Res Publica

, Volume 18, Issue 2, pp 173–188

Law Without Legitimacy or Justification? The Flawed Foundations of Philosophical Anarchism

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    • Foundation Year CentreKeele University
Article

DOI: 10.1007/s11158-011-9175-x

Cite this article as:
Windeknecht, R.G. Res Publica (2012) 18: 173. doi:10.1007/s11158-011-9175-x
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Abstract

In this article, I examine A. John Simmons’s philosophical anarchism, and specifically, the problems that result from the combination of its three foundational principles: the strong correlativity of legitimacy rights and political obligations; the strict distinction between justified existence and legitimate authority; and the doctrine of personal consent, more precisely, its supporting assumptions about the natural freedom of individuals and the non-natural states into which individuals are born. As I argue, these assumptions, when combined with the strong correlativity and strict distinction theses, undermine Simmons’s claim, which is central to his philosophical anarchism, that a state may be justified in enforcing the law, even if illegitimate or unjustified in existing.

Keywords

A. John SimmonsPhilosophical anarchismPolitical obligationRights and obligationsJustification and legitimacy
On 4 November 2008 President-Elect Barack Obama addressed an estimated one hundred thousand supporters, who had gathered to hear him speak at a rally in Grant Park, Chicago. Throughout his speech, Obama spoke, again and again, of ‘change,’ a word that had become one of the leitmotifs of his presidential campaign:

This victory alone is not the change we seek - it is only the chance for us to make that change. And that cannot happen if we go back to the way things were. It cannot happen without you. So let us summon a new spirit of patriotism; of service and responsibility where each of us resolves to pitch in and work harder and look after not only ourselves, but each other (NPR 2008).

For some, this ‘new spirit’ may have indeed come as a welcome change from ‘the way things were.’ For others, though, this talk of patriotism and responsibility may have sounded like little more than rhetoric and sophistry. What would give Obama the right to implement policies that could require Americans to serve their country? And why would Americans have an obligation to do so? A. John Simmons, for example, concludes his seminal work Moral Principles and Political Obligations by claiming:

[Citizens] generally have no special political bonds which require that they obey and support the governments of their countries of residence. Most citizens have neither political obligations nor ‘particularized’ political duties, and they will continue to be free of such bonds barring changes in political structures and conventions… Insofar as we believe ourselves to be tied in some special way to our country of residence, most of us are mistaken (Simmons 1979, pp. 192–195).

One of the most common objections that is raised against this denial of political obligation, ‘philosophical anarchism,’ is that it is too strong, that it licenses ‘mindless disobedience to the law’ (Simmons 2001, p. 117). To this objection, Simmons responds that, even absent political obligation, states can justifiably enforce laws and policies that citizens cannot justifiably disobey, for instance, laws and policies that prohibit wrongful acts. Furthermore, Simmons believes that this response is central to philosophical anarchism, that it lends plausibility and saves philosophical anarchism from being counterintuitive (Simmons 1987, p. 275). However, in what follows, I attempt to show that whatever plausibility this claim initially lends is ultimately robbed by the implication that any individual, group, or institution can justifiably enforce these laws and policies as well. First, I distinguish Simmons’s position from other anarchist positions, and identify two theses that comprise two of its foundational pillars: the strong correlativity of legitimacy rights and political obligations, and the strict distinction between justified existence and legitimate authority. Next, I outline the third foundational pillar of Simmons’s philosophical anarchism, the doctrine of personal consent, and, more precisely, its supporting assumptions about the natural freedom of individuals and the non-natural states into which individuals are born. Finally, I examine the problems that result from the overriding importance placed upon these supporting assumptions, and attempt to show that, when combined with the strong correlativity and strict distinction theses, these supporting assumptions make Simmons’s position unstable, that the foundational pillars of philosophical anarchism cannot bear the weight of the claim that a state may be justified in enforcing the law, even if illegitimate or unjustified in existing.

Philosophical Anarchism

According to Simmons, anarchists are united in the claim that ‘all existing states are illegitimate’ (Simmons 2001, p. 103). Legitimacy, here defined, is ‘the complex moral right [the state] possesses to be the exclusive imposer of binding duties on its subjects, to have its subjects comply with these duties, and to use coercion to enforce the duties’ (Simmons 2001, p. 130) and ‘consists in a certain, normally limited kind of authority or right to make binding law and state policy’ (Simmons 2001, p. 106). The correlate of this right, political obligation, is ‘the (defeasible) individual obligation to comply with the lawfully imposed duties that flow from the [the state]’ (Simmons 2001, p. 155), and includes ‘the obligation of citizens to obey the law and to in other ways support the state’ (Simmons 2001, p. 106). I refer to this thesis as the strong correlativity of legitimacy rights and political obligations.

Political legitimacy and obligation arise from citizens entering into a special moral relationship with the state, for example, by the former consenting to be governed by the latter. Simmons contrasts this notion of legitimacy with familiar notions, such as institutional stability and conformity to the rule of law, arguing that these notions and others like them are better understood as grounds for justification, not legitimacy. Whereas stability and lawfulness are qualities that may speak to the state’s goodness or desirability, they say nothing about the purported relationship that gives the state a right to govern its citizenry (Simmons 2001, pp. 130–135). I refer to this thesis as the strict distinction between justified existence and legitimate authority.

Simmons tells us that the most basic division between anarchist theories is between those that judge legitimacy on a priori grounds, and those that judge it on a posteriori grounds. A priori anarchism holds that the state is necessarily illegitimate, due to a flaw that is fundamental to its character or conduct. If the anarchist is committed to voluntarism, he may argue that the state is overly coercive; if he is committed to egalitarianism, that it is unnecessarily hierarchical; or if he is committed to communitarianism, that it is hostile to the existence of meaningful communities. According to such views, there never could be a legitimate state. A posteriori anarchism, by contrast, holds that a state’s legitimacy is contingent upon its manifest character or conduct. An anarchist holding such a view might argue that a state could be legitimate, but that no existing state has ever approximated the requisite conditions. He may appeal to the same principles to which a priori anarchists appeal, e.g., voluntarism, egalitarianism, communitarianism, etc., or he may simply find all theories which affirm legitimacy lacking (Simmons 2001, pp. 104–106).

In addition to the distinction between a priori and a posteriori anarchism, Simmons makes a further division between weak and strong anarchist theories. Both weak and strong anarchism hold that, because all existing states are illegitimate, and all citizens without political obligations, all individuals have a right to disregard the laws and policies of the state. However, strong anarchism also holds that illegitimacy entails a duty to oppose the state’s laws and policies, and, where possible, its existence. Thus, whereas the weak anarchist claims that the state is simply a ‘powerful bully’ whom we are free to ignore, the strong anarchist claims that we ought to oppose the very existence of all such bullies (Simmons 2001, p. 107).

Regardless of the anarchist’s position, a priori or a posteriori, weak or strong, the aforementioned right and duty are not the only reasons for action, nor are they necessarily final or absolute. Anarchists accept, if not insist, that individuals can and do have further obligations and duties, as well as other moral and prudential reasons for acting. Moreover, any reasons can be taken on a balance-of-reasons approach, as opposed to being treated as final or absolute. If the anarchist follows the latter approach, he will feel perfectly justified in disregarding the law or opposing the state, without further consideration. If he follows the former approach, though, he will feel compelled to consider all appropriate reasons for acting, before committing himself to action (Simmons 2001, pp. 107–108).

According to Simmons, the anarchist position that is ‘not just distinctive and initially plausible, but also correct,’ is an a posteriori, weak anarchism that accepts the balance-of-reasons approach (Simmons 2001, p. 110). Thus, what distinguishes philosophical anarchism from other anarchist positions is that illegitimacy does not entail a strong, absolute duty of opposition. Despite its illegitimacy, there may be reasons for not opposing the state, for instance, if its laws prohibit wrongful acts. All things considered, the anarchist cannot plausibly argue that he always ought to oppose the state. Similarly, it would be wrongheaded for the anarchist to claim that illegitimacy is reason enough to oppose the state, as illegitimacy only entails the lack of authority to make binding laws and policies. Although the anarchist could argue that he has a duty to oppose the state, this duty would have to be grounded in something other than illegitimacy, for example, gross injustice. Finally, the philosophical anarchist must allow for at least the possibility of a legitimate state, otherwise he risks arriving at potentially odd and embarrassing conclusions—like the a priori anarchist, who appeals to voluntarism, but is forced to reject even an ideal state that is founded in a genuine act of consent (Simmons 2001, pp. 108–112).1

State-of-Nature Stories

Although Simmons is a self-described anarchist, he could be considered a consent theorist as well. Indeed, in a recent work, he defends what he calls ‘Lockean anarchism’ (Simmons 1993, Ch. 8). Like Locke, the paradigmatic consent theorist, Simmons asserts that consent grounds political obligation. However, unlike Locke, and other consent theorists, he rejects the claim that consent in fact accounts for the political obligations of the majority of citizens in existing states.

According to consent theory, more precisely, ‘the doctrine of personal consent,’ an individual cannot acquire an obligation to obey the state, without voluntarily granting the state a right to create binding laws and policies. This doctrine, in turn, is supported by two assumptions, which concern the natural freedom of individuals, and the non-natural states into which they are born. On the one hand, it is assumed that individuals are capable of possessing certain rights and duties, which are prescribed by natural law. Of particular importance, individuals are capable of possessing a right of self-government, which entails the freedom to act as one chooses, without undue interference, so long as one does not violate the natural law. Barring such violations, this right can only be altered by a voluntary act, which generates an obligation to perform or refrain from performing some other act, as well as a correlative right to the performance or non performance of this other act. On the other hand, it is assumed that the state is a non-natural arrangement, which lacks the rights, and presumably the duties, that are prescribed by natural law. Only individuals are capable of possessing these rights, and only they are capable of empowering the state by consenting to surrender at least some of these rights to the state. In doing so, they generate a right to create and enforce binding laws and policies, as well as a correlative obligation to comply with the enforcement of the binding laws and policies that are created (Simmons 1979, pp. 61–70, 1993, pp. 13–39).

To clarify these assumptions, we can consider five questions: (1) who possesses this natural freedom (or the conditions of personhood and for possessing the right of self-government); (2) what is this natural freedom a freedom to do (or the acts that persons have a right to perform because they possess the right of self government); (3) why is this natural freedom considered ‘natural’ (or the characteristics that distinguish the right of self-government from other rights, such as those that are typically ascribed to citizens); (4) what is the moral standing of individuals, given these natural and non-natural states (or the characteristics that distinguish de facto from de jure citizenship); and (5) what is the moral standing of institutional arrangements, given these natural and non-natural states (or the characteristics that distinguish de facto from de jure states)?

Simmons’s answer to the first question, the question of possession, is grounded in a presumption of moral equality. All persons are morally equal, and, therefore, equally capable of possessing the rights and duties that are prescribed by natural law. Individuals may be unequal in a variety of ways, for example, in strength or intelligence, but the only inequalities that bear on their natural freedom are those that bear on their ability to exercise the right of self-government and enjoy what this right protects. For Simmons, the condition of personhood and for possessing the right of self-government is a capacity for rationality, which entails an ability to govern oneself according to the natural law and pursue a conception of the good life. Thus, individuals who have developed such a capacity possess the freedom to act as they choose, without undue interference, so long as they do not violate the natural law (Simmons 1992, pp. 81–82).

Simmons’s answer to the second question, the question of freedom, is grounded in a division between general rights, and consensual and non-consensual special rights. The former consist of rights that persons could possess independent of social relations, and the latter consist of rights that persons would possess upon entering into a consensual or non-consensual relationship. Following this division, Simmons describes the right of self-government as a composite right, made up of the pre-relational general rights that morally equal persons could possesses independent of social relations. Individuals who possess the right of self government have a right to do their duty, as prescribed by natural law; to pursue non-obligatory ends and conceptions of the good life, so long as they do not violate the natural law; and to create special rights and consensual relationships, which derive whatever binding force they have from the principles of natural law and from being entered into voluntarily (Simmons 1992, pp. 85–86).

Simmons’s answer to the third question, the question of naturalness, is grounded in six contrasts, which illustrate what is natural about the rights, and presumably the duties, that are prescribed by natural law: (1) Natural versus Created, (2) Natural versus Interactional, (3) Natural versus Conventional (or ‘Artificial’), (4) Natural versus Transactional, (5) Natural versus Civil, and (6) Natural versus Institutional (or ‘Nonmoral’) (1992, p. 90). According to Simmons, natural rights are rights that can be possessed independent of political society. Although they could be created through interactions or deliberate transactions, and could have conventional elements, whatever binding force they have would derive from the principles of natural law. Therefore, his account of natural rights leans most heavily upon (5) and (6). His characterization of the right of self-government, though, clearly utilizes all six contrasts, and, thus, what distinguishes this right from other rights, such as those that are typically ascribed to citizens, is that it can be possessed independent of political society, that it is not created through interactions or deliberate transactions, that it is non-conventional in force and content, and that its binding force is derived from the principles of natural law (Simmons 1992, pp. 87–94).

Simmons’s answer to the fourth question, the question of individuals, is grounded in a contrast between the natural state of persons, ‘the state of nature,’ and the consensual relationships that can legitimately emerge from this natural state, specifically, the political relationship. Simmons formally defines the state of nature as follows:

A is in the state of nature with respect to B if and only if A has not voluntarily agreed to join (or is no longer a member of) a legitimate political community of which B is a member.

And then as a special case, falling under this account, we can say:

A is in the state of nature (simpliciter) if and only if A has not voluntarily agreed to join (or is no longer a member of) any legitimate political community (Simmons 1993, p. 21).

Although he does not propose a formal definition for the political relationship, the following is a rough and ready description:

[It is the] relationship among persons that defines political society… [It] is a particular kind of moral relationship among free persons, based in consent and consisting of a certain mutuality of rights and obligations… [It] can arise only within groups of moral equals, all of whom enter the relationship from a state in which they are morally free to govern themselves and pursue their own (innocent) plans and activities (Simmons 1993, pp. 3–6).

Simmons maintains that an individual can leave the state of nature and enter the political relationship in one of two ways. Either he can join together with others who are in the state of nature (simpliciter) and form a new state, or he can join together with others who are in the state of nature (with respect to himself) but are citizens of an existing state. Either way, an individual entering the political relationship must freely consent to surrender certain rights, specifically, the executive right to interpret and enforce the natural law, as well as the mandatory right to preserve oneself and others, and he must further undertake a correlative obligation to respect the exercise of these rights by the state to which they are surrendered. Therefore, what distinguishes de facto from de jure citizenship is whether or not an individual has left the state of nature and entered the political relationship. Individuals in the state of nature, on the one hand, are de facto citizens, because they lack political obligations and are capable of possessing all of the rights and duties that are prescribed by natural law. Individuals in the political relationship, on the other hand, are de jure citizens, because they have consented to surrender certain rights, and, therefore, they have undertaken an obligation to respect the exercise of these rights by the state to which they have been surrendered (Simmons 1993, pp. 59–68).

Simmons’s answer to the fifth question, the question of institutions, follows from this distinction between de facto and de jure citizenship, and elaborates upon the legitimacy right that is generated when individuals consent to surrender certain rights to a particular state. The executive right, he says, becomes the right to interpret and enforce the natural law among citizens, as well as between citizens and aliens. The mandatory right, by contrast, becomes the right to do whatever is necessary for the preservation of the state, so long as the natural law is not violated, and forms the state’s authority in legislative matters. Although Simmons argues that, without this composite right, states lack the authority to create and enforce binding laws and policies, he concedes that, even without this composite right, states may be justified in creating and enforcing laws and policies which prohibit and prevent acts that violate the natural law (Simmons 1993, pp. 59–68). Notwithstanding the existence of justified states, then, what distinguishes de facto states from de jure states is whether or not individuals have consented to surrender certain rights, and, therefore, whether or not they have generated a right to create and enforce binding laws and policies. Just as the condition of personhood and for possessing the right of self-government is a capacity for rationality, the condition of peoplehood and for possessing the right of legitimate authority is the voluntary acts of consent that take individuals out of the state of nature and put them into the political relationship. Recall that, for Simmons, the political relationship is that relationship that defines the state. Thus, states populated by de facto citizens are de facto states, at best, whereas states populated by de jure citizens are de jure states, at least with respect to these individuals.

Buckling Beneath the Weight

Having outlined the doctrine of personal consent, we can examine the problems that result from combining its supporting assumptions with the strong correlativity and strict distinction theses. We can begin by recalling that, for Simmons, familiar notions of legitimacy, such as institutional stability and conformity to the rule of law, are better understood as grounds for justification, not legitimacy:

[The] general quality or virtues of a state (i.e., those features of it appealed to in its justification) are one thing; the nature of its rights over any particular subjects (i.e., that in which its legitimacy with respect to that subject consists) are quite another thing. The legitimacy of a state with respect to you and the state’s other moral qualities are simply independent variables, in the same way that the right of some business to provide services to you and to bill you for them is independent of that business’s efficiency or generosity or usefulness (Simmons 2001, p. 136).

Setting aside the analogy between businesses and states,2 we can admit that, at a level of abstraction, the strict distinction between justification and legitimacy is largely unobjectionable. On the one hand, we can list qualities which justify the state, however we define it. On the other hand, we can list conditions under which the political relationship is made legitimate, most clearly for Simmons, whether or not citizens have consented to be governed by their particular state. Whereas the former qualities constitute ‘generic evaluation,’ the latter conditions constitute what Simmons tellingly calls ‘transactional evaluation’ (2001, p. 149).

As we have seen, the distinction between justification and legitimacy forms the basis for Simmons’s response to one the most common objections that is raised against philosophical anarchism. Namely, that philosophical anarchism is too strong, that its claim of illegitimacy licenses ‘mindless disobedience to the law’ (Simmons 2001, p. 117). To this objection, Simmons responds that, even absent legitimacy, states can justifiably enforce laws and policies that citizens cannot justifiably disobey, for instance, laws and policies that prohibit wrongful acts. We should note, though, that this response utilizes a notion of justification that differs from the notion that justifies the state. This is a justification for state action, a notion which constitutes a third dimension of state evaluation:

[States] may be justified in acting in certain ways on particular occasions, I think, even if they are neither justified nor legitimate - simply because anyone would be justified in so acting. States may be justified on balance in enforcing certain laws, say, even if they are not justified on balance in existing or are not legitimate with respect to those against whom the laws are enforced (Simmons 2001, p. 149).

Before sorting through these three dimensions of state evaluation, we must pause to clarify what is meant by ‘the state.’ At times, Simmons identifies it with ‘society’ (2001, p. 130), at other times, with ‘political institutions,’ which are distinct from ‘legal systems or governments’ (Simmons 2001, p. 102). This ambiguity raises questions for Simmons’s state-of-nature story. For instance, how do we distinguish the state, qua civil society, from the state, qua political society? Surely, this distinction has something to do with the state, qua political institutions, but what are these institutions if not legal systems or governments? Immediately after acknowledging this notion of justification, Simmons provides an example of how it constitutes a third dimension of state evaluation, an example which might bring some clarity to this ambiguity:

In my view even the government of the Third Reich was justified in prohibiting rape and punishing rapists, however illegitimate that government may have been with respect to its subjects and however unjustified was its existence (i.e., however much of an improvement over its rule even the state of nature would have been). It is important to see that justifications for particular actions or policies are not in any simple way related to or derivable from justifications for existing or from possession of the right to be the one who acts or enacts policies (Simmons 2001, p. 149).3

Here, Simmons does not identify the state with society. Indeed, it would be odd to say that the existence of the German state, qua Germany and the German people, was unjustified. Nor does he identify it with political institutions, which are distinct from legal systems or governments. As noted, it would be difficult to say what such institutions were. Rather, Simmons identifies the German state with the government of the Third Reich, a specific set of institutions that maintained a monopoly on the exercise of power, within Germany and its territories, over the German people and the other inhabitants, in short, within and over a particular political society.4

Having defined the state, however imprecisely, we can sort through Simmons’s three dimensions of state evaluation. For the moment, we can set aside Simmons’s second dimension of state evaluation, transactional evaluation. The vast majority of citizens have not consented to be governed by their particular state, which, for Simmons, is the clearest condition under which the political relationship is made legitimate. Given this, we can concede that no particular state has legitimate authority, that no particular state possesses a voluntarily generated right to create and enforce laws and policies in relation to the vast majority of its citizens.

This concession is not as damaging as it may at first appear. On the contrary, it actually clears away some of the conceptual debris that is created by Simmons’s critique of justified political obligation, debris that he uses to build his own defense of philosophical anarchism. Simply put, unless consent theory is revised to better describe political practices, or political practices are restructured to better conform to consent theory, transactional evaluation, informed by a notion of consent, is a dimension of state evaluation that assesses something which does not exist: a voluntarily generated political relationship between the vast majority of citizens and their particular state. For the moment, then, we should set aside transactional evaluation.5

Despite setting aside transactional evaluation, Simmons’s first dimension of state evaluation, general evaluation, still allows us to distinguish states that are justified in existing from states that are unjustified in existing. However, like his definition of the state, we must pause to clarify what is meant by ‘existence.’ Surely, existing not only entails being a set of political institutions, but also entails doing something specific. Similarly, being justified not only entails that this set of institutions is good, but also entails that this set of institutions, mostly, at least, does good. For example, as defined above, the state is a specific set of institutions that, to some degree, successfully maintains a monopoly on the exercise of power within and over a particular political society. Assuming, for the sake of argument, that democracy is a marker for justification, we could say that particular states are justified by being democratic, by maintaining and exercising their political power democratically. Despite Simmons’s arguments to the contrary, then, justification for state action does seem related to justification for state existence. But, to clarify this relation, we must move from the first dimension of state evaluation, which focuses on justification of a state’s existence, to the third dimension of state evaluation, which focuses on justification of a state’s action.

We can begin by noting that this dimension of state evaluation has two facets. The first facet, which deals with what we might call bare acts, holds that particular states are justified in performing certain acts, even if they are unjustified in existing, simply because any individual, group, or institution would be justified in performing these acts. The second facet, which deals with what we might call political acts, holds that particular states are justified in creating and enforcing certain laws and policies. Simmons appears to treat the second facet as an instance of the first facet. That is, he regards the creation and enforcement of certain laws and policies as acts that particular states are justified in performing, even if they are unjustified in existing, simply because any individual, group, or institution would be justified in performing these acts.

But consider Simmons’s example of prohibiting rape and punishing rapists. Assuming, for the sake of argument, that persons possess a natural duty to refrain from harming others, and a natural right to interpret and enforce the natural law, we could say that, as rape harms others, all persons are justified in prohibiting rape and punishing rapists. Furthermore, we could also say that all state officials, qua persons, are justified in prohibiting rape and punishing rapists, even if the states of which they are officials are unjustified in existing. However, we could not therefore say that all states are justified in creating and enforcing laws and policies that prohibit rape and punish rapists, for at least two reasons. First, institutions are not just collections of individuals, nor are they reducible to their individual members. The claim that an individual possesses a right to interpret and enforce the natural law is not tantamount to the claim that an institution of which he is a member possesses such a right itself. Second, prohibiting rape and punishing rapists is different from creating and enforcing laws and policies which prohibit rape and punish rapists. The creation and enforcement of laws and policies are additional acts beyond the bare acts of prohibition and punishment. These additional acts, the political acts, not only involve prohibition and punishment, but also involve, among other things, authoritative rules about prohibition and punishment, as well as second-order rules about the creation, interpretation, and enforcement of these first-order rules. Whereas bare acts are best thought of as simple acts, political acts are better thought of as complex, institutionally supported practices.

Simmons skips these two steps, moving straight from the claim that all state officials, qua persons, are justified in prohibiting rape and punishing rapists to the claim that all states are justified in creating and enforcing laws and policies which prohibit rape and punish rapists. Skipping these two steps makes political acts look like an instance of bare acts, and thus leads to the claim that particular states are justified in creating and enforcing laws and policies that prohibit rape and punish rapists, even if they are unjustified in existing, simply because all persons are justified in creating and enforcing laws and policies that prohibit rape and punish rapists. I suspect that Simmons wants to avoid this claim, because it throws into question the importance of the distinction between justified and unjustified states. Why say that some kinds of states are justified in existing, while other kinds are not, if both kinds of states are justified in creating and enforcing certain laws and policies? Furthermore, why say that any kind of state is justified in existing, if all citizens are justified in creating and enforcing laws and policies themselves? In other words, why distinguish between what a thing should or should not be, if this distinction does not affect what this thing should or should not do?

Perhaps Simmons does not mean to say that particular states are justified in creating and enforcing certain laws and policies, even if they are unjustified in existing, simply because any individual, group, or institution would be justified in creating and enforcing these laws and policies. Instead, maybe certain acts are good or bad, and any individual can be justified or unjustified in performing them. Similarly, maybe particular states are good or bad, in reference to the acts that they perform, and therefore they can be justified or unjustified in existing. The only difference between states, on the one hand, and individuals, on the other, is that states actually can and do create and enforce certain laws and policies, whereas individuals typically cannot and do not.6 On this account, rather than state existence implying state action, state action implies state existence, and the distinction between justified and unjustified states seemingly holds. Rather than what particular states are determining what particular states should do, what particular states do determines whether or not particular states should be.

But consider acts unlike those we have looked at so far, acts which are not straightforwardly justified or unjustified by reference to the natural law. According to Simmons:

[The] most familiar types of (restrictive) laws imposed and enforced by governments can be divided into five categories: (1) those that prohibit acts that wrongly harm… (2) those that impose systems of coordination on morally permissible activities, in order to prevent unintended harm… (3) those that prohibit private conduct that is harmless (and thus not forbidden by natural morality)… (4) those that require or forbid acts in order to protect the government… (5) those that require payments (or which permit seizures of property) to finance or facilitate government operations (Simmons 1993, p. 264).

We have looked at laws and policies which could be classed in category (1), those which prohibit rape and punish rapists. Therefore, we can set aside this category, as well as categories (2) and (3), since all of these categories are only one step removed from the natural law: category (1) concerns immoral acts, which wrongly harm, whereas categories (2) and (3) concern morally permissible acts, which unintentionally harm or are harmless. This leaves us to look at categories (4) and (5), which are not straightforwardly justified or unjustified, since both of these categories are two steps removed from the natural law. As Simmons remarks, although governments are normally unjustified in coercively enforcing, ‘for example, taxation or conscription,’ even regarding these acts, ‘of course, governments may sometimes be justified in coercive interference (if something of moral importance turns on interference)’ (Simmons 1987, p. 279). In other words, whether the acts of creating and enforcing laws and policies about taxation and conscription are justified or unjustified depends upon whether the acts of taxing and conscripting citizens are performed for reasons that are themselves justified or unjustified by reference to the natural law.

We can begin by reviewing the reasons that justify the act of conscripting citizens. Simmons argues that this act will be justified by ‘certain kinds of social and military emergencies,’ which ‘involve a high probability of significant loss of life or liberty,’ because the losses that these kinds of emergencies involve ‘will throw a corresponding moral weight on the side of legitimating conscription’ (2001, p. 61).7 Such emergencies include ‘natural disasters,’ ‘epidemics,’ ‘civil disturbances,’ ‘threat of invasion,’ ‘imminent overthrow of a government,’ as well as ‘foreign crises and suffering’ (Simmons 2001, pp. 61–62). For the sake of simplicity, we can assume that, if these emergencies justify conscription, then they also justify taxation. After all, paying taxes is, in many ways, far less burdensome than serving in the military. We could say, then, that particular states are justified in performing the acts of taxing and conscripting citizens, even if they are unjustified in existing, simply because any individual, group, or institution would be justified in performing the acts of taxing and conscripting citizens to respond to certain emergencies.

But consider two recent events, one social, one military, both emergencies, each involving not a high probability but an actual occurrence of significant loss of life and liberty: Hurricane Katrina and the War in Afghanistan. For the sake of argument, we can assume that both would justify taxation and conscription, that the losses caused by each would outweigh the losses caused by such responses, even though the facts might very well point in the opposite direction.

Hurricane Katrina was one of the deadliest storms in US history. By all accounts, this was due, in part, to bureaucratic measures that slowed the reaction of government agencies to a debilitating crawl (House of Representatives 2006, p. ix). By contrast, private companies, like Wal-Mart Stores, which were free from the red tape of the Federal Emergency Management System, provided relief to the Gulf Coast more efficiently than government agencies could have done alone (House of Representatives 2006, p. 328). Moreover, other companies, such as Blackwater Worldwide, provided military support and security services to private companies and government agencies alike. However, despite the apparent efficiency of the private sector, the thought that these companies would have been justified in taxing and conscripting citizens to respond to Hurricane Katrina seems outlandish. Furthermore, the more modest thought that these companies would have been justified in soliciting voluntary payment and personnel, but competing rather than cooperating with government agencies to respond to Hurricane Katrina, seems only slightly less outlandish. Is this reaction unwarranted prejudice, the result of an unfounded belief that the private sector should not do what only government should? Or is there something more to this belief, something worth taking seriously which Simmons’s philosophical anarchism cannot readily explain? We could ask similar questions about the War in Afghanistan, not least of all because private companies have operated there as well. But the answers would be much the same, and there are still other questions we could ask about the War.

Despite reported gains by the US-led coalition (Department of Defense 2011), every year of the War is described, by one measure or another, as the deadliest since the invasion (Stewart and Cornwell 2011). Amidst planned withdrawals of international military support (Quinn 2011), the Karzai government has lost almost all control outside the capital of Kabul (Hamed 2011), and is consistently ranked among the ten worst failed states in the world (Foreign Policy 2011). Given this grim albeit grossly oversimplified picture, which more closely resembles Hobbes’s State of War than Locke’s State of Nature,8 we might feel confident in claiming that the War is an emergency, that any individual, group, or institution would be justified in taxing and conscripting citizens to respond to such significant loss of life and liberty.

We should note, though, that international opinion considered the Taliban government to be unjustified in existing, to be at least a contributory cause of significant loss of life and liberty in Afghanistan and elsewhere. If this were correct, we might think that the Taliban would have been unjustified in taxing and conscripting citizens, especially since such acts surely would have been performed in an attempt to prevent the invasion of Afghanistan and preserve the Taliban government. Generally, then, we might think that states that are unjustified in existing are unjustified in taxing and conscripting citizens. But this is not what Simmons seems to say:

Threat of invasion by a foreign power may [be an emergency] and will routinely justify more coercive interference in the lives of citizens. The immanent overthrow of a government (from within or without), however, which will almost always be counted as an emergency by those in power, will in fact be an emergency serious enough to justify conscription only if the costs (in terms of life and liberty) of overthrow outweigh those of continuation (Simmons 2001, p. 61).

Simmons seems to say that particular states are justified in taxing and conscripting citizens, even if they are unjustified in existing, but only if their overthrow would cause more significant losses than their continuation. Oddly, then, states that are unjustified in existing could be justified in performing acts that actually ensure their continued existence.9

Setting aside this puzzling conclusion, we can shift our focus from the Taliban governed Islamic Emirate to the NATO supported Islamic Republic. Although we might believe that the Taliban would have been unjustified in responding, we might still feel confident in claiming that at least NATO member states would be justified in taxing and conscripting citizens, in responding to the significant loss of life and liberty that has been caused by the War in Afghanistan. As reasonable as this may sound, though, we should still ask whose citizens could be taxed and conscripted. Surely, NATO member states would not be justified in taxing and conscripting citizens from all existing countries. The thought that the US and UK governments, for example, could justifiably tax and conscript citizens from the People’s Republic of China borders on the ridiculous. Surely, NATO member states would be justified in taxing and conscripting citizens from only their respective countries. However, because any institution can justifiably tax and conscript any individual, Simmons’s philosophical anarchism cannot readily explain why particular states can justifiably tax and conscript citizens from only their own political societies.10 As before, we are left wondering, are these commonplace thoughts unwarranted prejudice? Or is there something more to these commonplace thoughts, something worth taking seriously?

If the foregoing is correct, it seems that Simmons faces a dilemma. Either he can hold onto the problematic claim that a state may be justified in enforcing the law, even if illegitimate or unjustified in existing. He can give up this claim. Or he can seriously consider ordinary opinion and attempt to explain why, under normal circumstances, only states can justifiably create and enforce certain laws and policies, only justified states can justifiably create and enforce certain laws and policies, and only justified states can justifiably create and enforce certain laws and policies but only within and over their own political society. The latter would require reconsidering the foundations of philosophical anarchism, most importantly, the doctrine of personal consent, and its supporting assumptions about the natural freedom of individuals and the non-natural states into which individuals are born. The former would leave the foundations of philosophical anarchism intact, but it would provide an entirely unsatisfying explanation for ordinary opinion. Namely, that states actually can and do create and enforce certain laws and policies, whereas individuals typically cannot and do not, and, thus, under normal conditions, states should act as though they have legitimacy rights, while individuals should act as though they have political obligations, although neither actually has either.11

The reasons for grounding an anarchist or, for that matter, any liberal position in the aforementioned assumptions are, I think, obvious. A high regard for individual freedom is deeply embedded in the liberal tradition. Although we may not agree about what freedom actually amounts to, we do agree, for the most part, that individuals ought to be reasonably free enough to live their lives as they choose. Likewise, a certain amount of distrust of the state is also embedded in the liberal tradition. Although we may not agree about the extent to which the state is actually a threat to individual freedom, we do agree, for the most part, that state intervention into the lives of individuals ought not to go unfettered or unchecked. To its credit, anarchism, of all the positions that one could hold, espouses the highest regard for freedom and the greatest distrust of the state. In a way, it is the gadfly of liberalism. However, when we place too much emphasis upon the aforementioned assumptions, as is the case with Simmons’s philosophical anarchism, we risk drawing undesirable and unconvincing conclusions concerning politics and morality.

Footnotes
1

Knowles (2010, Ch. 6) echoes Simmons’s critique, and Horton (2010, Ch. 5) argues that such a priori anarchism makes its case by relying upon questionable assumptions about moral autonomy and the state. For an example of such a priori anarchism, one which Simmons, Knowles, and Horton all criticize, see Wolff, In Defense of Anarchism (1970).

 
2

Admittedly, this analogy aptly illustrates Simmons’s point. However, the only resemblance the state bears to any sort of business is the voluntary characteristic upon which this analogy hinges, which is itself contentious, making the entire analogy doubly suspect.

 
3

As Simmons defines the state of nature as an absence of the political relationship, we can only assume that, in this quote, Simmons has mistakenly identified the state of nature with the absence of the government of the Third Reich.

 
4

It might be argued that I have forced this definition upon Simmons, that he (a) specifically differentiates between the state and government and (b) deliberately associates a notion of the state with political society. However, Simmons (a) consistently uses the state and government interchangeably and (b) almost exclusively associates a notion of the state with political society only when discussing Locke’s social contract theory.

 
5

Although transactional evaluation should be set aside, Simmons wants to keep this dimension of state evaluation at hand. He insists that, despite all existing states being illegitimate, ‘legitimacy remains an important dimension of institutional evaluation’ (2001, p. 155). However, legitimacy is only relevant regarding the handful of citizens who have consented to be governed by their particular state. If anything, illegitimacy remains an important dimension of institutional evaluation. The difference is important, because a presumption of illegitimacy places the burden of proof on the defender of justified political obligation and prejudices all such defenses from the outset.

 
6

This difference does seem important for Simmons. At times, he appears to approach a notion of authority that is grounded in expertise, or at least efficacy (Simmons 1993, p. 265, 1992, p. 165, 1987, p. 277). See footnote 10 below.

 
7

As Simmons claims that all existing states are illegitimate, we should assume that he means to say, as he does elsewhere, that such emergencies will throw a corresponding moral weight on the side of justifying conscription.

 
8

This distinction between Hobbes’s State of War and Locke’s State of Nature is one to keep in mind. Much of Simmons’s philosophical anarchism, while purportedly based in the latter, only appears plausible when viewed against the former. See footnote 9 below.

 
9

One could respond that a state would be justified in existing precisely because its overthrow would cause more significant losses than its continuation. This response, though, is probably too Hobbesean in flavor for Simmons to stomach (see Simmons 2001, p. 125). See also footnote 8 above.

 
10

Senor makes a similar point in ‘What If There Are No Political Obligations? A Reply to A. J. Simmons’ (1987, p. 265). In response, Simmons might try to explain these commonsense thoughts by reference to efficacy or expertise (1987, p. 277), by claiming that particular states are more efficient or experienced in taxing and conscripting their own citizens. This rationalization, though, does not explain why a seamless bureaucracy, a maximally efficient and experienced state, would be unjustified in taxing and conscripting citizens from any political society, why the US and the UK governments, if they were such bureaucracies, would be unjustified in taxing and conscripting citizens from the People’s Republic of China. See footnote 6 above.

 
11

Horton makes a similar point in ‘In Defence of Associative Political Obligations: Part Two’ (Horton 2007, p. 16).

 

Acknowledgments

I am grateful to Prof. John Horton and Prof. Glen Newey, as well as two anonymous referees from Res Publica, for their helpful comments on earlier drafts of this paper.

Copyright information

© Springer Science+Business Media B.V. 2011