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Is Democracy Sufficient for Political Obligation?

Published online by Cambridge University Press:  01 July 2015

Kevin Walton
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Abstract

This paper examines the apparently widespread belief that the democratic pedigree of a state implies a moral obligation to obey its laws. The analysis focuses on the work of Ronald Dworkin, who is, perhaps surprisingly, alone among theorists of democracy in claiming that those whom the law addresses are morally bound to obey it whenever it is democratic. From Dworkin’s expansive conception of democracy, political obligation follows. But democracy should not be construed so widely. Rather, it ought to be conceived more narrowly, such that, as other theorists concede, it cannot be more than part of a case for a moral obligation to obey the law. Hence, belief in the sufficiency of democracy for political obligation, notwithstanding its ostensible popularity, has yet to be justified.

Keywords

moral obligation to obey lawDworkin on democracypolitical obligation
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 28 , Issue 2 , July 2015 , pp. 425 - 442
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2015 

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References

1. For a similar observation, see Murphy, Liam, What Makes Law: An Introduction to the Philosophy of Law (Cambridge: Cambridge University Press, 2014)CrossRefGoogle Scholar at 123. For a description of such thinking as “commonsense”, see Eric A Posner, “Do States Have a Moral Obligation to Obey International Law?” (2003) 55:5 Stan L Rev 1901 at 1913. The obligation that these people seem to have in mind is, I assume, not only content-independent, but also restricted to laws that are (i) susceptible to obedience, which means that they impose requirements, and (ii) genuine products of democracy. Depending on the impact of this restriction, the obligation might lack the generality on which many theorists insist. On this supposed condition and others, see Kevin Walton, “The Particularities of Legitimacy: John Simmons on Political Obligation” (2013) 26:1 Ratio Juris 1.

2. I make no technical distinction between obligations and duties, but treat them as equivalent. For discussion, see John Simmons, A, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979)Google Scholar at 11-16 [Simmons, Moral Principles and Political Obligations]; John Simmons, A, Political Philosophy (New York: Oxford University Press, 2008)Google Scholar at 43 [Simmons, Political Philosophy].

3. The consistency of this claim with a belief that something else (but, of course, not just anything else) is also sufficient for political obligation will depend on its particulars. Although the philosopher who features most prominently in the present paper does not, another philosopher—without self-contradiction—might endorse this claim about democracy and at the same time the claim, for instance, that the mere fact of consent establishes a moral obligation to obey the law. For recognition that nothing in the concept of political obligation necessitates “singularity in ground” and thereby precludes such over-determination, see Simmons, Moral Principles and Political Obligations, supra note 2 at 35.

4. On this category, see John Simmons, A, “Political Obligation and Authority” in Simon, Robert L, ed, The Blackwell Guide to Social and Political Philosophy (Oxford: Blackwell, 2002)Google Scholar 17 at 24 [Simmons, “Political Obligation and Authority”]; John Simmons, A“The Duty to Obey and our Natural Moral Duties”Wellman, Christopher Heath & John Simmons, A, Is There a Duty to Obey the Law? (Cambridge: Cambridge University Press, 2005)Google Scholar 91 at 102 [Simmons, “The Duty to Obey and our Natural Moral Duties”]; Simmons, Political Philosophy, supra note 2 at 48.

5. I thus take for granted that the meaning of democracy matters. On the “eliminativist” alternative, which I simply discount for now, see Murphy, supra note 1 at 63-66. For discussion, see Dworkin, Ronald, Justice for Hedgehogs (Cambridge: Harvard University Press, 2011)Google Scholar at 383 [Dworkin, Justice for Hedgehogs].

6. Simmons, Political Philosophy, supra note 2 at 112.

7. See, for instance, Rawls, John, “Legal Obligation and the Duty of Fair Play” in Freeman, Samuel, ed, Collected Papers (Cambridge: Harvard University Press, 1999)Google Scholar 117 at 118–19.

8. On the distinction between these two types of political obligation, see, among others, William A Edmundson, “State of the Art: The Duty to Obey the Law” (2004)10:4 Legal Theory 215 at 217.

9. Simmons, Political Philosophy, supra note 2 at 107.

10. Ibid at 107.

11. Ibid at 44. See also Simmons, Moral Principles and Political Obligations, supra note 2 at 195-97; Simmons, A John, “Philosophical Anarchism” in Justification and Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press, 2001)Google Scholar 102 at 106; Simmons, “Political Obligation and Authority”, supra note 4 at 18-19; A John Simmons, “The Particularity Problem” (2007) 7:1 APA Newsletter on Phil & Law 18 at 19 [Simmons, “The Particularity Problem”].

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13. Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2003)CrossRefGoogle Scholar at 146.

14. Ibid at 147.

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18. Simmons, Political Philosophy, supra note 2 at 112-13.

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21. See Simmons, “Political Obligation and Authority”, supra note 4 at 23; Simmons, “The Duty to Obey and our Natural Moral Duties”, supra note 4 at 99; Simmons, Political Philosophy, supra note 2 at 40-41.

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23. Ibid at 9.

24. See ibid at 6-8.

25. See ibid at 7.

26. For some elaboration, see Walton, supra note 1 at 9-13.

27. I exclude the influential theories of Joshua Cohen and Jürgen Habermas from my survey, since, as David Estlund and Michael Huemer convincingly show, their accounts of “deliberative democracy” are too hypothetical to establish the authority of any actual process of law-making. See Estlund, David, Democratic Authority: A Philosophical Framework (Princeton: Princeton University Press, 2008)Google Scholar at 87-93; Huemer, Michael, The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey (Basingstoke: Palgrave Macmillan, 2013)CrossRefGoogle Scholar at 61-64. See also Murphy, supra note 1 at 125.

28. Singer, supra note 15 at 32.

29. Ibid at 36.

30. Ibid at 42.

31. Ibid at 45.

32. Scott Shapiro, “Authority” inJules Coleman & Scott Shapiro, eds, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) 382 at 437.

33. Ibid at 438.

34. See Christiano, supra note 19.

35. Ibid at 11.

36. See Estlund, supra note 27.

37. Ibid at 17.

38. See ibid at 110.

39. Ibid at 111.

40. Ibid at 112. For a Kantian account of substantive restrictions on democratic authority, see Stilz, Anna, Liberal Loyalty: Freedom, Obligation, and the State (Princeton: Princeton University Press, 2009)CrossRefGoogle Scholar at 92-94.

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43. Ibid at 14.

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45. Ronald Dworkin, “The Partnership Conception of Democracy” (1998) 86:3 Cal L Rev 453 at 457 [Dworkin, “The Partnership Conception of Democracy”]. See also Dworkin, Justice for Hedgehogs, supra note 5 at 366, 382-85.

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50. Ibid at 20. See also Dworkin, “Equality, Democracy, and the Constitution”, supra note 49 at 329.

51. Ibid at 330. See also Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise”, supra note 49 at 20.

52. Dworkin, Ronald, “Liberal Community” in Sovereign Virtue: The Theory and Practice of Equality (Cambridge: Harvard University Press, 2000)Google Scholar 211 at 225 [Dworkin, “Liberal Community”]. See also Dworkin, “Equality, Democracy, and the Constitution”, supra note 49 at 330; Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise”, supra note 49 at 20.

53. Dworkin, “Liberal Community”, supra note 52 at 225-26. See also Dworkin, “Equality, Democracy, and the Constitution”, supra note 49 at 335.

54. Dworkin, “Liberal Community”, supra note 52 at 226. See also Dworkin, “Equality, Democracy, and the Constitution”, supra note 49 at 335.

55. Dworkin, “Liberal Community”, supra note 52 at 226. See also Dworkin, “Equality, Democracy, and the Constitution”, supra note 49 at 335-36; Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise”, supra note 49 at 20.

56. Ibid at 22-23.

57. Dworkin, Ronald, Is Democracy Possible Here? Principles for a New Political Debate (Princeton: Princeton University Press, 2006)Google Scholar at 9-10 [Dworkin, Is Democracy Possible Here?]. See also Dworkin, Ronald, “Introduction: Does Equality Matter?” in Sovereign Virtue: The Theory and Practice of Equality (Cambridge: Harvard University Press, 2000)Google Scholar 1 at 5-6 [Dworkin, “Introduction: Does Equality Matter?”]; Dworkin, Justice for Hedgehogs, supra note 5 at 2.

58. Dworkin, Is Democracy Possible Here?, supra note 57 at 96-97.

59. See Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise”, supra note 49 at 23-24.

60. Dworkin, Ronald, Law’s Empire (London: Fontana, 1986)Google Scholar at 201 [Dworkin, Law’s Empire]. See also Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise”, supra note 49 at 24.

61. Dworkin, Law’s Empire, supra note 60 at 201.

62. Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise”, supra note 49 at 24. See also Dworkin, “Equality, Democracy, and the Constitution”, supra note 49 at 337-38.

63. Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise”, supra note 49 at 24-25. See also Dworkin, “Equality, Democracy, and the Constitution”, supra note 49 at 338-39.

64. Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise”, supra note 49 at 25. See also Dworkin, Law’s Empire, supra note 60 at 200-01; Dworkin, “Equality, Democracy, and the Constitution”, supra note 49 at 339-40.

65. Ibid at 341.

66. Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise”, supra note 49 at 26. See also Dworkin, “Equality, Democracy, and the Constitution”, supra note 49 at 340.

67. On this distinction, see ibid at 336.

68. Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise”, supra note 49 at 24. See also Dworkin, “Equality, Democracy, and the Constitution”, supra note 49 at 337.

69. See Dworkin, Justice for Hedgehogs, supra note 5 at 384. See also Ronald Dworkin, “The Partnership Conception of Democracy”, supra note 45; Dworkin, Is Democracy Possible Here?, supra note 57 at 131.

70. Dworkin, Justice for Hedgehogs, supra note 5 at 321-22. See also Dworkin, Is Democracy Possible Here?, supra note 57 at 95-97.

71. Ibid at 35, 96; Dworkin, Justice for Hedgehogs, supra note 5 at 335-39.

72. See Dworkin, Law’s Empire, supra note 60 at 213-15.

73. On legitimacy and democracy as corresponding matters of degree, see Dworkin, Justice for Hedgehogs, supra note 5 at 384.

74. Dworkin, “Introduction: Does Equality Matter?”, supra note 57 at 1.

75. Dworkin, Justice for Hedgehogs, supra note 5 at 390.

76. On the apparently devastating implications of his theory, see Susanne Sreedhar & Candice Delmas, “State Legitimacy and Political Obligation in Justice for Hedgehogs: The Radical Potential of Dworkinian Dignity” (2010) 90:2 BUL Rev 737. For Dworkin’s more sanguine view, see Dworkin, Justice for Hedgehogs, supra note 5 at 321-23. Compare, however, Dworkin, Is Democracy Possible Here?, supra note 57 at 147, where he observes that contemporary politics in the United States of America “are not only insulting and depressing; they are not even democratic.”

77. Berlin, “Two Concepts of Liberty”, supra note 44 at 214.

78. Jahanbegloo, Ramin, Conversations with Isaiah Berlin (London: Phoenix Press, 2000)Google Scholar at 142.

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80. For a definition, see Rawls, John, Justice as Fairness: A Restatement, ed by Kelly, Erin (Cambridge: Harvard University Press, 2001)Google Scholar at 3.

81. For an excellent summary of Berlin’s (often imprecise) views on this topic, see Crowder, George, Isaiah Berlin: Liberty and Pluralism (Cambridge: Polity, 2004)Google Scholar at 19-20, 116-23, 132-34 [Crowder, Isaiah Berlin: Liberty and Pluralism]. See also Crowder, George, Liberalism and Value Pluralism (London: Continuum, 2002)Google Scholar at 3-4, 45-46 [Crowder, Liberalism and Value Pluralism]; Lukes, Steven, Liberals and Cannibals: The Implications of Diversity (London: Verso, 2003)Google Scholar at 100-06 [Lukes, Liberals and Cannibals].

82. See Crowder, Liberalism and Value Pluralism, supra note 81 at 48-49.

83. See, for instance, Steven Lukes, “Isaiah Berlin: In Conversation with Steven Lukes” (1998) 120 Salmagundi 52 at 101 [Lukes, “Isaiah Berlin: In Conversation with Steven Lukes”].

84. See Berlin, “Two Concepts of Liberty”, supra note 44.

85. On incommensurability as incomparability, see Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986)Google Scholar at 335-45. See also Gray, John, Berlin: An Interpretation of His Thought, with a new introduction by the author (Princeton: Princeton University Press, 2013)Google Scholar at 85-88; Gray, John, Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age (London: Routledge, 1995)CrossRefGoogle Scholar at 69-70; Lukes, Liberals and Cannibals, supra note 81 at 63-64. But contrast Crowder, Liberalism and Value Pluralism, supra note 81 at 49-54.

86. See especially Berlin, “Two Concepts of Liberty”, supra note 44 at 177-78.

87. Isaiah Berlin, “Introduction” in Hardy, supra note 44 at 42.

88. Lukes, “Isaiah Berlin: In Conversation with Steven Lukes”, supra note 83 at 101.

89. On the metaphors of “trade-off” and “sacrifice”, see Lukes, Liberals and Cannibals, supra note 81 at 66-67.

90. Berlin, Isaiah, “My Intellectual Path” in The First and the Last (London: Granta Books, 1999)Google Scholar at 77.

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93. See Dworkin, “Do Values Conflict?”, supra note 92 at 254-55; Dworkin, “Moral Pluralism”, supra note 91 at 113-14; Dworkin, Ronald, “Hart’s Postscript and the Point of Political Philosophy” in Justice in Robes (Cambridge: Harvard University Press, 2006)Google Scholar 140 at 150-54 [Dworkin, “Hart’s Postscript and the Point of Political Philosophy”]; Dworkin, Justice for Hedgehogs, supra note 5 at 166-68.

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95. Dworkin, “Moral Pluralism”, supra note 91 at 113.

96. Crowder, Isaiah Berlin: Liberty and Pluralism, supra note 81 at 131.

97. See, for example, Berlin, “Two Concepts of Liberty” supra note 44 at 212.

98. See Lukes, Steven, “Discussion: Hedgehogs and Foxes” in Lilla, Mark, Dworkin, Ronald & Silvers, Robert, eds, The Legacy of Isaiah Berlin (New York: New York Review Books, 2001)Google Scholar 59 at 61. See also Crowder, Isaiah Berlin: Liberty and Pluralism, supra note 81 at 129-30.

99. See Dworkin, “Do Values Conflict?”, supra note 92 at 259; Dworkin, “Moral Pluralism”, supra note 91 at 106.

100. Dworkin, “Do Values Conflict?”, supra note 92 at 255. See also Dworkin, “Do Liberty and Equality Conflict?”, supra note 94 at 40.

101. Dworkin, “Hart’s Postscript and the Point of Political Philosophy”, supra note 93 at 156.

102. Dworkin, Justice for Hedgehogs, supra note 5 at 7.

103. Dworkin, “Moral Pluralism”, supra note 91 at 112. See also Dworkin, “Do Liberty and Equality Conflict?”, supra note 94 at 53; Dworkin, “Do Values Conflict?”, supra note 92 at 254; Dworkin, Is Democracy Possible Here?, supra note 57 at 69-70; Dworkin, Justice for Hedgehogs, supra note 5 at 4.

104. Dworkin, Ronald, “The Place of Liberty” in Sovereign Virtue: The Theory and Practice of Equality (Cambridge: Harvard University Press, 2000)Google Scholar 120 at 121.

105. Ibid at 122.

106. Ronald Dworkin, “Discussion: Pluralism” in Lilla, Dworkin & Silvers, supra note 98 at 135 [Dworkin, “Discussion: Pluralism”].

107. Dworkin, “Hart’s Postscript and the Point of Political Philosophy”, supra note 93 at 161. See also Dworkin, “Introduction: Does Equality Matter?”, supra note 57 at 4; Dworkin, Is Democracy Possible Here?, supra note 57 at 134; Dworkin, Justice for Hedgehogs, supra note 5 at 350.

108. Dworkin, “Hart’s Postscript and the Point of Political Philosophy”, supra note 93 at 161.

109. Dworkin, “Discussion: Pluralism”, supra note 106 at 135.

110. For more detail, see Walton, Kevin, “Jurisprudential Methodology: Is Pure Interpretation Possible?” in Beltràn, Jordi Ferrer, Moreso, José Juan & Papayannis, Diego M, eds, Neutrality and Theory of Law (Dordrecht: Springer, 2013)Google Scholar 255 at 264-66.

111. Lukes, “Isaiah Berlin: In Conversation with Steven Lukes”, supra note 83 at 92-93.

112. Berlin, “Two Concepts of Liberty”, supra note 44 at 213-14. See also Berlin, Isaiah, “The Pursuit of the Ideal” in Hardy, Henry & Hausheer, Roger, eds, The Proper Study of Mankind: An Anthology of Essays with a foreword by Noel Annan and an introduction by Roger Hausheer (London: Pimlico, 1998)Google Scholar 1 at 11.

113. Berlin, “Two Concepts of Liberty”, supra note 44 at 204.

114. Crowder, Liberalism and Value Pluralism, supra note 81 at 6.

115. The fact that value-pluralism might require incompatible actions in practice does not mean that the theory itself is contradictory.