5. Consequentialism and Fairness

1. Consequentialist arguments
   for political obligation
1. The structure of consequentialist
   arguments for political obligation
2. The benefits of government
3. The duty to do good
4. The problem of individual redundancy
2. Rule consequentialism
3. Fairness
1. Fairness theory of political obligation
2. Obedience as the cost of political goods
3. Political obligation for dissenters
4. Particularity and the question
   of alternative goods
4. The problem of legitimacy
1. A consequentialist account
   of legitimacy
2. Comprehensiveness and
   content-independence
3. Supremacy
5. Conclusion

5.1 Consequentialist arguments for political obligation

5.1.1 The structure of consequentialist arguments for political obligation

The simplest arguments for political authority are consequentialist ones. By 'consequentialist arguments for authority', I mean arguments that ascribe moral weight to the goodness or badness of an action's consequences and that appeal directly to that factor in attempting to derive political obligation and legitimacy.[1] I focus in this section on arguments for political obligation. These arguments proceed in two stages. First, one argues that there are great values that are secured by government and that could not be secured without government. Second, one argues that this fact imposes on individuals an obligation to obey the state, on the grounds that (a) we have a duty to promote the values addressed in the first stage of the argument or at least not to undermine them, and (b) obedience to the law is the best way of promoting those values and disobedience is a way of undermining them.

5.1.2 The benefits of government

Many benefits have been claimed for government, but three are particularly prominent. The first major good ascribed to government is that of protection from crimes committed by individuals against other individuals, especially violent crimes and property crimes. The government provides this benefit by attaching punishments to unjust acts - murder, robbery, rape, and so on - that individuals commit against each other. Without government, most people believe that unjust and harmful actions of these kinds would be far more prevalent than they are. Those who are most pessimistic about human nature fear that society would be reduced to a barbaric state of constant war of everyone against everyone.[2] There are two closely related points here. One is that government increases overall social welfare by preventing certain bad things from happening. The other is that government promotes justice, by reducing the number of unjust acts that occur.[3]

The second major benefit ascribed to government is the provision of a detailed, precise, and public set of rules of social conduct that apply uniformly across society. Why do we need government to provide such rules? There are natural principles of justice that exist prior to the state and that individuals can appreciate intuitively. However, these natural principles are vague and general and do not provide sufficient guidance for modern social life. For example, is it ethically permissible to release air pollution, say from one's automobile, or does this violate the rights of those who will inhale the pollutants? It is plausible that one may release certain levels and kinds of pollution but not excessive or excessively toxic pollution. But exactly how much pollution may one release and of what kinds? It is not credible that the natural principles of justice determine unique answers to all questions of this kind nor, if they do, that individuals can reliably apprehend these answers by reflection. Yet we need accepted answers to such questions for people to coordinate and to have peaceful and predictable relations with each other. A government, some argue, is the only reliable source of such a set of generally accepted rules.[4]

The third salient benefit provided by government is that of military defense. Without a means of military defense, it seems, we would easily fall prey to foreign countries seeking to enslave us or steal our resources. Given the military power of governments around the world, effective defense of a given territory seems to require an organized army with modern military technology. The only way of raising such an army seems to be to have a government of our own.

In Part II of this book, I challenge the widespread assumption that government is needed to provide these benefits. Nevertheless, in the present chapter I shall grant that assumption for the sake of argument. I contend that, even with this concession, one cannot derive political authority as commonly understood.

5.1.3 The duty to do good

Consequentialist arguments for political obligation claim that people have a duty to promote some value or values; for example, a duty to promote justice, to promote utility, or to aid in rescuing others from peril.[5] The duty need not be taken to be absolute or unqualified; it may be that the duty obtains only when some great harm or great injustice threatens, and it may be that even in such conditions, the duty can be overridden by sufficiently strong countervailing reasons. This is consistent with the notion that the duty to obey the law need only be a prima facie duty.

Take the case in which you see a child drowning in a shallow pond: you could easily wade in and save the child, though this would entail getting your clothes muddy and missing a class.[6] Nearly everyone agrees that in such a situation, you are morally required to help the child. We might demur in more demanding circumstances - if the child were drowning in the ocean and you had to assume a significant risk to your own life to save the child, then you would not be obligated to do so. You may properly place your own life above that of a stranger in such situations. But when some very great evil threatens another person and you can prevent it with minimal cost to yourself, it would be wrong not to do so.

There are some who would challenge even this modest ethical claim, appealing to an extreme form of individualism.[7] I do not take that approach. I seek rather to rely on broadly common sense moral views, which I take to include the modest principle of a duty to do good described in the preceding paragraph.

Proponents of the consequentialist argument for political obligation argue that general obedience to the law is necessary for the state to function. If too many citizens disobey, the state will collapse, and its enormous benefits will disappear.[8] Furthermore, they argue, the costs of obedience, while significant, are reasonable in light of the benefits, since most people receive substantially greater benefits than costs from the state.[9] Thus, a moderate principle of a duty to do good leads to the conclusion that we are generally bound to obey the law. Or so one might argue.

5.1.4 The problem of individual redundancy

It may be true that general obedience to the law is required for government to provide the benefits that it provides. But it is not true that every law must be generally obeyed; many laws are routinely flouted without the government's collapsing as a result. Nor is it true of any individual that that individual's obedience is required for the government to provide the benefits that it provides. It is plausible that there is some level of disobedience that would cause a governmental collapse. But as long as we are far from that level, any given individual can disobey with no consequences for the survival of government.

Of course, there are some laws that you should obey for independent moral reasons. For instance, you should not rob other people. This is not because your doing so might destroy the government. It is because robbing other people would be an injustice to the specific people robbed. This is not an example of a political obligation; it is simply an example of a general moral obligation to other people. Many other laws similarly correspond to independently compelling moral principles. To defend political obligation, one must argue that there is a content-independent obligation to obey the law because it is the law (Section 1.5) - that is, that one must obey even the laws that do not correspond to independent moral principles.

Return to the case of the child drowning in the shallow pond (Section 5.1.3). But this time, suppose that there are three other people nearby ready to save the child. They do not need help; there is no danger that the child will drown or suffer any other serious harm if you fail to assist. Furthermore, the others are going to enter the pond and muddy their clothes whether or not you also wade in. In that case must you still jump in to help save the child? To do so would simply mean assuming costs with no added benefit to anyone. Your desire to avoid getting your clothes muddy or missing a class would certainly not justify allowing a child to drown. But mightn't it justify allowing a child to be saved entirely by others rather than partly by yourself?

The case of a citizen deciding whether to obey the law is more analogous to this last version of the drowning child story than to the original version: while governmental functioning requires obedience, there are already more than enough people obeying the law so that the government is in no danger of collapsing if you disobey. These other people will continue to obey whether you obey or not. In this situation, your own obedience is just as redundant as an extra rescuer jumping into the pond when there are already three rescuers wading out to save the child.

5.2 Rule consequentialism

I claim that one may break the law when what the law commands is not independently morally required and no serious negative consequences will result. This sort of suggestion is commonly met with the challenge: 'What if everybody did that?' This question is meant to suggest a moral argument against the sort of behavior at issue, but the precise content of the argument is not obvious. It does not seem to be a simple consequentialist appeal - the suggestion is not that, in breaking the law, one is likely to actually cause everybody to do the same thing (whatever exactly counts as 'the same thing'). Rather, the suggestion seems to be that the fact that it would be bad if everybody did something is by itself a strong reason not to do that thing. This idea is closely related to that of rule consequentialism in ethics. Rule consequentialism holds that, rather than always choosing the particular action that will produce the best consequences given the present circumstances, one should act according to general rules, and one should choose the rules that, if generally adopted, would have the best consequences.[10]

In some cases, this idea is plausible. Take the case of a newly planted lawn on a university campus. Students and professors are tempted to take short cuts across the lawn while walking from building to building. One person cutting across the lawn will have no noticeable effect. But if everybody does it, the pristine lawn will be marred by an ugly footpath running through the middle of it. Assume that the aesthetic disvalue of the path outweighs the total benefit it provides in terms of time saved. In this situation, many find it plausible that one ought not to walk across the lawn. This appears to be an illustration of the 'What if everyone did that?' principle, the principle that one ought not to do what would be bad if generally practiced.

But in other cases, the principle seems absurd. Suppose I decide to become a professional philosopher. This seems permissible. But what if everybody did this? Everyone would philosophize all day, and we would all starve. Presumably this does not show that it is morally wrong to be a professional philosopher. We will not in fact starve, because the farmers are not all going to become philosophers merely because I decide to become one. In this case, 'What would happen if everyone did what I do?' seems irrelevant.

One might try to save rule consequentialism from this objection by taking a more nuanced view of the 'rule' I am acting on. Perhaps when I decide to become a philosopher, I am not acting on the rule 'Be a philosopher' but on some more complex rule, such as 'Be a philosopher, provided that there are not already far too many philosophers' or 'Choose the profession best suited to you, provided that there are enough people in other professions that your doing so does not have serious negative consequences.' If everyone acted on either of those rules, then we would not all starve.

But just as I may claim to be following the rule 'Be a philosopher, provided that there are not too many philosophers' or 'provided that there will be no serious negative consequences', individuals who choose to break the law could often claim to be following some such rule as 'Break the law when what the law commands is not independently morally required, provided that there are not too many people breaking the law' or ' ... provided that your doing so will not have serious negative consequences.' The proviso tacked onto the end of this rule is perfectly parallel to the proviso tacked onto the 'Be a philosopher' rule, so whatever rationale allows us to include the latter proviso will almost certainly license inclusion of the former. It appears, then, that rule consequentialism itself is defensible only if it does not support a general defense of political obligation.

5.3 Fairness

5.3.1 The fairness theory of political obligation

Another account holds that one must obey the law because to disobey is unfair to other members of one's society, who generally obey.[11] I shall refer to this sort of obligation as an obligation of 'fair play'.

The argument is not a consequentialist one - the claim is not that one's disobedience will cause harmful consequences.

Nevertheless, it is easy to move from consequentialist theories to the fairness theory. Once we notice that individual disobedience has no harmful consequences, it is natural to move to rule consequentialism, appealing to the consequences of general disobedience. But we encounter many cases, such as that of a person deciding to become an academic philosopher, in which there is nothing wrong with doing something that it would be extremely bad for everyone to do. We must then explain what differentiates the cases in which it seems wrong to perform an action that would be bad for everyone to do from the cases in which it seems perfectly all right to perform such an action. The fairness theory offers an attractive answer to this question: it is a matter of whether the action treats others unfairly.

There is nothing unfair about my becoming a philosopher, despite the fact that it would be bad if everyone did so. In being a philosopher, I do not, for example, increase the burdens on members of other professions. On the contrary, members of other professions prefer less marketplace competition and therefore prefer that fewer others join their profession.

Contrast the following scenario. You are in a lifeboat with several other people. You are caught in a storm, and the boat is taking on water, which needs to be bailed out. Other passengers take up containers and start bailing. The other passengers' efforts are clearly sufficient to keep the boat afloat; thus, no large negative consequences will result if you refuse to bail. Nevertheless, it seems obvious that you should help bail water. Intuitively, it would be unfair to let the others do all the work.

Why would this be unfair? The important features of the situation seem to be as follows:

1. There is a large good being produced by the actions of others - in this case, that the boat remains afloat. In contrast, if the others were doing something harmful (say, scooping water into the boat), useless (say, praying to Poseidon), or merely of trivial value (say, entertaining each other by telling stories), then you would not be obligated to help.
2. The others assume a cost that is causally necessary to the production of the good. In this case, the cost is the effort involved in bailing water.
3. You receive a fair share of the benefit being produced. In this case, you avoid drowning
4. Your participation in the cooperative scheme would causally contribute to the production of the good.
5. The costs to you of participation would be reasonable and not significantly greater than the costs undertaken by others.
6. Your participation would not interfere with your doing something more important. For example, suppose that instead of bailing water, you decide to tie down the supplies on the boat to prevent their being thrown overboard. Assume that this is more important than helping to bail water. In this case, it is not unfair to refrain from helping to bail water.

When these six conditions are satisfied, it is unfair to refuse to contribute to the production of the good.

Advocates of the Fair Play Account argue that to disobey the law is to treat other members of one's society unfairly. Government produces significant benefits. Other members of one's society, by paying taxes and obeying laws, have undertaken the costs required to provide these benefits. All of us share in at least some of the benefits of government, and most receive a fair share of those benefits. Each of us can causally contribute to providing the benefits by paying taxes and obeying the laws. The cost is significant, but it is typically comparable to the costs borne by others, and it is reasonable in view of the benefits. Therefore, it would be unfair not to do our part in supporting government by paying taxes and generally obeying the laws.

5.3.2 Obedience as the cost of political goods

In situations in which an obligation of fair play exists, one is not typically obligated to do whatever other participants of the cooperative scheme tell one to do merely because they tell one to do it. In the water-bailing case, suppose that one of the other bailers tells you to go and make him a sandwich. This you are not morally required to do. What you are obligated to do is only to causally contribute to providing the benefits, not to render general obedience or fealty toward anyone.

How, then, is the notion of fairness supposed to generate political obligations? The argument is that, in this particular case, obedience to the law constitutes sharing the cost of providing the benefits of the cooperative scheme. As discussed earlier (Section 5.1.2), the central benefits of government include protection from injustices committed by private criminals or foreign governments and the provision of predictable rules for social cooperation. So the argument must be that obedience to the law causally contributes to providing these benefits.

In the case of some laws, it is very plausible that obedience contributes to the provision of these benefits and thus counts as sharing in the costs of their provision. Consider the laws against murder and theft. By obeying these laws, I directly contribute to the good of security for other members of my society. But this does not obviously exemplify political obligation, because I have an obligation independent of the law to respect the rights of others. It is not clear that the existence of a law against murder increases my moral obligation not to commit murder nor that it increases the 'unfairness' involved in murdering someone.

Tax laws provide a more believable example. Here it is very clear how obedience contributes to the provision of governmental benefits: one's tax money will be used to hire judges, police officers, soldiers, and so on. So in paying taxes, one does one's share in providing the benefits of government. This is an instance of political obligation, for one would not be obligated to pay this money if the tax laws did not exist.

Other laws are more problematic. To take one example, in the United States and most other countries, it is illegal to smoke marijuana. In what way does obedience to this law constitute a sharing of the costs of providing protection from foreign governments or domestic criminals or providing predictable rules for social cooperation? How does one, by refraining from smoking marijuana, causally contribute to the security of one's society? This is no trivial or peripheral case. Enforcement of drug laws is a very large portion of law enforcement in the United States, where drug offenders account for about 25 percent of local jail inmates, 20 percent of state prison inmates, and 52 percent of federal prison inmates.[13] As of this writing, over half a million Americans are imprisoned on drug charges.[14]

Nor is this an isolated example. Many other laws raise similar questions. In the United States, it is illegal to provide legal advice to people without admission to the bar (even if you explicitly inform your advisees that you have not been admitted and they want your advice anyway). It is illegal to buy an hour of labor for less than $7.25. Or to buy sex for any amount of money. Or to sell packaged food without listing the number of calories it contains on the package. Or to run a private company that delivers mail to individuals' mailboxes. It is illegal to sell stevia as a food additive, though legal to sell it as a 'dietary supplement'. And so on. These are just a few of the hundreds of thousands of legal restrictions in force in the United States.

In all of these cases, it is difficult to see the connection between the legally required behavior and the sharing of costs for providing essential governmental services. It seems that the state could very well provide the goods described in Section 5.1.2 without any of the laws described in the preceding two paragraphs.[15]

Obedience to the law, according to advocates of the Fair Play Account, is analogous to helping bail water out of a lifeboat. But in view of the aforementioned laws, a closer analogy would be as follows. The lifeboat is taking on water. The passengers gather and discuss what to do about the problem. Amajority (not including you) want Bob to devise a solution. Bob thinks for a minute, then announces the following plan:

1. All passengers shall start bailing water out of the boat;
2. they shall pray to Poseidon to ask for his mercy;
3. they shall flagellate themselves with belts to prove their seriousness; and
4. they shall each pay $50 to Sally, who helped Bob get elected.

You know that item (i) is useful, item (ii) is useless, and items (iii) and (iv) are harmful to most passengers. Nonetheless, most other passengers participate in all four parts of Bob's plan. If you refuse to pray, self-flagellate, or pay Sally, do you thereby act wrongly? Do you treat the other passengers unfairly?

Failure to pray to Poseidon, whip yourself, and pay Sally is not unfair, because those actions would not contribute causally to the good of keeping the boat afloat. If other passengers feel aggrieved at suffering the lash while you do not, the remedy is simple: they should stop whipping themselves. The fault lies in themselves and Bob, not in you.

Recall that political obligations are supposed to be content-independent (Section 1.5) - that is, it is said that one must follow the law regardless of its content (within some broad constraints) and regardless of whether the law is correct. The above discussion suggests that this is not the case. One must examine the content of a particular law to determine whether the behavior it enjoins genuinely contributes to the provision of political goods before one can say whether one has any fairness- based reason to follow that law.

Some would argue that, even if a given law is not needed to carry out the government's central functions, obedience to that law is still part of the cost of providing essential government services because disobedience risks bringing down the government and all social order. We have criticized this sort of claim above (Section 5.1.4). But if it were true, it would do as much to undermine content-independent political legitimacy as it would to support content-independent political obligation. Presumably, if individuals are obligated to help maintain social order, the state is similarly obligated. If disobedience to any law risks causing a collapse of social order, then the state, in making laws that are not necessary to maintaining social order and that are likely to be widely disobeyed, is itself threatening social order far more than a single individual who disobeys one of these laws. Furthermore, asking the state to renounce its desire to make such unnecessary laws is more reasonable and less onerous than asking an individual to renounce his personal liberties. Therefore, if one holds that the individual nevertheless must obey such laws when they are made, it is much clearer that the state must not make such laws. And thus, one cannot simultaneously defend political obligation and political legitimacy on this view.

5.3.3 Political obligation for dissenters

A second problem for the Fair Play Account concerns those who fail to endorse the state's activities. This includes some individuals who feel they do not need the state; for example, hermits living in the wilderness or indigenous peoples who would prefer that European colonists had never arrived on their continent. It includes those who are morally or ideologically opposed to government in general (anarchists). It includes people who, while supporting the general idea of government, believe that the proper sort of government is radically different from the government they have. And it includes people who oppose specific government programs but are nevertheless forced to contribute to them. For instance, pacifists may not want the alleged good of a military force, yet they must pay for it just as everyone else does.

We have seen that it is difficult to account for an obligation to assist in useless or harmful projects. Here, we see that it is also difficult to account for an obligation to assist in projects to which one is sincerely opposed, whether or not one's opposition is well founded. Return to the lifeboat example. This time, suppose that the other passengers on the lifeboat believe that praying to Jehovah will assist them in staying afloat. Suppose, even, that they are correct in this belief: Jehovah exists and is receptive to petitionary prayer. Provided that a large majority pray, Jehovah will assist them. But Sally does not believe this. Sally believes that praying to Jehovah will more likely be harmful, because it will offend Cthulhu. She therefore opposes the other passengers' plan. In this situation, would it be unfair of Sally to refuse to pray to Jehovah?

If the existence of Jehovah and the effectiveness of petitionary prayer were easily verifiable facts, which Sally could be blamed for failing to know, then perhaps Sally would have a moral obligation to pray to Jehovah. But assume that this is not the case. Assume that these are matters on which there is reasonable disagreement and that Sally's view is rational or at least not markedly less rational than the view of the majority of passengers. In that case, it is not wrong of Sally to refrain from praying to Jehovah. She is not seeking to gain some sort of unfair advantage over others nor to profit through others' labors. If the others should try to force Sally to join in their prayers, they and not she would be acting unfairly.

In the political case, there are a number of individuals who oppose various government programs. These are not people who seek to free ride on others' efforts - they are not simply wishing for others to bear the programs' costs. They do not want these programs to exist at all. In many cases, they take governmental projects to be seriously unjust or otherwise morally unacceptable. And in many cases, their view, whether correct or incorrect, is perfectly reasonable. I should think this is the case in regard to those who oppose the U.S. presence in Afghanistan, drug prohibition, immigration restrictions, and several other controversial laws or governmental projects. There are even some who reasonably regard the institution of government itself as unjust. If one reasonably regards a project as unjust or immoral, one is hardly free riding, taking advantage of others, or treating others unfairly in refusing to support that project. Individuals thus do not act unfairly when they refuse to cooperate with laws that they reasonably regard as unjust.[16] Again, therefore, no basis for content-independent political obligations is to be found.

5.3.4 Particularity and the question of alternative goods

One of the conditions for an obligation of fair play to participate in a cooperate scheme is that one's participation should not interfere with one's doing something more important [condition (6), Section 5.3.1]. But obeying the law often interferes with doing more important things.

For instance, suppose you have the opportunity to safely evade $1,000 worth of legally prescribed taxes. It would perhaps be wrong to evade the taxes to spend the money on a new television. It would, however, be permissible to evade the taxes to use the money in a more socially valuable way than giving it to the government. And that option is almost certain to be available - the marginal social benefit of each dollar given to the government is much less than the marginal social benefit of a dollar given to any of a variety of extremely effective private charities.[17] In this case, it is not wrong to evade one's taxes to send the money to charity; indeed, doing so is praiseworthy.

Of course, most citizens pay taxes under duress from the state. This duress excuses the payment of taxes, but it does not render it praiseworthy or obligatory.

5.4 The problem of legitimacy

5.4.1 A consequentialist account of legitimacy

Normally, it is wrong to threaten a person with violence to force compliance with some plan of yours. This is generally true even if your plan is mutually beneficial and otherwise morally acceptable. Thus, suppose you are at a board meeting at which you and the other members are discussing how to improve your company's sales. You know that the best way to do this is to hire the Sneaku Ad Agency. Your plan will be morally unobjectionable and highly beneficial to the company. Nevertheless, the other members are not convinced. So you pull out your handgun and order them to vote for your proposal. This behavior would be unacceptable, even though you are acting for everyone's benefit and even though your plan is the right one.

But similar behavior can be justified in emergency circumstances. Return to the lifeboat scenario. The boat is in danger of sinking unless most of the passengers quickly start bailing water. This time, however, suppose that none of the other passengers are willing to bail water. You cannot perform the task alone, and no amount of reasoning or pleading will persuade the myopic passengers to take up their buckets. Finally, you pull your trusty Glock out of your jacket and order the other passengers to start bailing out the boat. In this situation, regrettable as the resort to force may be, your action seems justified.

Christopher Wellman offers an example with a similar lesson.[18] Amy has a medical emergency and needs to be taken to the hospital immediately. Beth is aware of this but has no vehicle with which to transport Amy. So she temporarily steals Cathy's car to take Amy to the hospital. This action violates Cathy's property rights. Nevertheless, the act is permissible, provided that there are no other ways of rescuing Amy without committing at least equally serious rights violations.

These examples suggest the following general principle: it is permissible to coerce a person or violate a person's property rights, provided that doing so is necessary to prevent something much worse from happening.

Thus, perhaps the state is justified in coercing people and seizing people's property through taxation, because doing so is necessary to prevent a virtual collapse of society. If the state did not coercively enforce laws, too many people would break them, and if the state did not coercively collect tax money, the state could not operate at all. In either of these cases, the state could not provide the crucial social benefits described in Section 5.1.2 above.

5.4.2 Comprehensiveness and content-independence

In the version of the lifeboat scenario discussed in Section 5.4.1, you are entitled to use coercion to save everyone on the boat. But this entitlement is neither comprehensive nor content-independent. Your entitlement to coerce is highly specific and content-dependent: it depends upon your having a correct (or at least well-justified) plan for saving the boat, and you may coerce others only to induce cooperation with that plan. More precisely, you must at least be justified in believing that the expected benefits of coercively imposing your plan on the others are very large and much larger than the expected harms. You may not coerce others to induce harmful or useless behaviors or behaviors designed to serve ulterior purposes unrelated to the emergency. For instance, if you display your firearm and order everyone to start scooping water from the ocean into the boat, you are acting wrongly - and similarly if you use the weapon to force the others to pray to Poseidon, lash themselves with belts, or hand over $50 to your friend Sally.

Matters are similar in Wellman's car-stealing scenario. Amy is ethically entitled to violate Cathy's property right in her car. But this entitlement is highly content-specific: Amy may not violate Cathy's property right in just any way she chooses. She may not take the car and drive Beth away from the hospital. She may not drive Beth to the hospital and then take the car for a spin up in the mountains. She may not rifle through the glove compartment looking for valuables. Amy may use the car in one very specific way: she may drive Beth to the hospital. Nothing more.

If, therefore, we rely upon cases like this to account for the state's right to coerce or violate the property rights of its citizens, the proper conclusion is that the state's legitimate powers must be highly specific and content-dependent: the state may coerce individuals only in the minimal way necessary to implement a correct (or at least well-justified) plan for protecting society from the sorts of disasters that allegedly would result from anarchy. The state may not coerce people into cooperating with harmful or useless measures or measures we lack good reason to consider effective. Nor may the state extend the exercise of coercion to pursue just any goal that seems desirable. The state may take the minimal amount of money from its citizens necessary to provide the 'indispensible goods' that justify its existence.[19] It may not take a little extra to buy itself something nice.

How many governmental activities might be considered legitimate on this basis? Domestic laws and policies may be divided into nine categories, depending on the motivations behind them (these categories are not mutually exclusive):

1. Laws designed to protect citizens' rights; for instance, the laws against murder, theft, and fraud.
2. Policies designed to provide public goods, in the economic sense of the term; for instance, military defense and environmental protection.[20]
3. Paternalistic laws, designed to prevent people from harming themselves; for instance, seat belt laws and drug laws.
4. Moralistic laws, designed to prevent behavior that is regarded as 'immoral' for some reason other than harm to self or others or violation of others' rights; for instance, laws against prostitution, gambling, and drugs.
5. Policies designed to aid the poor; for instance, welfare programs, educational subsidies, and minimum wage laws.[21]
6. Rent-seeking policies; that is, policies, other than those in category (5), designed to confer economic advantages on some people at the expense of others; for instance, subsidies given to politically powerful industries, lucrative military contracts awarded to companies with ties to government officials, and licensing requirements that protect existing workers in a profession from competition.
7. Laws designed to secure the state's monopoly and promote its power and wealth; for instance, tax laws, legal tender laws, and laws preventing private competition with government agencies such as the post office and the police.
8. Policies designed to promote other things that are regarded as good in general, apart from the goods listed above; for instance, government provision of schools, government sponsorship for the arts, and government space programs.
9. Laws and policies that appear to be motivated simply by emotion, apart from the above considerations; for instance, immigration restrictions and bans on gay marriage.[22]

When we think in the abstract about the need for law and the importance of obeying the law, we mostly have in mind laws of types (1), (2), and perhaps (7). Laws of those kinds could perhaps be justified by the sort of consequentialist argument discussed in Section 5.4.1. But as the above list suggests, there is much more to the activities of any modern state. And those extra activities, as a rule, cannot be justified by consequentialist arguments.

Let us extend the story of the lifeboat a little further. You have forced the other passengers to bail water out of the boat, thus saving it from sinking. While you have your gun out, you decide you might as well accomplish a few other desirable goals. You see a passenger eating potato chips, which will elevate his risk of heart disease. Pointing the gun at him, you order him to hand over the chips. Then you notice a pair of passengers at the other end of the boat playing a card game. When you see that they have bet money on the game, you threaten to hurt them if they don't stop gambling. Another passenger has some expensive jewelry, so you take it from her and distribute it to some of the poorer passengers. You also collect $50 from everyone and give it to your friend Sally. You threaten to shoot any other passenger who tries to do the same things you are doing. Then you decide that it would be nice to have some art, so you force the other passengers to hand over some of their belongings so you can make a sculpture out of them. Finally, you have an uneasy feeling about one of the passengers - you don't like the way he looks - so you order the other passengers to throw him overboard.

All of these actions are indefensible. Though your initial use of coercion to preserve the lifeboat from sinking was justified, it is absurd to suggest that coercion is justified by the kinds of motives displayed in any of your later actions in this story. These motives are analogous to those displayed in policies of types (3)-(9) listed above.[23]

The specific examples I have given of policy types (3)-(9) are not important, so long as one agrees that there are (a nontrivial number of) policies of each of these types. It does not greatly matter, for instance, whether one agrees that licensing laws are motivated by rent seeking as long as one agrees that a significant number of laws are motivated by rent seeking. The point is that the state has many policies and laws whose motivations do not justify the coercion required to implement them. This is a problem because the state's authority is generally held to be comprehensive and content-independent. On a very strict reading of the comprehensiveness and content-independence conditions, the existence of just a few laws that the state is not entitled to make would preclude the state's having genuine authority. Amore modest version of the comprehensiveness and content-independence conditions would hold that the state does not have genuine authority unless at least the majority of the things that it typically does and that it is generally considered entitled to do are in fact morally permissible. If the range of coercive actions that the state is actually entitled to take is only a small fraction of what it is generally thought to be entitled to do and of what the state in fact does, then I think the state does not truly have legitimate authority. And I think we must admit that that is in fact the case.

5.4.3 Supremacy

The state's authority is also supposed to be supreme, in the sense that no one else has the right to coerce individuals in the way the state does, nor does anyone have the right to coerce the state. This, too, is difficult to account for.

Modifying the lifeboat scenario once again, suppose that on the boat there are two armed passengers, Gumby and Pokey, each of whom recognizes that the lifeboat needs to be bailed out. Again, the other passengers resolutely refuse to good's availability to others; (2) it is nonexcludable, meaning that if it is provided at all, it is impossible or very costly to control who receives it.

No, he does not. If Pokey should see some other impending disaster that can only be averted through coercion, he would be justified in using coercion to avert it. This would have been true if Gumby had never been on the lifeboat, and it remains true after Gumby has used coercion to save the lifeboat from sinking. Gumby's initial coercive act does not forestall justified coercion by others, nor does it reduce the range of circumstances in which others may use coercion, such that it becomes easier in the future for Gumby to be justified in using coercion than for anyone else on the boat. Nor would Pokey be morally barred from taking coercive actions to enforce the water-bailing scheme should Gumby's enforcement prove inadequate.

Before Gumby's initial coercive act, it would have been true that Pokey could permissibly use force against Gumby if this were necessary to prevent Gumby from seriously violating others' rights or to prevent something else very bad from happening. After Gumby's initial coercive act, this remains just as true. The mere fact that Gumby was the first to use coercion to save the boat does not somehow render him immune from being coerced in circumstances in which it would normally be permissible to coerce someone. For example, if, after saving the lifeboat, Gumby then tries to rob the passengers, Pokey would be justified in using force to defend the other passengers.

It seems, then, that the state does not, on consequentialist grounds, have supreme authority. Other agents may use force to achieve the same goals that the state would be justified in using force to achieve in the event that the state's own efforts are inadequate. For example, if the state fails to provide adequate protection from crime, there is no obvious reason why private agents may not provide security using the same methods that the state may use. Private agents may also use force to prevent disasters that the state has not taken sufficient action to avert (again, in the same circumstances in which the force). And private agents may use force against the state when this is necessary to prevent the state from committing serious rights violations or to prevent something else very bad from happening.

When may one use force against others? It is plausible to hold that private individuals and organizations are justified in using force only when

1. they have strong justification for believing that the plan they are attempting to implement is correct (for instance, that it would produce the intended benefits and that these benefits would be great in comparison to the seriousness of the rights violations required to implement the plan);
2. they have strong justification for believing that their use of force would succeed in causing their plan to be implemented; and
3. there are no alternatives available for achieving the benefits without at least equally serious rights violations.

In reality, these conditions are quite restrictive and are seldom realized. It is plausible that most actual vigilantes violate condition (i) and that most actual rebels and terrorists violate both (i) and (ii). So most actual cases of vigilantism or terrorism should not be endorsed.

Nevertheless, the conclusion is a rejection of the supremacy of governmental authority, for the qualifications mentioned in the preceding paragraph apply equally to state actors. The state must also have strong justification for believing that each of its coercively implemented plans is correct, that its use of coercion will be successful, and that there are no better alternatives. If one relies on a consequentialist account of legitimacy of the sort that has been under discussion, there is no apparent way of escaping this conclusion. So there is no clear sense in which the state has supreme authority; it may coerce individuals in the same sorts of circumstances, for the same sorts of reasons, as private agents may coerce individuals. And just as most vigilante and terrorist acts are unjustified, I think it plausible that the great majority of state actions also violate one or more of the conditions for justified coercion.

5.5 Conclusion

Consequentialist and fairness-based arguments come closest to justifying political authority. Nevertheless, they cannot ground content-independent, comprehensive, or supreme authority for the state. The state has the right, at most, to coercively impose correct and just policies to prevent very serious harms.[24] No one has the right to coercively enforce counterproductive or useless policies nor to enforce policies aimed at goals of lesser import. The state may be entitled to collect taxes, to administer a system of police and courts to protect society from individual rights violators, and to provide military defense. In doing so, the state and its agents may take only the minimal funds and employ only the minimal coercion necessary. The state may not go on to coercively impose paternalistic or moralistic laws, policies motivated by rent seeking, or policies aimed at promoting unnecessary goods, such as support for the arts or a space program.

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The Problem of Political Authority

An Examination of the Right to Coerce and the Duty to Obey

Michael Huemer

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