Political Authority 13:21

Brennan examines a key question in political philosophy: what, if anything, is the difference between the government and ordinary people?

Further Reading
Michael Huemer, The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey

Brennan: So early on, I noted kind of a puzzle about government versus regular people.  If Virtuous Vani decides that you shouldn’t buy sugar and eat sugar, and then forbids you from doing that, you call the cops, and she gets arrested.  If on the other hand your congressperson decides that and the government forbids you from doing it, you can’t call the cops.  The cops will be the ones that will help make sure you’re not allowed to do it.  So what could justify that?  And also in particular, when the government makes these orders, do you have to follow them?  So if you think about the government’s ordering you around all the time saying you can’t eat this, you can’t eat that, you’re allowed to buy this but only if you pay this tax ahead of time, you’re allowed to sell this but only if you get this license, fill out these forms, and pay this tax.  You have to drive this fast enough, this fast.  At the end of the year, you got to fill in some forms and turn a third of your money, etc, etc.  It’s constantly bossing you around in ways that like if I were to do that, you would think I’m a horrible person.  But if the government does that, we think it’s okay.  So what could justify that and do you have any obligation to go along with those rules?  So let me just introduce a couple of concepts.  Philosophers talk about what we call government legitimacy and government authority.  And these are separate concepts.  And they’re not always used exactly the same way by every philosopher but this is how I’m going to use them.  The word legitimacy refers to the right to create rules and enforce them, and violently perhaps.  If you think about it, government rules are enforced with violence.  So if you get a speeding ticket, what they might just say is “Well, you were speeding, we are ordering you to pay $25 on top of whatever you were doing.”  That’s just another order.  But eventually if you don’t pay that ticket, they’ll forbid you to drive which is just an order if you don’t drive.  If you keep driving, eventually what will happen is they’ll come with lights blazing and beat you up and throw you in jail, and perhaps worse.  So every time the government makes a rule and enforces it, it’s effectively threatening you with violence perhaps even to the point of death if you continue resisting.

Authority on the other hand refers to something like a power to create in other people an obligation to do something.  So when they command you to do something, you have to do it.  And particularly, it has to be because they said so.  So if you think about it like it’s an obligation to obey the law, well the law requires you to do things, you have preexisting moral obligations to do so I have an obligation not to kill you that exists independently of the law and vice versa.  So yeah, there’s a law that says I’m not supposed to murder you but I also have a moral obligation not to do that.  So it’s not clear that I have to do it because the law says so.  It looks like I just have to do because that’s what morality requires, period.  Question:  Are there laws or rules you have to obey because the government commands you to do so like I have to pass in my taxes because I’m told to do so or I have a moral duty to do what the government says?  Surprisingly, even though the typical political philosopher is probably a moderate democrat and fairly into the state and advocates having a nation state, a fairly strong nation state, the kind of dominant view in political philosophy right now is skepticism about government authority, skepticism about whether there is any such thing as an obligation to obey the law.  So most of the average view now is what’s called philosophical anarchism.  So philosophical anarchism is really the view that governments can be legitimate but they’re not authoritative which means that it’s okay for governments to exist of a certain sort, it’s okay for them to create and enforce certain kinds of rules, but you don’t actually have an obligation to obey any of the rules because the government said so.  Again, we’re just talking about rules that you wouldn’t have any preexisting obligation to go along with.  So you shouldn’t murder me just because it’s the wrong thing to do independent of what the government says.  

So throughout history though, most people have believed in their duty to obey the law.  Most people now believe there is such a thing as a duty to obey the law but it’s kind of puzzling why there would be like why would the government be allowed to create an obligation in you when the average person wouldn’t?  What could possibly justify that?  And there’ve been a large number of theories offered on behalf of this including one that is actually in the Declaration of Independence which is what we call consent theory, the idea that this is what I’ve heard in civics classes all growing up.  Well government has authority because it rests upon the consent of the governed.  You’d hear something like you have an effect a contract with the government.  It’s offering you certain goods and services and in response, you offer your obedience.  You’re basically making a contract.  The government will provide me with certain things and then I will obey its orders as my way of kind of paying for those things or part of it.  The idea is you made a promise to obey and you have to keep your promise.  The problem with that view though is that it’s just false.  It just didn’t happen.  So David Hume, a British philosopher, a Scottish philosopher wrote hundreds of years ago, this whole theory of a social contract is just historically speaking a bunch of nonsense.  It’s not like there was actually a social contract written.  The social contract is not worth the paper, it wasn’t written on.  Instead what happened was governments arose through conquest and war, stationary band that’s deciding who’s kind of better to kind of stay in power as opposed to like just praying on their people, and there was no actual contract that took place.   Further, it doesn’t look like a relationship to government is at all consensual.  Now again, it’s not to say we shouldn’t have government.  That’s a separate question, but it’s just to say we don’t appear to have a consensual relationship with government.  And see why, think about a genuinely consensual transaction, see how it goes, and then compare that to a government interaction.  

So about a year ago, I decided to buy new guitar, Fender Deluxe American Stratocaster. Alright, how did that go?  Well first, I performed an action that signified my consent.  In this case, I got on the phone and I called my dealer, and said, “I want to buy this guitar on the website like send it to me.”  The outcome that I lost money but gained a guitar wouldn’t have occurred if I hadn’t performed that act.  Secondly, I wasn’t forced to perform that act.  It wasn’t like there’s a gun behind my head telling me like a person saying, “You will order a guitar right now or I’ll shoot you.”  I just decided to do it.  I had a reasonable way to opt out of making that transaction.  I could have just decided not to.  There’s no threat or anything like that.  Further, had I explicitly said I will not buy the guitar, then it wouldn’t have happened like if my dealer had called me and said, “I’d like to sell you a Stratocaster.  Would you like to buy it?” and I say, “No,” well my no means no, and then the transaction wouldn’t have occurred.  And finally, when I give the dealer the money, they have to send me the guitar in response so if I give them the money, they never send it to me, I didn’t consent to that transaction and I can sue them for fraud or so on.  They’re required to hold up their end of the bargain.  That’s how a genuine consensual transaction goes.  And if you lose any of those kinds of conditions, it’s no longer consensual.  If you think about it though, your relationship to government doesn’t have any of those features at all, not just missing one of those but missing all of them.  So there’s no particular act that you have to do to signify consent like if you don’t do this then you do this to signify consent.  Some people say, “Well what about voting?  Don’t I signify consent by voting?”  No, not really because regardless of what you want, if you vote for it, it’s going to happen anyways.  If you don’t vote for it, it’s going to happen anyways.  If you decide not to vote at all, it’s going to happen anyways.  Your vote doesn’t make a difference.  You vote has a vanishingly small chance of having any effect in any electoral outcome so it doesn’t seem like you have any sort of autonomous control over that.  It doesn’t look like what happens when you say buy a sandwich or buy a guitar where you say I want it and then you get it.  

Further, you have a reasonable way of opting out of most transactions but you don’t when it comes to government.  It’s not like you can say, “Well, I just don’t feel like playing by the rules.”  The government then says, “Okay.  Well then we’re going to force you to do anyways.  If you don’t like it, you can go die,” basically.  So some people say you tacitly consent to government because you decide to continue living in a particular place so therefore you kind of tacitly consent to the idea that you’re willing to put up with the rules there.  And there’s something intuitive about this, something intuitively appealing.  So imagine we’re all at a party together and I say, “Okay, here’s the deal.  At the end of this party, you all have to help me clean up the mess that we make.  And if you don’t like that, leave right now.”  Well if you continue to work there and continue to like be at the party, it seems like you have agreed to clean up at the end.  Now is that what’s happening with government?  It doesn’t really look like that.  It looks like governments have claimed all the livable land in the entire world like you can’t even more to Antarctica if you want to because they forbid you from doing that.  So the idea is well, if you like it, you can live here.  If you don’t like it, you can leave which just means going to another government with very similar rules or you can go live in the ocean which means you drown to death.  So David Hume jokes about this.  He says this is kind of like imagine you’ve been kidnapped like at night and you wake up and you’re on a ship.  And then captain says, “Around here, I’m the boss.  If you don’t like my rules, you’re free to leave anytime.”  You look over the side of the ship, “You mean I can jump in the ocean and die?” He says, “Yeah.  You can leave whenever you want.”  Well when you remain on the ship, it doesn’t look like you’ve tacitly consented to the captain’s rule.  It doesn’t seem really possible.  And suppose like there’s that captain and there’s 30 other captains with almost identical ships.  Now you might decide to hop from one ship to another if you’re lucky.  In a sense, you pick one ship over the other 29 in that case but you haven’t really consented to be on a ship in the first place because your choice is live in a ship or die.  That’d be like equivalent to me saying like I’m kidnapped by 30 women and they say “You will marry one of us or we’ll kill you but you get to pick which one.”  But when I agree to marry this one and not the other one, I don’t really agree to be married.   So it doesn’t look like it’s genuinely consensual.  Further, when you actively dissent, the government really doesn’t care.  For them, your no doesn’t mean no.  Your no means yes.  So imagine you’ve been pulled over and the cop says, “Looks like you’ve a lot of smoke in your car.  Have you been smoking marijuana?”  “Yes I have.”  “Well you know marijuana is illegal.  I’m going to throw you in jail for that.”  You can’t say, “Oh no.  You don’t understand.  I dissent from the marijuana law.”  “Oh I’m sorry, sir.  You’re free to go on your way.”  Or you’re passing your taxes at the end of the year, some people think it doesn’t work.  You can’t say, “No.  I’m not going to pass in taxes this year.  I just disagree with tax laws.”  They don’t care.  They’ll do it anyways.  So this is unlike a genuine transaction or consensual transaction where when you dissent from something, when you say no, it doesn’t happen.  With the government, you say no, it happens anyways.  

Finally, in a genuinely consensual relationship, remember when you transact you each have to do your part of the bargain.  If I give money to the guitar dealer, he has to send me a guitar in response or I didn’t consent to that transaction.  It turns out the government doesn’t think it owes you that.  So you have to pay taxes, you have to obey and do these other things but the Supreme Court has multiple times ruled that government does not owe you in particular protection.  There’ve been Supreme Court cases where somebody’s called the cops, the cops don’t show up, the person gets beaten or raped or worse, and then people sued the government saying they didn’t hold up their end of the bargain, and he Supreme Court says, “No.  The government doesn’t owe protection to any individual person.  It just owes a general protection to people in general.”  So looks like the relationship with the government isn’t consensual at all.  So this theory, the consent theory even though it’s really popular, it just doesn’t work.  Our relationship with government doesn’t appear to be consensual.  

So then the question is are there any other kind of theories of government authority that could explain why government has authority if this one doesn’t?  And I’m not going to go through all those now but I would invite you to look into those theories.  Nevertheless, the typical philosopher now thinks “Look we spent 2500 at least since Plato trying to come up with a theory of government authority.  It looks like none of them works.”  So the best view probably is just that government doesn’t have authority.  That doesn’t necessarily mean we should get rid of government, maybe it’s a useful thing to have, and it’s useful to allow some people to create rules and enforce them, but it might mean that none of us have an actual obligation to obey those rules.  

Question: Okay, so you said that we don’t have an obligation to I guess follow the rules set by the state so then could that go the other way and do we maybe, as long as we’re able to get away with it, have an obligation not to follow the rules set by the state?”

Brennan: Yeah, that’s a great question.  And it’s a hard question.  So you’re talking about getting away with it.  And that’s important because imagine that there’s a person committing a bunch of injustice and you could maybe fight that person back but you’ll get killed in the process.  We would normally think you’re obligated to fight back because you’d be under duress like the fact you could be hurt seems to be a problem.  On the other hand, if you could get away with it, then we would normally think it’s at least permissible to and perhaps in some cases obligatory to.  I mean if you could easily stop injustice from happening by pressing a button at no cost to yourself, it seems like you should, not just that you may but you should.  So I’m glad you asked that question because you’re bringing up an implication, have an unnoticed implication of the lack of government authority.  It’s going to mean something like when governments are committing severe injustice, it’s at least permissible for you to resist it, and it might even be obligatory if you can do so easily.

Public Policy