I’ve been meaning to post on state legitimacy for a while now. Our symposium on Michael Huemer’s fine book seems like as good a reason to do this as any. So here goes.

Many philosophers who talk about legitimacy understand legitimacy in a way that is implausible. Most understand legitimacy as consisting of either the right to be obeyed and the right to enforce the law, or (weaker) as only the right to enforce. [1]

In this simple form, neither conception will do. They lead to at least two problems. I will focus here on the weaker conception since what it is true of it will also be true of the stronger view.

Problem #1: A Dilemma

Suppose a legitimate really does have the permission to coercively impose all the laws on its subjects. This view leads to a dilemma. We face one horn of the dilemma if states at least somewhat like the ones we live among can be legitimate. For in that case everything such a (imaginable) state would do would be permissible. But such a state will inevitably be occupied and run by people that are fallible (not to mention corruptible, whatever that may mean). This means that such a state will end up doing things that are under ordinary circumstances unjust.

If the state is legitimate, then it will be permitted to do these otherwise unjust things. And if it is permitted to do them, then it cannot be wrong for it to do them. And if it is not wrong for the state to do these things, then its doing them cannot be unjust. It follows, then, that this conception of legitimacy makes it impossible for a legitimate state to commit an injustice, pass an unjust law, or otherwise do wrong. It also follows that subjects of a legitimate state cannot have rights that their state could violate. This is ridiculous.

Suppose, then, that we accept what is obviously true: all existing states occasionally do things that are morally wrong, unjust, and otherwise regrettable. This makes us face the other horn of the dilemma. For according to the present conception of legitimacy it follows from this basic observation that no actual state can be legitimate. After all, any such state will commit injustices. And if a legitimate state has the permission to use coercion enforcing all its laws, any such state will not be legitimate.

But surely a standard for legitimacy is too demanding if it renders states illegitimate merely for being a human creation, run by human beings. If this is what legitimacy means, then saying that states are illegitimate is not very interesting.

Problem #2: Narrowing the gap between justice and legitimacy

On either horn of the above dilemma, we end up equating a state’s legitimacy with the justification of its policies, laws, and actions. To be a legitimate state is, on that view, to be a state that is justified in undertaking its activities.

This brings us to the second problem. Such a view narrows the distance between judgments of a state’s legitimacy and justification. This is, as A. John Simmons has showed in perhaps the most important article published on this topic, a problem. These judgments track significant and different dimensions of moral evaluation. Justice concerns the content of individual laws. Legitimacy concerns the standing of the institution issuing them. Showing that everything a state does is justified does not suffice for showing that it is legitimate. And showing that a state is legitimate cannot be sufficient to show that all its activities are permissible.

By reducing the gap between justification and legitimacy, we risk losing sight of one of these dimensions. We might overlook the importance of evaluating laws on their specific merits (as many who defend an obligation to obey the law tend to do). Or we might overlook that a state’s right to rule is not proportional to the justice of its laws (as many public reason theorists who equate legitimacy with the justifiability of laws tend to do).

One thing I like about Huemer’s book is that it offers a nice improvement over this sorry state of affairs. Here is how Huemer defines legitimacy:

the right, on the part of a government, to make certain sorts of laws and enforce them by coercion against the members of its society – in short, the right to rule. (5)

For Huemer a state is legitimate if it is morally justified (permitted) to issue and enforce at least some of a state’s laws. This is better because it allows that a state could be legitimate and still not be justified to do everything it does. That is, Huemer allows that a legitimate state can have the right to rule and yet do things that are, quite simply, wrong. This is an important insight.

But while this conception of legitimacy is better than the one philosophers usually adopt, it also undercuts Huemer’s argument. Consider the following list Huemer offers (pp. 95-6). It includes nine types of laws that states typically undertake:

1. Laws designed to protect citizens’ rights
2. Policies designed to provide public goods
3. Paternalistic laws
4. Moralistic laws
5. Policies designed to aid the poor
6. Rent-seeking policies
7. Laws designed to secure the state’s monopoly and promote its power and wealth
8. Policies designed to promote other things that are regarded as good in general, including education, art, etc.
9. Laws and policies that seem motivated by emotion, such as limits to immigration and bans on gay marriage

Huemer thinks that only laws (1) and (2) and possibly (7) are justified. I suppose many people would think that (5) should be included as well, although Huemer has interesting objections here. No matter – our concern is Huemer’s argument for anarchism. Here’s what Huemer writes shortly after presenting the list above:

If the range of coercive actions that the state is actually entitled to take is only a small fraction of what it is generally thought to be entitled to do and of what the state in fact does, then I think the state does not truly have legitimate authority. (p. 98)

But this simply does not follow. If state legitimacy entails only the permission to enforce some of the state’s laws, then we cannot conclude that states that undertake (1) through (9) are illegitimate. It might be that some of these classes of laws are more relevant to legitimacy than others. Perhaps a state that is really good at (1) and (2) can survive some unjustified laws in the other classes. Perhaps the injustices must not just be many but severe. Perhaps some other condition is to be met. We simply do not know.

So here’s the point. Legitimacy is the right to rule. And like many rights, that right will give the state (if it has it) a right to do wrong. That is, a state’s right to rule is consistent with (some of) its activities being unjustified. The most important question therefore is precisely what activities are relevant to judgments of legitimacy. A book arguing for the illegitimacy of all states must answer this question. Huemer here does better than most. But he still does not do good enough.

[1] Here’s one representative example. In his Philosophy and Public Affairs article “Liberalism, Samaritanism, and Political Legitimacy” Christopher Wellman writes: “An account of political legitimacy explains why [state] coercion is permissible. In doing so, it explains why the state has a right to coerce its citizens and, correlatively, why its citizens have no right to be free from this coercion.” (p. 211-2)