Michael Huemer’s new book, The Problem of Political Authority, defends two big theses. The first is that states lack political authority, and the second is that anarchy is preferable to the state. There is a lot here to consider. I have not digested it all, and I expect that some of my reactions are too hasty or based on misreadings. The book is thoughtful, smart, well-argued, and much of it is correct. It is also well-written, and it could be used in upper-division undergraduate courses, as well as graduate seminars. As I said, my remarks are based on a first impression, so much that I say may need to be modified or retracted.

I’ll focus on the things with which I disagree, even if I agree with a lot and have, in fact, defended versions of some of MH’s theses (see my Essay on the Modern State, CUP 1998). The errors I think MH makes are common to contemporary Anglo-American political philosophy. States and governments are not characterized well, and the discussion is rather ahistorical. It also seems as if state (or government) and anarchy are thought together to exhaust all forms of political organization. I’ll start my critical remarks by examining MH’s framing of the important questions, concentrating on Part I of the book. I haven’t finished reading Part II, so I shan’t say much about it yet – except that it can’t be right! (I’ll say more later this week.)

“Modern states stand in need of an account of political legitimacy because modern states commonly coerce and harm individuals for reasons that woul d be viewed as inadequate for any nongovernmental agent.” (pp. 10-11)

I largely agree, though as we shall see, I think MH’s preoccupation with coercion –with a particular conception of “coercion” – blinds him to certain aspects of states that call for a more careful treatment.

MH says in the opening sentence of the Preface that “the foundational problem of political philosophy: the problem of accounting for the authority of government.” (p. xxvii) I don’t think this is what he thinks or what he ought to think as it is rather statist view of political philosophy. I think his real view ought to be that political philosophy is first of all the study and evaluation of how political society ought to be organized, a study which should pay careful attention to the constraints on the use of power.

Do states (or governments) have “political authority”? That depends on what that is. Quite surprisingly, MH’s analyses of concepts and his framing of the questions seem to be the weakest part of the book. “Political authority… is the hypothesized moral property in virtue of which governments may coerce people in certain ways not permitted to anyone else and in virtue of which citizens must obey governments in situations in which they would not be obligated to obey anyone else.” (p. 5) Readers familiar with classical thinkers like Hobbes and Kant, or contemporary thinkers like Hart and Raz will be surprised to see authority explicated mainly in terms of justified coercion. Hobbes’ conception of authority, for instance, is more complex. He says that “Law in generall, is not Counsell, but Command… addressed to one formerly obliged to obey him [who commands]”, where command is “where a man saith, Doe this, or Doe not this, without expecting other reason than the Will of him that sayeth it.” (Leviathan, ch. xxvi, and ch. xxv). So the fact that this is a genuine law issued by a legitimate ruler is a reason for me to obey. Raz’s view is that it is a preemptive reason (I assume readers are generally familiar with Raz’s work). Political and legal authority on these sorts of views consists in a power to create obligations and (preemptive) reasons. The power to coerce is supplementary. In my view a power to coerce is not essential to states. Something could be a state and not coerce. Image a state where all the laws are both good and just, and all the subjects of the laws informed and rational. Suppose the state has authority in the sense that Hobbes and Raz seek to explicate. The subjects, being informed and rational, comply with the laws. Sanctions for disobedience are not needed. Here is a state without coercion. (More of course needs to be said, and I say some of it in my “State Coercion and Force”, Social Philosophy & Policy 29 (January 2012).)

MH says that authority has “two aspects”. The first is “political legitimacy”, which is the right to rule (the right to make and enforce laws). He recognizes (note 3) that his stipulated use of ‘authority’ and ‘legitimacy” differs from those of others, listing works by Simmons, Edmundson, and Estlund. The real list is much longer. When reading the book, it is very important to remember that ‘political legitimacy’ seems to mean that the bearer has the right to rule, that is, the power and right to make laws and enforce them, as this may not be what many understand by ‘political legitimacy’. Ordinarily we might say that if a state is legitimate, it has the right to rule; legitimacy is a status which confers certain rights. (My present understanding of legitimacy is different from that of my book and is presented here: “State Legitimacy and Social Order”, in Political Legitimization without Morality, ed. Jörg Kühnelt (Springer, 2008), pp. 15-32.) The second aspect of authority according to MH is “political obligation”, namely the obligation of citizens to obey their government. “If a government has ‘authority’, then… the government has the right to rule, and the citizens have the obligation to obey.” (p. 6)

Several pages later, these concepts are refined (pp. 12-3). A number of “principles” are said to be “implicit in the ordinary conception of the authority of government; this is what defenders of authority would like to defend. The additional claims will be familiar to students of contemporary political authority, especially of Hart, Raz, L. Green, and Simmons: generality, particularity, content-independence, comprehensiveness, supremacy. I think these claims are largely present at the founding of modern political philosophy, in the work of Hobbes.  This additional analysis is helpful. What MH wants to show is that states or government don’t have the expansive or sweeping kind of “political authority” which includes these five elements. And he is right; I agree with him, as do many contemporary political philosophers. My own view uses “principles” like these to provide an analysis of sovereignty, which I think is the form of authority claimed by modern states.

I think it a fault of the book that it does not take seriously the claims of state to authority (in Hobbes and Raz’s sense). When one seeks to understand a set of practices or institutions one usually looks at what they are thought or meant to be, to understand them in their own terms. States claim authority in the sense that their directives are meant to be, in Hobbes’ terms, commands that are (preemptive) reasons for obedience on the part of citizens and other subjects. We may find the claim implausible – libertarians and especially anarchists find it ludicrous – but the claim is essential to understanding what kind of organizations or institutions states are meant to be. More importantly perhaps, the best defenses of a state’s powers to coerce are likely to go through its authority. Suppose the (Hobbes-Raz) authority of a state is justified; then that state will normally be permitted to coerce those who do not comply with its directives; the power to coerce is justified through the authority. MH does not seem to consider this. Many other political thinkers don’t either. I suppose the Hobbes-Raz conception of authority is so implausible to them – “I have a (preemptive) reason to do something because the state told me to do so! What?!” – that it’s either not worth discussing or it is not even visible. Still, it is important to consider that coercion may be secondary to authority (in the Hobbes-Raz sense).

“The need for an account of political legitimacy [in MH’s sense] arises from the moral significance of coercion and from the coercive nature of government.” (p. 8) Yes, and I’d add, for other reasons too. MH and most libertarians are single-mindedly concerned with coercion. But what is coercion? Some concepts are more difficult to explicate or characterize than others. Artificial ones like Pareto-superiority are easy to define. Coercion, as is well known, is very hard to characterize precisely. MH says that coercion is “a person’s use of or threat to use physical force against another person.” (p. 8) So on his view if I threaten you with suspension from our club if you do not comply with the rules, I do not coerce you. I’d add another example: if a government threatens you with a fine if you don’t respect the parking rules it does not coerce you on MH’s view, but I need to wait to consider this important example.

MH adds, “I use ‘physical force’ and ‘violence’ interchangeably.” This is really odd. Suppose I want you to leave the room, and I both lack authority to command you to leave (in the Hobbes-Raz sense) and I am not a friend who can so request. I might threaten you with a fine if you don’t leave, I might push you out the door being considerably stronger than you, or I might punch you and throw out the door (or window). The last alone I consider violence; the second is a kind of force; and the first I think of coercion. Threatening force or violence is also coercion. I should have thought that these understandings were commonplace. I am not sure why ‘physical force” and ‘violence’ need to be used interchangeably when the phenomena are so different; in one case bones are broken, in the other not. And surely one can coerce without threatening to use force or violence. I’m missing something here. Note something rather odd. If we accept MH’s peculiar understanding of coercion, many acts of threatening bad consequences for disobedience cease to be coercive. I’d have thought that much that governments do (e.g., threatening fines) was coercive. If this analysis is accepted, states are considerably less coercive than we had thought, a surprising result for an anti-statist tract! As we’ll see in a minute, MH does not think that his analysis will render the government’s threat of fines non-coercive.

The notion of coercion is pulled even further away from our ordinary understandings: “in my sense, A might coerce B by physically injuring B, whether or not A influences B’s behavior.” This is odd. I break your bones for the fun of it, and I have coerced you. (Surely unintentional harms are not meant to be categorized as coercive, so we should be careful of reading too much into this possibly casual statement.)  “Coercion” here is being fashioned in unusual ways, and one has to read the book reminding oneself of this.

What is the motivation for this peculiar regimenting of one of the most important concepts of the book? “The ordinary concept of coercion is useful in many contexts; nevertheless, I have introduced a stipulative definition because doing so enables consideration of some important and interesting arguments regarding political authority while avoiding unnecessary semantic debates.” (p. 9) In a revealing note to this sentence MH refers to a well-known argument by Bill Edmundson “that law is not coercive in the ordinary sense.” MH adds that his “technical usage of ‘coercion’ is designed to avoid Edmundson’s argument while retaining the moral presumption against coercion.” It’s not clear this is the way one should want to “avoid” the arguments of one’s opponents! I can’t understand why stretching an ordinary concept, one central to the subject of the book, is helpful. Readers not only have to remember that coercion in MH’s sense involves the threat of force or violence (which are interchangeable), but that injuring someone is coercion even if no threat is made. There are important differences between threatening a fine, deploying force, and breaking people’s bones. I don’t see what is lost by acknowledging these distinctions or what is gained by extinguishing them.

I may be making too big a deal here of MH’s stipulative characterizations, for it is clear what picture is motivating him. “Government is a coercive institution.” (p. 9) This is the most important fact about government (or the state). It commands (so to speak) all of our attention. MH does not adopt a theory of law like that of John Austin, who made the existence of a sanction part one of the existence condition of a law. However, he thinks that coercion is central to states. MH says that “Generally speaking, when the state makes a law, the law carries with it a punishment to be imposed upon violators.” He recognizes some of the many exceptions to this generalization and does not claim that all violations need be sanctioned. But sanctions – he uses the term ‘punishments’ – are crucial. This is a common view in contemporary Anglo-American political philosophy, shared not only by most libertarians but also by Rawls, Dworkin, Nagel, and many others. (My essay, cited above, is an attack on this general view. One of the cited exceptions to this view of sanctions are constitutions which are not enforced by sanctions. Anarchists obsessed by coercion should spend more time reflecting on constitutions, or Hart’s rule of recognition for that matter.)

Suppose we agree with this claim? I don’t think that states necessarily are coercive, and the quick argument I gave above in a parenthetical comment explains why. But suppose we agree with MH. Why equate force and violence? MH tells us: “Direct physical violence is rarely used as a punishment [any more?]. Nevertheless, violence plays a crucial role in the system, because without the threat of violence, lawbreakers could simply choose not to suffer punishment.” This is a crucial argument; without it states turn out to be much less “coercive” than we thought. How does it go? You violate a rule of the road and are convicted and ordered to pay a fine; you don’t pay and your disobedience triggers an additional sanction, perhaps revocation of your license to drive; you continue to drive and are ordered to prison. “As these examples illustrate, commands are often enforced with threats to issue further commands, yet that cannot be all there is to it. At the end of the chain must come a threat that the violator literally cannot defy. The system as a whole must be anchored by a nonvoluntary intervention, a harm that the state can impose regardless of the individual’s choices… The anchor is provided by physical force… Thus, the system is founded on intentional, harmful coercion.” (pp. 9-10)

Is this argument sound? In the article cited above I spend some time analyzing arguments of this kind (“At the end of the chain…”, or more commonly, “Ultimately…” or “It all comes down to…”), and I refer the interested reader to that essay (as well as the works cited therein, including Edmundson’s book). Consider again my hypothetical case of a non-coercive state, one that uses no force or violence. It seems to be coherent, granting that it is wildly unrealistic. We are not the kind of being described in the example, and our institutions are quite different. Suppose instead we live in a state that is reasonably just, whose institutions are reasonably efficient, and one to which we are attached in various familiar ways (e.g., it is our homeland). It will be the case on MH’s view as well as my own that we won’t have (preemptive) reasons – he would say moral obligations – to obey each and every law that applies to us, and certainly not because each is a (genuine) law. Nevertheless, there will be a lot of compliance with the law. Now why would a state like this have to depend on “a threat the violator literally cannot defy”? Most people are obeying most laws. (MH concedes such a possibility later in the book: “There might still be good reasons to obey most laws”, p. 137.) So what if some don’t pay their parking fines or continue to drive when their license has been suspended? The system will collapse if a large enough number disobey and if this encourages greater disobedience. But suppose that the non-compliers don’t reach this threshold. Must every law still be backed up by a chain of directives the last of which “anchors” the system with “physical force”? I don’t see why. There seem to be foundationalist metaphors and models lurking here, and they should be exposed and imprisoned. It’s not clear why political or legal systems like states need to be “anchored” in violence. Some states are, but it’s not clear all states must be.

I agree with much that MH says. He claims “that one may break the law when what the law commands is not independently morally required and no serious negative consequence will result.” (p. 85) That will be true of many if not of most people in most states; officials will be obvious exceptions. Suppose states lack the authority they claim, that is, they don’t possess the right to make laws and to enforce them. “If there is no authority, does it follow that we ought to abolish all governments? No. The absence of authority means, roughly, that individuals are not obligated to obey the law merely because it is the law and/or that agents are not entitled to coerce others merely because they are agents of the state. There might still be good reasons to obey most laws, and agents of the state might still have adequate reasons for engaging in enough coercive action to maintain a state. If the arguments of the preceding chapters are correct, the circumstances and purposes that would justify coercion on the part on the part of the state are just the circumstances and purposes that would justify coercion on the part of private agents.” (p. 137) This is largely right. MH also concludes, “If there is no political authority, then the vast majority of laws are unjust, because they deploy coercion against individuals without justification.” (p. 138) This is too strong, but I’d have to consider the details of MH’s evaluation of a number of traditional defenses of state power to say why much state action might be justified even if states lacked the authority they claim. (But see the more moderate conclusion of ch. 5, p. 100.)

To summarize, I think the book suffers from a poor analysis of states or government (the two terms are in fact used interchangeably, something it is not possible to do in most non-American cultures). Anarchists, I should have thought, need a better appreciation of their adversary. Also needed is a better understanding of the multiple ways in which states maintain social control. It’s more than force and violence – it’s certainly not “force and violence all the way down”. Think of the sudden collapse of the repressive Ceausescu regime in Romania or the Shah of Iran’s regime. Think of the importance of “opinion” (cf. Hume); consensus and acquiescence can be crucial in maintaining a state. And in the years to come, we’ll come to appreciate the extraordinary new methods of surveillance now being developed and deployed in countries like ours (e.g., cameras and face-recognition software). Force and violence are only part of the story behind state dominance.

Attention to the multiple ways in which states seek control – and must seek control given that force and violence are not enough – will point to real limitations on state power. At any time there are many things that states, even the most powerful, cannot do. For instances, the American state is exceptional in that it cannot disarm its populace, as virtually every other state in the world has done. That is a serious limit on the power of the American state.

I don’t think MH takes states with the seriousness than he should given his ambitious project. I don’t think he engages with much of the literature, especially that coming out of the philosophy of law (e.g., Hart, Raz, Edmundson). These are reactions to Part I. I’ll have some reactions to Part II. Indeed I already “know” what it will be wrong (!), but I know that my expectations may well be mistaken. If the argument of Part II fails, and we are convinced that states are here to stay for a while longer, then we may look more kindly on them, even if we don’t believe the outlandish tales their defenders recount.

 

[A small note. I mentioned in passing that MH asks whether we have moral obligations to obey the law (because it is the law). By contrast, we might follow Hobbes and Raz in asking whether we have (preemptive) reasons to obey. Many if not most contemporary philosophers follow MH in focusing on moral obligations, so he is not an outlier on this matter. But if one thinks as I do that the law is meant to be efficacious, specifically action-guiding, then the fact that laws are or involve moral obligations may not be sufficient to move us to action if moral internalism is not true, if we do not always have reasons (or reasons of the right kind) to do as we are morally obligated to do. Hobbes focuses on reasons for action as he wants the law to move individuals, even those whose moral convictions leave them to disobey. The emphasis on reasons for action makes the case for the state harder.]