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A FAIR PLAY ACCOUNT OF LEGITIMATE POLITICAL AUTHORITY*

Published online by Cambridge University Press:  06 June 2017

Justin Tosi
Justin Tosi*
Affiliation:
University of Michigan, jtosi@umich.edu
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Abstract

There is an emerging consensus among political philosophers that state legitimacy involves something more than—or perhaps other than—political obligation. Yet the principle of fair play, which many take to be a promising basis for political obligation, has been largely absent from discussions of the revised conception of legitimacy. This paper shows how the principle of fair play can generate legitimate political authority by drawing on a neglected feature of the principle—its stipulation that members of a cooperative scheme must reciprocate specifically by submitting to the scheme's rules.

Type
Research Article
Information
Legal Theory , Volume 23 , Issue 1 , March 2017 , pp. 55 - 67
Copyright
Copyright © Cambridge University Press 2017 

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Footnotes

*

I am thankful for comments on previous drafts from Thomas Christiano, Richard Dagger, Gerald Gaus, Daniel Jacobson, David Schmidtz, Steven Wall, and Christopher Wellman. I am especially grateful to an anonymous referee for Legal Theory, whose suggestions for improving this essay went far above and beyond the call of duty.

References

1. I will use the term “subject” rather than “citizen” to avoid implicitly suggesting that states can hold legitimate political authority only over their citizens.

2. For an overview of the debate, see Dagger, Richard & Lefkowitz, David, Political Obligation , in Stanford Encyclopedia of Philosophy (Zalta, Edward N. ed., 2014)Google Scholar, https://plato.stanford.edu/entries/political-obligation/. For a couple of estimations of the current popularity of philosophical anarchism, see Edmundson, William A., State of the Art: The Duty to Obey the Law , 10 Legal Theory 218 (2004)Google Scholar; Christopher W. Morris, An Essay on the Modern State (1998), at 214.

3. One of the clearest revisionist statements is Copp, David, The Idea of a Legitimate State , 28 Phil. & Pub. Aff. 3 (1999)CrossRefGoogle Scholar.

4. Justifying one set of these rights might be related to the justification of the other, but I will not explore that relationship here. The internal rights seem to be about establishing that there is a special normative relationship between the state and its subjects. The external rights, on the other hand, seem to be largely about the ethics of respecting associations of which one is not a member.

5. E.g., Copp, supra note 3. John Simmons offers the clearest case for this assessment in his classic Moral Principles and Political Obligations (1979).

6. E.g., Edmundson, William A., Political Authority, Moral Powers, and the Intrinsic Value of Obedience , 30 Oxford J. Legal Stud. 179 (2010)CrossRefGoogle Scholar.

7. On the popularity of fair play accounts of political obligation, see, e.g., Dagger, Richard, Philosophical Anarchism and Its Fallacies: A Review Essay , 19 Law & Phil. 391 (2000)Google Scholar; George Klosko, Political Obligations (2005).

8. In particular, I will bracket for now the issue of whether one can incur fair play obligations without voluntarily accepting benefits from a cooperative scheme.

9. To be clear, nothing about my argument will hinge on the inclusion of all of these (and only these) rights in the bundle. This is simply the bundle that I think best represents the internal rights of legitimate states. As long as legitimate political authority can be analyzed in terms of rights, my fair play account can generate legitimate political authority.

10. The grounds of this internal immunity right are, I think, best understood as different from the grounds of the external immunity right.

11. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, and Other Legal Essays (1923). For a helpful overview of the Hohfeldian system of rights, see Judith Jarvis Thomson, The Realm of Rights (1990), at ch. 1.

12. For a recent statement and defense of this view with respect to punishment, see Heath Wellman, Christopher, The Rights Forfeiture Theory of Punishment , 122 Ethics 371 (2012)CrossRefGoogle Scholar. Some would hold instead that those being punished retain their claim right, but that it is overridden. And still others hold that there is no claim right against being punished.

13. See Richard Dagger, Civic Virtues: Rights, Citizenship, and Republican Liberalism (1997); Gur, Noam, Actions, Attitudes, and the Obligation to Obey the Law , 21 J. Pol. Phil. 326 (2012)CrossRefGoogle Scholar; George Klosko, The Principle of Fairness and Political Obligation (rev. ed. 2004); Klosko, Political Obligations (2005); Rawls, John, Legal Obligation and the Duty of Fair Play , in Collected Papers (Richard Freeman, Samuel ed., 1999)Google Scholar; Song, Edward, Acceptance, Fairness, and Political Obligation , 18 Legal Theory 209 (2012)CrossRefGoogle Scholar.

14. Hart, H. L. A., Are There Any Natural Rights? , 64 Phil. Rev. 185 (1955)CrossRefGoogle Scholar.

15. Of course, the account becomes more complicated when the conditions of fairness are not met—for instance, when some do not receive a fair share of the benefits—but this need not detain us.

16. David M. Estlund, Democratic Authority: A Philosophical Framework (2008), at 143.

17. For a fuller statement of this concern, see Edmundson, supra note 6. For a longer discussion of this problem, see my The Possibility of a Fair Play Account of Legitimacy, 30 Ratio 88 (2017).

18. Robert Nozick, Anarchy, State, and Utopia (1974), at 90–95.

19. Zhu, Jiafeng, Fairness, Political Obligation, and the Justificatory Gap , 12 J. Moral Phil. 290 (2015)CrossRefGoogle Scholar.

20. I have also discussed this issue in Rethinking the Principle of Fair Play, Pac. Phil. Q. (forthcoming) and Playing Fair and Following the Rules, 14 J. Moral Phil. 134 (2017).

21. On the requirement of a sign of consent for an obligation to be generated by the principle of consent, see Simmons, supra note 5, at 64.

22. Zhu, supra note 19, at 299–302.

23. H. L. A. Hart, The Concept of Law (2d ed. 1994), 80–81.

24. Hart's favored example of such conferral is the law establishing criteria for a valid will.

25. For more detailed discussions of the fair play justification of punishment than I can venture into here, see Dagger, Richard, Playing Fair with Punishment , 103 Ethics 473 (1993)CrossRefGoogle Scholar; Hoskins, Zachary, Fair Play, Political Obligation, and Punishment , 5 Crim. L. & Phil. 53 (2011)Google Scholar; Morris, Herbert, Persons and Punishment , 52 The Monist 475 (1968)CrossRefGoogle Scholar.