Monthly Archives: December 2012

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Perry on Powers

Stephen R. Perry, Political Authority and Political Obligation in 2 Oxford Studies In the Philosophy of Law (Leslie Green & Brian Leiter eds., forthcoming 2012) (Univ. of Pennsylvania School of Law, Public Law Reseach Paper No. 12-37, forthcoming) available at SSRN.

A right to rule is the mark of a legitimate state or, put differently, of legitimate political authority. The correlate of this right to rule is a general duty, borne by all within a relevant territory, to obey the law laid down by the state – all of the laws, whatever their content. The right to rule excludes any right on the part of citizens to “pick and choose” which among the laws that apply to them to obey. The duty is a defeasible one, which must yield in case the duty-bearer is so circumstanced that a great evil could be avoided only by disobeying the law’s command. But, extraordinary cases aside, the general duty prevails. Such is the traditional view that this paper wants to reorient.

One problem with the traditional view is that it encourages the assumption that there is an acid test of state legitimacy: is there or is there not a general duty to obey? The legitimacy of political authority is thus tied to the existence of a general duty that there is good reason to doubt. The general duty dignifies silly regulations and fussy requirements that it seems morally innocent to ignore. Moreover, each of the theories that have traditionally been marshaled to justify such a general duty of obedience – gratitude, consent, tacit consent, hypothetical consent, fair play, necessity, expertise, association – come up short. On the traditional view, legitimacy can be established by establishing the general duty, and it can be rejected if the general duty lacks a persuasive ground.

In Perry’s view, the traditional view invites a mistake. Its fixation upon the general duty of obedience misleadingly suggests that this arguably necessary condition for recognizing a right to rule is also a sufficient condition of legitimate political authority. It ignores what Perry calls the “reverse entailment problem,” namely, that a general duty of obedience might prevail independently of the state’s possession and exercise of authority.

David Estlund’s example of the tyrant’s bossy child – whom one ought to obey, but only because if one does not the tyrant will be annoyed and do harm – shows that one might have a duty to obey one who is not in authority.

The traditional view goes wrong because it overlooks or underplays the fact that authority is a moral power. The state’s right to rule (where it exists) consists in a Hohfeldian power instantly to create moral duties, and the citizen’s correlative moral liability to become subject to these duties. The corrective, Perry argues, is to replace the traditional conception of legitimate authority with one that puts moral power (not to be confused with physical force) front and center. This adjustment imposes two, hitherto under-appreciated, constraints upon successful justifications. The first is an prospectivity condition: a successful justification will represent state authority as typically imposing duties instantly, rather than after further conditions are satisfied, such as sufficient compliance. The second is a value-of-intentionality condition: a successful justification will involve establishing the value of the state’s having a moral power to alter instantly the moral position of its citizens.

Perry argues that these conditions have two significant, further implications. The first is that any good argument justifying a state’s claim to legitimate authority must proceed directly rather than indirectly. A direct argument is one that right up front identifies the value that justifies the moral power – as opposed to an indirect one, routed through the general duty to obey. But this points to the second, graver, consequence: the traditional arguments used to establish legitimate political authority, because they are indirect, are misdirected. Even if successful, the traditional arguments can at most establish a general duty to obey, which tends to fudge the further, prospectivity condition that a genuine moral power must meet. These old arguments, and their hybrid variations, pursue an “aggregative” strategy that hopes to construct authority by adding up individuals’ several duties to obey. Aggregative strategies, being indirect, and focused on the authority relation individual by individual, forget to stock up the extra resources needed to meet the value-of-intentionality condition, and they ignore the prospectivity condition.

Perry makes a positive case for what he calls a value-based conception of moral powers generally:

one person A has a power to effect a certain kind of change in the normative situation of another person B if there is reason for regarding actions which A takes with the intention of effecting a change of the relevant kind as in fact effecting such a change, where the justification for so regarding A’s actions is the sufficiency of the value or desirability of enabling A to make this kind of normative change by means of this kind of act. (P.82.)

The value-based conception is designed to respect both the prospectivity and the value-of-intention conditions. Applied to the problem of specifically political/legal authority,

the value-based conception of a moral power is the conceptual core and, perhaps – depending on one’s views about descriptive versus normative jurisprudence – also the moral core both of jurisprudence and of law itself. (P.88.)

Despite the reference to “moral core,” Perry offers this as “a piece of normative-conceptual analysis” rather than a “substantive theory addressed to the justification problem”:

further moral argument is required to determine what kinds of value (if any) will justify A’s possession of such a power, as well as to determine the sufficiency of that value. (P.82.)

Perry does indicate the direction in which a successful substantive theory ought to go. That way is a “task-efficacy theory,” so described by Leslie Green, and pursued most notably by John Finnis. Such a theory will pursue this thought:

The most important function of the state is to accomplish particularly important moral goals that states are uniquely suited, or at least particularly well suited, to achieve on behalf of their subjects by means of the normative instrument of a capacity to impose obligations. (P.10.)

The working-out of a substantive theory of this type is a task the paper leaves for another day.

Perry’s paper is not only a joy to read, it imparts the kind of excitement that only a pathbreaking achievement can. He has, I think, turned an in important corner in a discussion that began with Plato’s Crito. I do have a few misgivings, though. A task-efficacy theory is supposed be capable of satisfying the value-of-intention and prospectivity conditions, but it is not immediately clear why such a theory has that fitness, and would not fall to the same lines of criticism that Perry deploys here to bring down Joseph Raz’s much-discussed “normal justification” thesis. (The normal justification thesis, in fact, looks to be a kind of task-efficacy thesis, where the relevant task is that of improving people’s conformity with reasons that bear on them anyway.)

A more basic worry has to do with Perry’s formulation of his own value-based conception. Presumably, the value of someone’s having a power is derivative from – and not merely “systematic[ally] link[ed to]” (35) – the value of what their exercise of it can be expected to achieve. It isn’t power for power’s sake. But Perry sees things otherwise:

the idea of “sufficient value” which is associated with the value-based conception is, strictly speaking, concerned with the value of the possession by the power-holder of the capacity to intentionally change the normative situation of others, and not with, say, the value of states of affairs that might result from the exercise of that capacity. (P.35.)

That a moral power might have intrinsic value is at least plausible in the case of promising, where there seems to be – as Raz has argued – an intrinsic value in being able to obligate oneself. Suggesting an analogy, Perry writes: “the capacity intentionally to impose obligations on others can also have intrinsic value” (36, n 50). My initial reaction to this surprising claim was a Seinfeldian “Really?”

Notice that the intrinsic value of being able to obligate others is not to be confused with the intrinsic value of having them do one’s bidding. The intrinsic value of having a moral power has got to involve something beyond the intrinsic value of having a power simpliciter. David Estlund describes a trait, which can be called “small-error tolerance,” that distinguishes obeying an authority from merely conforming with what an authority figure happens to demand (Democratic Authority: A Philosophical Framework, 125. Princeton UP, 2008).

If one is indeed subject to an authority possessing a moral power, then one must perform the duties it imposes even where one knows one might better (and harmlessly) serve the powerholder’s objective by doing something different. Of course, because such duties are defeasible, they are always subject to being overridden in case they rest on massive errors. But, according to Estlund, if we are talking about a genuine authority, that means that those genuinely subject to it are morally required to be tolerant of the smaller errors. A successful account of authority must include an account of why small errors must be tolerated even when greater overall value will be (harmlessly) achieved by deviating from what authority has commanded. There has to be some intrinsic value to being small-error-tolerant, and the question is: where might such a value lie? As I said, it seems unlikely that anything about the power-holder could serve: there’s just nothing intrinsically valuable about having or being a boss (pace David Owens, who writes “human beings have an interest in the possession of authority for its own sake, regardless of any further purpose this authority might serve” The Shaping of the Normative Landscape 146. Oxford UP, 2012).

But where else might the needed value lie? My suggestion is that we look to the duty-bearer as the locus of whatever is intrinsically valuable about obedience – or, more precisely, valuable about being small-error tolerant. It might be that such a disposition is valuable as an aspect of sociability, or then again, it may not (cf. my “Political Authority, Moral Powers, and the Intrinsic Value of Obedience,” Oxford Journal of Legal Studies 2010 30: 179-91). In his sketch of a task-efficacy theory, Perry cites the possibility of a variant that “would find intrinsic value in the fact that the possessor of this capacity was democratically elected” (86, italics original, and n 123, citing Thomas Christiano, The Constitution of Equality, 231-59. Oxford UP, 2008). Again–why look to facts about the possessor, rather than the conveyor, of the moral power as the locus of intrinsic value? Other values have to be accommodated as well, such as the moral equality of persons, which seems in tension with the value of having moral power over persons (cf. Bas van der Vossen, 2012, “The Asymmetry of Legitimacy,” Law and Philosophy 31: 565-92). And, as Perry acknowledges, it may turn out that no value is up to the task of underwriting moral powers over others. Hart, whose emphasis on power-conferring rules Perry invokes in his conclusion, thought that the very idea of a “moral legislature” is absurd. Hart’s skepticism presumably would extend to the idea of moral legislators as well. So, the kind of substantive discussion that Perry’s admirable account invites and demands will not be a quick one – but it is surely one that legal theorists need to be having.