing and enforcing silence the complaint? On the contrary, it would seem to amplify the complaint. Second, why are political obligations objectionable? Presumably, natural duties are not objectionable in the same way. What, then, is the difference? Is it that political obligations are imposed on us by another person or will whereas natural duties are not? 7 But this is an illusion. The basic principle that when a state issues a directive to us, we are morally required to comply, if there is such a principle, is not itself imposed by any state. Rather, the state determines how it applies, as a result of making certain choices: namely, to issue directives. The same is true of natural duties. The basic principle that you may not step on my foot is not 7 This is the point of the traditional (voluntarist) insistence that the legitimation of my subjection to practices and rules made by others requires my voluntary agreement. This is why consent theory retains its strong appeal. The subjection of some to the will of others is a serious matter (Simmons, The Duty to Obey and Our Natural Moral Duties, in Christopher Heath Wellman and A. John Simmons, Is There a Duty to Obey the Law?, pp. 93 196, at p. 149, my emphasis). 6
imposed by me. Rather, I determine how it applies, as result of making certain choices. If I move my foot from here to there, then you may no longer step there. Perhaps then the target of the complaint is not the (alleged) fact that we have political obligations. Instead, the target of the complaint is the state s asserting that we have political obligations. But, again, removing the target doesn t remove the complaint. Imagine that the state refrains from asserting that we have political obligations. (Perhaps no imagination is required. Do actual states assert that we are morally required to obey them? When and where do they say this? 8 ) Otherwise, the state continues issuing and enforcing its directives. Would the state s conceding that we have no political obligations to comply silence the complaint? Second, what is objectionable about the state s asserting that we have political obligations? That it thereby asserts something false? There is, of course, an objection to being told falsehoods. But it scarcely has the heft of the complaint we re after. It seems that we ve skirted the real complaint in the vicinity. The real complaint is against the state s enforcing its directives. If the topic of political obligations enters into it, it is as a premise in an argument for this complaint against state enforcement. This argument rests on a premise that might be called the Duty Requirement: that only duties may be enforced. 9 Since 8 Joseph Raz, Authority, Law, and Morality in Ethics in the Public Domain (Oxford: 1994), pp. 210 237 suggests that a claim to the right to impose obligations on subjects is constitutive of a legal system. With Liam Murphy, What Makes Law (Cambridge: 2014), pp. 86, 115 16, I find this far from obvious. It may be constitutive of the state that it claims, or presupposes, a permission to issue and enforce directives, but that is something different. I am more optimistic than Murphy is, however, that Raz s arguments against the incorporation and coherence theses still have force even if the law does not claim the right to impose obligations. For Raz s purposes, it may suffice that the law seeks to induce subjects to comply with its directives without relying on reasons on which [the] directive purports to adjudicate (p. 218). Even if the state does not claim that its directive imposes an obligation, the mere fact that the state will enforce it may suffice so to induce subjects. 9 The Duty Requirement is so taken for granted that it is more often implicated than explicitly stated. The moral prohibitions it is permissible to enforce are the source of whatever legitimacy 7
there are no political obligations, there are no duties to comply with the state s directives. Therefore, according to the Duty Requirement, the state acts impermissibly in enforcing its directives. 3 Prohibitions on private enforcement of natural duties? So we need to consider this complaint against the state s enforcement of its directives head on. But before we do, it s worth considering one other possibility. It is often suggested that the complaint has to do with the exclusiveness of state s permission to enforce natural duties: that private agents are morally forbidden to enforce natural duties. Of course, one might doubt that there is a sound positive case for the state s enjoying an exclusive permission to enforce natural duties. But, again, we are looking for a complaint. What could the target of the complaint be in this case? Is the complaint against the very moral fact (supposing it is a fact) that the state enjoys an exclusive permission to enforce natural duties? First, removing the candidate target doesn t remove the complaint. Imagine (as may well be the case) that the state enjoys no exclusive permission to enforce natural duties. Everyone else is morally permitted to enforce natural duties. Nevertheless, the state continues to issue and enforce its directives, including its directives that prohibit private enforcement. Would the fact that this prohibited private enforcement is nonetheless perfectly moral permissible silence the complaint? On the contrary, it would seem to amplify the complaint. Second, what is objectionable about this moral fact (if it is a fact)? Is it that Moral Reality would deprive us of the opportunity to enforce (at least with a knowingly clear conscience)? (Of course, Moral Reality can t deprive us of the physical opportunity to enforce, or even the opportunity to enforce with a mistakenly clear conscience.) But why is that an the state s fundamental coercive power has (Nozick, Anarchy, State and Utopia, p. 6). See also Jonathan Quong, Liberalism without Perfection (Oxford: 2011), p. 115, and note 28 below. 8
opportunity worth having? What do we lose by losing it, other than a distasteful chore? Once again, it seems that we ve skirted the real complaint in the vicinity. The real complaint is against the state s enforcing its directives. If the topic of the exclusiveness of the state s permission to enforce natural duties enters into it, it is as a premise in an argument for this complaint against state enforcement. The argument again rests on the Duty Requirement: that only duties may be enforced. Since the state does not enjoy an exclusive permission to enforce natural duties since private agents are permitted to enforce natural duties and since there are no political obligations to obey the state s directives prohibiting private enforcement, private agents have no duties to refrain from enforcing natural duties. Therefore, according to the Duty Requirement, the state acts impermissibly in enforcing directives prohibiting permissible private enforcement. 10 4 Deterrents: The Distributive Complaint Thus, two candidates for the target of the complaint have led us to a third: enforcement. And we might well have started there. For it is very often said that the state s use of force or violence or threat of punishment or coercion accounts for its special burden of justification. 11 It is one thing for the state to enforce, say, natural prohibitions on the use of 10 [A]ll illegitimate states do wrong in seizing presumably enforcing, not simply asserting a monopoly on force to which they have no right (Simmons, Justification and Legitimacy, p. 156). [I]t does not seem morally legitimate for a protective agency to announce presumably, to threaten that it will punish everyone whom it discovers to have used force without its express permission (Anarchy, State and Utopia, p. 24). 11 Simmons repeatedly stresses the difficulty of accounting for the state s right to use coercion or to direct and enforce (Simmons, Justification and Legitimacy, p. 137). Nozick s chief complaint against a more than minimal state is that it will violate persons rights not to be forced to do certain things, including to aid others (Nozick, Anarchy, State and Utopia, p. ix). And what makes the state s exercise of political power distinctive for Rawls, and so raises a special burden of justification, is that the state s power is coercive power, insofar as it use[s] force in upholding its laws (Rawls, Political Liberalism, pp. 136 37). The role of force and coercion in raising this special burden is echoed in Charles Larmore, The Moral Basis of 9
force the core of Locke s law of nature. Perhaps the state may do that, just as any agent may. But it is quite another thing for the state to enforce, say, the directives of some artificial scheme for providing public education that it, in its wisdom, has seen fit to try to bring about. What is enforcement? It divides into three categories, which raise different concerns. To enforce a directive, D, may be to threaten: to prevent the agent s violation of D by telling him that he will suffer some consequence that he seeks to avoid if he violates D. Next, to enforce D may be to defend: to prevent the agent s violation of D by more direct, physical means. Note that defense covers a wider range of cases than it might at first seem. Restitution after the fact such as returning stolen goods is often described as a response to a past violation. But in many cases such responses are really just cases of forward-looking Political Liberalism, Journal of Philosophy 96 (1999): 599 625, at pp. 605 608; and Thomas Nagel, Equality and Partiality (Oxford: 1991), ch. 14. See also Michael Huemer, The Problem of Political Authority (Palgrave: 2013), ch. 1, who is especially clear on these issues. When presenting this paper, I have been struck by how many people have left Simmons s work with the impression that he has no complaint about the state s enforcing its directives: that the only tenets of statist commonsense that he rejects are that there are political obligations and that the state enjoys an exclusive permission to enforce natural duties, not shared with every other agent. There are a number of reasons for this. First, some may confuse state directives with natural duties, which Simmons indeed grants that the state may enforce regardless of its legitimacy ( the Third Reich was justified in prohibiting rape and punishing rapists ( Justification and Legitimacy, p. 156)). At times, Simmons invites this confusion, by downplaying the Gap between state directives and natural duties. See note 28, below. Second, some may confuse the claim that the state s enforcement of its directives is impermissible with a position that Simmons disavows: political anarchism, that there is compelling reason to overthrow the state. Perhaps these claims are confused because they are both contrasted with the claim that there are no political obligations. In any event, the fact that the state acts wrongly in enforcing its directives does not entail that it ought to be overthrown. Finally, insofar as Simmons accepts Duty Permission (the view that duties may be enforced) and Duty Requirement (that only duties may be enforced), it would be natural that he should focus on whether there are political obligations as the decisive issue, on which the permissibility of the state s enforcement of its directives turns. 10
defense: they aim to prevent the future violation that would take place if the thief were to remain in control of the stolen goods. 12 Finally, to enforce D may be to impose a deterrent: to follow through on the threat (whether or not the threat itself was permissibly issued), not to prevent the violation of D (which has already occurred), but instead to sustain the potency of future threats to deter the agent or others from violating instances of the same sort of directive. I use impose a deterrent instead of (the admittedly less cumbersome) punish, because punishment is typically thought to involve condemnation. To serve its function of inducing cooperation, following through on deterrent threats needn t involve condemnation. Accordingly, we will not assume that it does involve condemnation. For reasons that will become clearer as we proceed, I start by looking for a complaint against the permissibility of the state s imposing deterrents for violations of its directives. Suppose that some citizen, or subject, Violet, has violated a state directive. May the state impose 12 However, there are some forms of restitution which we might call pure compensation that can t plausibly be counted as forward-looking defense. If I destroy your property, for example, then there is nothing left to defend. Nevertheless, I may be said owe it you to compensate you for the property destroyed. And it might be said that, if necessary, others may use force, or the threat of force, on me so that I compensate you. Although restitution-as-forward-looking-defense and restitution-as-pure-compensation are rarely distinguished, their moral underpinnings are quite different. This is reflected, among other things, in the different role that responsibility plays with respect to these two forms of restitution. Suppose that I am not responsible for what happens to your property in either case. In the case of theft for which I bear no responsibility that is, the case of forward-looking defense it seems plausible that I am morally required to return the property to you and, if necessary, some force, or the threat of force, may be used on me to ensure that it is returned to you. In the case of destruction for which I bear no responsibility that is, the case of pure compensation it seems plausible that I am not required to compensate you (at least not fully), and no force or threat of force can be used to ensure that I do. In any event, restitution-as-pure-compensation does not seem to be itself a way of enforcing a requirement, or at least of seeing to it that a requirement is fulfilled. Instead, it seems to be a possible source of requirements (i.e., to compensate), which might then be enforced by threat, defense, or imposition of deterrents. 11
a deterrent on her? Let us assume that the deterrent, following contemporary practice, is imprisonment. Imprisoning her would deter future violations, which sustains cooperation, which in turn promotes the common good. So what s the problem? Needless to say, in order to be effective, the deterrent may need to curtail Violet s opportunities radically, especially her negative opportunities (not least her opportunity to go where she pleases unobstructed by prison guards). But this is not enough for a complaint. For the opportunities of others, we are supposing, are promoted by the deterrent. By analogy, suppose we don t save one person from one-month-long entrapment in a pit, in order to save two others from two-month-long entrapments in similar pits. We do indeed leave the opportunities of the one person worse than we could have left them. But this is in order to avoid leaving the opportunities of two others worse to a far greater degree. The one doesn t have much of a complaint. And this is because the outcome that we are bringing about is distributively fair. It might be replied, however, that Violet s case is not like this. It isn t as though if Violet isn t imprisoned two others will be imprisoned in similar cells for double the length of time. Instead, not imprisoning Violet will affect each other person far more modestly. By hypothesis, not imprisoning Violet will weaken deterrence. But the effect of this weakened deterrence will be to leave each other person only a little more exposed to property crime, or leave each other person with only a little less in the way of public services. In sum, Violet bears great losses in order to provide others with much smaller benefits. Now, according to an aggregative principle of distribution, imposing the deterrent on Violet might make the distribution better, at least if the little losses that those many others suffer add up to a greater sum than the severe loss that Violet alone suffers. Similarly, according to a desert-based principle of distribution, which discounts the suffering of wrongdoers, imposing the deterrent on Violet might make the distribution better, 12
at least if she acted wrongly in violating the state directive. But according to nonaggregative and non-desert-based principles of distribution (or to desert-based principles in those cases in which Violet has not acted wrongly), imposing the deterrent on Violet worsens the distribution. Which is to say that imposing the deterrent on Violet does not promote the common good after all. Call this the Distributive Complaint Against the State Imposition of Deterrents, or the Distributive Complaint, for short. How, if at all, can the Distributive Complaint be overcome? Consent would presumably do the trick. If someone consents to a smaller share in order to provide others with greater shares, then he has no complaint about a lesser share. Why? A natural answer is this: What he had a distributive claim to was not, strictly speaking, the share of the good. Instead, it was to the opportunity for such a share: the chance to have that good, if he chose in a certain way. When he consents to a smaller share, he hasn t been deprived of this opportunity. He has simply exercised it in a particular way. In section 1, I defined the state s aim the common good as a just distribution of opportunities. Against this, one might protest: No, the state s proper aim is a just distribution of goods. The trivial response is that this is compatible with my definition, since a good is just equivalent to what we might call the improper opportunity for the good whatever one might choose. The less trivial response is that the state often has reason to provide what we might call proper opportunities: to get the good if one chooses appropriately, but not otherwise. There are many possible reasons for this. The recipient s choice may be the best indicator that she has reason to have the good. Or the opportunity to choose may facilitate the recipient s influencedependent activities. (By an influence-dependent activity, I mean an activity that is possible or valuable only insofar as it follows from one s own, free choices or judgments: such as, 13
expression, religious observance, association, or as Joseph Raz understands autonomy 13 being the author of one s life as a whole.) Or the denial of opportunity may be paternalistic (assuming that there is some objection to paternalism). Or, more importantly for present purposes, the state may be able to provide only either an improper opportunity for less of the good, or a proper opportunity for more of the good. Often, although of course not always, the latter opportunity is what we have reason to want. 14 If the relevant currency to be distributed in this case is opportunity, then Violet can raise the Distributive Complaint only if the state provides her with a worse opportunity than it provides others, or a worse opportunity than anyone needs to have. Turn the clock back to before Violet s violation of the state s directive. At that point, the state offered her exactly the same overall set of opportunities goods conditioned by her choices that it offered everyone else. Part of that overall set was this particular opportunity, O1: that if Violet complied with a certain directive, she would not be imprisoned, and if she violated this directive, she would be. In imposing the deterrent on Violet, it might be said, the state isn t depriving her of this opportunity, O1. What it does is consistent with her having this opportunity. Violet might protest: Yes, I grant that my opportunity was no worse than anyone else s, but it was worse than anyone s needed to be. The state could have provided everyone a clearly better opportunity, O2: that whether or not one complies with the directives, one will not suffer the deterrent. But then Violet would be mistaken. If the overall set had included O2 instead of O1, then other opportunities in the O2-set would have been so much worse that the O2-set 13 Raz, The Morality of Freedom (Oxford: 1986). 14 No doubt, there are difficult questions here about what makes one opportunity, or overall set of opportunities, better than another opportunity, or overall set of opportunities. I don t think the value of an opportunity can be reduced to the expectation of the effects of possible exercises of it, based on some probability of those exercises. But I don t have a general, positive theory to offer. I am just relying on what seem to me plausible particular judgments. 14
overall would have been worse (for each individual). Other opportunities in the O1-set depend on deterrence that is provided only by the inclusion of O1. If this seems like sleight of hand, compare a case that has nothing to do with imposing deterrents. Suppose that there is some publicly provided benefit to be distributed. In order to know how to distribute it, the state asks people to apply for it. Imagine that, if the state had to gather the relevant information on its own, it would be too costly to provide the benefit. Dithers chooses not to apply before the deadline, whereas others do apply. As a result, shares of the benefit are distributed to those others, but not to Dithers. Dithers protests: Since I have just as much of a claim to the benefit as others, it is unfair that they have more than I. The state s reply is: What you had an equal claim to was not the benefit, but the opportunity to receive it if you applied. And your claim has been honored as fully as the claims of those who applied and received it. Observe that this response to the Distributive Complaint has two welcome implications. First, it puts pressure on the deterrent of a given severity to be necessary. If a less severe deterrent would have the same deterrent effect, then a better overall package of opportunity for each person is possible: namely, one with the less severe deterrent. Second, it puts pressure on the deterrent of a given severity to be proportional to the violation. If the only deterrent that will deter a given violation is very severe, whereas such violations have only small effects, then that deterrent may make the overall package of opportunity worse. 5 Deterrents: The Deontological Complaint So much for the Distributive Complaint. Another complaint against the state s imposition of deterrents, however, seems to be staring us in the face. Grant that imposing the deterrent achieves a greater good. Still, there are certain things that we may not do to a person even to 15
produce a greater good. We may leave the one person in a pit in order to rescue two others. But surely we may not push the one into the pit in order to rescue two others! After all, this is just a less gruesome version of Judith Thomson s famous case of knocking a man off a footbridge to stop a runaway trolley, in order to save five from being hit by it. 15 Similarly, one might protest on Violet s behalf that imposing a deterrent on her violates a deontological constraint on what may be done to a person even to produce a greater good, such as: Force Constraint: It is impermissible to use force on someone as a means to (or foreseeable side-effect of a means to) a greater good. 16 And, it might be said, imprisoning Violet subjects her to force as a means to a greater good. This, then, is the Deontological Complaint Against State Imposition of Deterrents, or the Deontological Complaint. Of the candidate complaints that I survey in this paper, the Deontological Complaint seems the most important, and so I devote the most time to it. 5.1 The Forceless State With earlier candidate complaints, our first move was to show that removing the target did not remove the complaint. However, it might seem impossible, in this case, to remove the target. How can a state impose deterrent imprisonment without force? 17 In fact, however, it takes only a little imagination. The state might simply build a cage around Violet, while she sleeps in a public park, using materials she does not own, without laying hands on her (directly or with the use of implements). Now, it might be said that this still harms her, by actively bringing it about that she bears the loss of confinement. And active harming is a close cousin to force, subject to similar deontological constraints. 15 Thomson, The Trolley Problem, Yale Law Journal 94 (1985): 1395 1415. 16 Compare Frances Kamm, Intricate Ethics (Oxford: 2006). 17 See Huemer, The Problem of Political Authority, p. 10. 16
So, for good measure, imagine the Omittite Empire. Their Emperor, the Guardian of the Ladder, does not put violators of his directives in prison, or build prisons around them. He doesn t need to. This is because each Omittite, to survive the elements, must descend into his naturally carved hole each night. Every morning, the Guardian drops the Ladder into each hole to enable its occupant to climb back up. His deterrent is simply to withhold the Ladder, confining the occupant there for a fixed period. Suppose an Omittite, Holton, violates some directive, and so the Guardian, as announced, does not drop the Ladder into Holton s hole for several months. This isn t a use of force or an active harming. It s simply a failure to aid. To be sure, there are deontological constraints on refusals to aid, even for the greater good. We may refuse to give life-saving medication to the one in order to have it to give to the five. But we may not refuse to give life-saving medication to the one in order to learn from the progress of his disease how to save the five from it. 18 I take it that this is explained by something like: Non-Aid Constraint: If one is otherwise required to aid someone, it is not sufficient to release one from this requirement that by refusing to aid that person, one can use or affect that person as a means to a greater good. But is the Guardian refusing aid so as to use or affect Holton as a means to the greater good? The Guardian is withholding the Ladder from Holton so that others, among them Dieter, will be deterred from violating the directive. Dieter is deterred by the combination of two beliefs. First, the Belief in Credibility: Dieter s belief that the Guardian won t drop the Ladder to Dieter, if Dieter violates. Second, the Belief in Consequence: Dieter s belief that this is something for Dieter to avoid. Now, if the Guardian were withholding the Ladder from Holton 18 The example is from Philippa Foot, The Problem of Abortion and the Doctrine of Double Effect, in Virtues and Vices (Oxford: 2002), pp. 19 32, at p. 28. 17
so as to be able to make a spectacle of his confinement, so as to sustain Dieter s Belief in Consequence as if to say, Obey, lest ye suffer as, lo, this wretch suffers then he would be refusing aid so as to use Holton as a means. But the Guardian doesn t need to sustain Dieter s Belief in Consequence, and indeed probably can t have much effect on it. It s obvious to Dieter that it will be a bad thing for Dieter if the Ladder isn t dropped to him. He doesn t need to be scared straight. The Guardian needs to sustain only Dieter s Belief in Credibility. And the means to sustaining that belief is simply not dropping the Ladder into Holton s hole, as if to say to Dieter: Look, I mean business. The same will be done in your case. Nothing that happens to Holton as a result of not dropping the Ladder is part of the Guardian s means to the greater good. In sum, the Deontological Complaint cannot so much as be raised in Holton s case. And yet, intuitively, the Omittites forceless system of deterrents seems not very different in its moral character from more familiar, forcible systems. 19 5.2 The Natural Duty Argument Suppose, however, that the state does not have the Guardian s luxury. It must use force in its deterrents. This brings us to our second move: to show that the candidate target is not 19 Libertarians may reply: This thought-experiment is underspecified. Whether there is an objection to the regime all comes down to whether the Guardian owns the ladder. If he wove it from his own hair (and happened upon the design by chance inspiration and not from any scarce genetic advantage, etc.), then all s hunky-dory. He s just a private citizen going about his business. But if he wove it from plant fibers (or did so without leaving enough and as good for others, etc.), well then, he s an enslaving tyrant. (Wait, actually, strictly speaking, even then all might hunky-dory on those left-libertarian views that say that the use of the world is permissible so long as it promotes the common good, understood, say, as equal opportunity for welfare.) But if the libertarian s concern about the state turns on such subtleties about the provenance of the physical instruments of deterrence, then it seems to me a long way off from any traditional or commonsense concern about the state. 18
objectionable or, rather, that those who press a complaint cannot find it objectionable, compatible with their other commitments. Some try to show this with what I will call the Natural Duty Argument. 20 In this section, I will argue that the Natural Duty Argument doesn t answer the Deontological Complaint. On the contrary, it reveals the Complaint s force. The Natural Duty Argument runs as follows: Even proponents of the Deontological Complaint must accept that: (1) Each individual has a natural duty to promote the common good. We re assuming that the state is directive ideal, i.e., that: 20 The Natural Duty Argument is suggested by Quong, Liberalism without Perfection, ch. 4; and Christopher Heath Wellman, Liberalism, Samaritanism, and Political Legitimacy, Philosophy & Public Affairs (1996): 211 237 and Samaritanism and the Duty to Obey the Law, in Wellman and Simmons, Is There a Duty to Obey the Law?, pp. 3 89. Jeremy Waldron, Special Ties and Natural Duties, Philosophy & Public Affairs 22 (1993): 3 30, argues for something like (4) below, but does not discuss the enforcement of directives. However, Wellman, Liberalism, Samaritanism, and Political Legitimacy, p. 219 n. 13, says that his argument for the permissibility of state coercion does not rest on anything like Duty Permission. (The order of argument in Samaritanism and the Duty to Obey the Law reaffirms this.) Instead, his position is that the claims of the target to be free from coercion are simply outweighed in cases of emergency rescue. All the same, I suspect that he is committed to Duty Permission to explain the permissibility of the state s imposition of deterrents. Here s why: The examples that Wellman uses to motivate the claim of outweighing appear to be either of (temporarily) commandeering someone s property, or of issuing (as opposed to following through on) threats. But what is presently at issue is something different: forcible action on someone s person. (Quong s example, p. 127, by contrast, is a use of force on someone s person, although in prospective defense against an attempted violation of a duty, rather than retrospective imposition of a deterrent for a violation of a duty.) And it s not at all intuitive that the Force Constraint is overcome merely because an emergency rescue is underway. After all, toppling one person in order to save two is an emergency rescue! So how does Wellman justify the state s imposition of deterrents: the state s following through on the threats that, as he claims, it is permitted to issue? It s not clear, but in other work, he seems to suggest that forcible action on the person is permissible if the person has forfeited a right by violating the rights of someone else. This is roughly Duty Permission. (See note 32.) So perhaps his view is this: The importance of emergency rescue explains why we have samaritan duties to rescue and others the corresponding positive rights to be rescued, and these in turn, via something like Duty Permission, explain why deterrents may be imposed for their violation. 19
(2) No alternative set of directives that the state could issue and enforce would better promote the common good. So, it follows that: (3) The uniquely best way for any individual to promote the common good is to comply with state directives. So, it follows that: (4) Each individual s natural duty to promote the common good is extensionally equivalent to a duty to comply with state directives. Now, assume: (5) Duty Permission: The Force Constraint is lifted, for purposes of deterrence, when the target violates a duty. 21 Then it follows that: (6) State Imposition: The Force Constraint is lifted, for purposes of deterrence, when the target violates a state directive. Why not pursue the Natural Duty Argument? One reason is that its dialectical reach is limited. First, some might deny Duty Permission. 22 In particular, they might say that the Force Constraint is lifted for violations of natural prohibitions on the use of force, but not for violations of other duties. Would they thereby draw an arbitrary distinction? Perhaps, but in advance of hearing some explanation of Duty Permission, how can we know? Second, some might deny that there is a natural duty to promote the common good. They may accept only that there are 21 Note that the lifting of the Force Constraint is a necessary, but not sufficient condition of its being all things considered permissible to impose a deterrent. 22 Simmons, who affirms the natural right of all persons to enforce morality (by coercion, if necessary), may accept Duty Permission ( The Duty to Obey and Our Natural Moral Duties, p. 192). But Nozick clearly does not: see Anarchy, State and Utopia, pp. 91 93. 20
natural prohibitions on the use of force or, at most, requirements to provide aid in extreme circumstances. 23 The more important reason to avoid the Natural Duty Argument is that it is invalid. It doesn t follow from (2) that the assumption that the state s directives are ideal that (3) the uniquely best way to fulfill one s duty to promote the common good is to comply with state directives. 24 Simmons s well-known particularity problem supplies one reason for this Gap : this divergence between what one is required to do by natural duty and what a directive ideal state directs one to do. Suppose that the natural duty is to contribute to the global common good, and suppose that one can contribute to that at least as well by complying with the directives of a foreign state. For example, a Swede might pay Danish taxes instead of Swedish taxes. So her natural duty to promote the common good does not imply a duty to comply with the directives of the Swedish government to pay Swedish taxes, only a more permissive duty to pay Swedish or Danish taxes. 25 But the Gap does not depend on particularity, so understood. Even if we assumed a single world-state, the Gap would still be there, for reasons familiar from debates over rule utilitarianism. There is often no way for the state to carve out an exception for benign or 23 Simmons accepts a natural duty to promote the common good, see Justification and Legitimacy, p. 137. Whether Nozick would disagree is unclear. But other libertarians explicitly deny a natural duty to promote the common good. See Peter Vallentyne, Left- Libertarianism, Oxford Handbook of Political Philosophy, edited by David Estlund, (Oxford: 2012), pp. 152-68. (However, on a left-libertarian view such as Vallentyne s, the choice to use or appropriate parts of the natural world may have moral consequences similar to a duty to promote the common good.) Interestingly, it isn t clear whether Wellman accepts a duty to promote the common good. He appeals only to samaritan duties to rescue others in cases of emergency. And, arguably, not every failure to advance the common good is a failure to rescue others in a case of emergency. 24 Compare the basic structural point of Murphy, What Makes Law, p. 130. 25 Simmons, Moral Principles and Political Obligations (Princeton: 1979), ch. 6; and The Duty to Obey and Our Natural Moral duties, sect. 7. 21
beneficial individual actions without worse consequences overall. To put it schematically: Although it may promote the common good at least as well for those in condition C to X, it will have very bad consequences for the common good for those not in C to X. And there might be no way for the state to deter the latter without a blanket prohibition of X-ing, whether or not one is in C. Countless examples fit this schema. In the case of coordination problems, it might promote the common good at least as well for those in a condition in which enough others will coordinate to promote the common good in some other way, although it will have very bad consequences for the common good for those in a condition in which not enough others will coordinate to do so. Similarly, it might promote the common good at least as well for those in a condition in which they can act competently without official authorization to act without official authorization, although it will have very bad consequences for the common good for those who cannot act competently without official authorization to act without official authorization. Examples would be skilled and responsible operation of a motor vehicle or practice of medicine without a license, entry into a secured space without proper ID, or the revelation of state secrets in the public interest. 26 Similarly, it might promote the common good at least as well for those in a condition (such as an undercover sting operation) in which it is known that their attempts at harmful acts will be futile to attempt, although it will have very bad consequences for the common good for those whose attempts will succeed to attempt. In sum, a directive ideal state will have to impose deterrents for the violation of directives to act in ways that are not required by any natural duty to promote the common good. Because 26 Compare the cases that Raz advances to show that (at least as far as his Normal Justification Thesis is concerned) the state s directives in a given area often will not have authority over citizens with specialized skills or knowledge in that area. An expert pharmacologist may not be subject to the authority of the government in matters of the safety of drugs (Raz, Morality of Freedom, p. 74). 22