SOME CONCEPTUAL DISTINCTIONS

You’ve read some of us (in particular, Matt and me) sometimes claiming that certain things are required by justice. A few of our readers have then complained (on other blogs) that if justice requires those things, then this would license totalitarianism, as governments would then have the mission of enforcing those things.

Not so. In this post, I’m going to disambiguate a few claims. I just want to point out that saying that justice requires X doesn’t commit you to saying that a government may impose or enforce X. Justice might require X, but it might be illegitimate for a government to impose X. 

Here are three important moral concepts for political philosophy.

1. Legitimacy
2. Authority
3. Justice

These are not the only three important moral concepts, but they are three of the most central. In this post, I just want to disambiguate these three concepts. (Why bother? In reading some reactions to this blog on other blogs, I see that some non-philosophers often run these together.)

Here’s the standing-on-one-foot summary of this post:

            When talking about governments,

1. Legitimacy has to do with whether a government may enforce rules.
2. Authority has to do with whether certain people have moral duties to obey a government’s rules because the government issued those rules.
3. Justice sets standards for explaining what duties* and rights people have, and for evaluating whether the benefits and burdens of social cooperation are “distributed” properly, such that people get what they are due.

*Note that not all moral duties are duties of justice, but it's hard to explain in the abstract duties are a matter of justice and which aren't. See below.

I put “distributed” in scare quotes because I know some libertarian-types will want to trot out arguments about how there’s no more of a distribution of burdens and benefits than there is a distribution of mates. I assure you that almost no one today who talks about “distributions” thinks that social distributions are equivalent to a mom distributing cake slices. But I’m not going to get into that here.

It’s at least logically possible that justice might require something (call it X), but that it would be illegitimate for a government to enforce or impose X. For instance, imagine God whispers in your ear the following:

1. It is illegitimate to impose a religion on anyone. Religion must always be freely chosen.
2. A society is just only if all members believe the one true religion.

1 is a principle of legitimacy and 2 is a principle of justice. If 1 and 2 are true, then 1 forbids us from imposing or enforcing 2.

 

Now, the long version. This is a bit philosophically dense. You’ve been warned.

Before getting into these terms, let me stipulate some definitions.

1. I understand the government of a society to be a subset of that society which claims a right to issue rules and regulations, which claims a basic monopoly on the right to use force, and which has the effective power to maintain this monopoly. (I don’t mean this to be giving necessary and sufficient conditions.)
2. By the scope of government, I mean the range of issues that fall within a government’s control. So, for instance, if a government may not make decisions about citizens’ religious beliefs, then religion falls outside a government’s scope.
3. By the range of a government, I mean the geographic area and/or number of people that the government considers itself to have the right to rule over.

The concept of legitimacy has to do with the use of force. A government has legitimacy over a range within its scope if and only if it is morally permissible for that government to use violence and threats of violence (i.e., coercion) to enforce compliance with its rules. (This leaves open what kinds of violence it can use under what circumstances.) Some philosophers think that only “constitutional essentials” can be evaluated as legitimate or illegitimate. Others think every single decision a government makes can be considered legitimate or illegitimate. Some, such as Gerry Gaus, use the concept of legitimacy to evaluate every act of coercion, including those that occur between private citizens.

So, for instance, the tacit consent theory of legitimacy holds that governments are legitimate just in case citizens tacitly consent to them. The best results theory of legitimacy holds that forms of government are legitimate just in case those forms tends to perform better than other forms. 

The concept of authority has to do with whether citizens have moral obligations to obey a government’s rules. A government has authority (over a range within its scope) if and only if when the government issues a rule, this creates at least a prima facie obligation for people within that range to obey the rule. So, for instance, the question of whether citizens have a duty to obey the law is a question of whether governments have authority.

Note that when a government (or anyone else) has authority over you, the government’s commands/laws/rules create obligations. So, for instance, I have a moral duty not to kill Matt Zwolinski. This duty exists independently of the fact that the US government and Californian government forbid me from killing him. For the government to have authority, it must create an additional moral reason for me not to kill him. Imagine that the US government lacked authority. I would still have a duty not to kill Matt, and by observing this duty, I would satisfy the law, but the fact that it is a law would be morally irrelevant. However, if the government has authority when it issues some law, then the fact that it is a law is itself a moral reason to do what the law requires.

Philosophers didn’t used to separate authority and legitimacy, but it is now commonplace to do so. This is helpful, because it allows us to explore new intellectual territory. You could at least imagine a political philosophy which holds that some states have legitimacy but not authority, or which holds that some states have authority but not legitimacy.

The concept of justice is harder. Justice is about giving people their due. We can talk about whether individual people treat each other justly. So, for instance, we can talk about whether it is unjust for me not to give a friend what she deserves.

However, most philosophers think we can also talk about societies, governments, and the basic structures of societies being just or unjust. The basic structure of a society consists of a society’s institutions. (This is too short a characterization, but it will do here.) If we’re evaluating whether a basic structure is just, we’re asking whether the way it assigns duties and rights properly, and whether the basic structure distributes the benefits and burdens of social cooperation properly.

One big problem is how to demarcate issues of justice from other moral issues. Not everything that makes a society (or person) good or admirable is a matter of justice. Not everything that’s wrong is a matter of injustice. Justice is just one piece of morality.

The Lesson:

Since we’ve disambiguated justice from legitimacy and authority, it’s worth noting here that even if X is just, it does not follow that a government may enforce or command X. Many political philosophers, especially those of a liberal bent, hold that there are strong barriers to imposing or enforcing rules. For instance, according to the Liberal Principle of Legitimacy (a principle espoused by a wide range of liberal political philosophers), it is morally permissible to force reasonable people to abide by a rule only if those reasonable people have conclusion reasons for obeying that rule. (Notice I wrote “only if”, not “if and only if”.) There’s a lot packed into that statement. But one possible implication of it is that sometimes justice might require that we do X, but it will be illegitimate for any government to actually try to impose X on anyone. Thus, it may be possible that, for example, a certain distribution of goods is required by justice, but that no government may enforce or try to create that distribution of goods.