Christopher Roberson, "The State as Rational Authority: An Anarchist Justification of Government,"
Oxford Journal of Legal Studies, Vol. 18, No. 4. (Winter, 1998), pp. 617-630.
The State as Rational Authority:
An Anarchist Justification of
Department of Philosophy, Roosevelt University.
Abstract -- Joseph Raz's defence of government is grounded in his 'normal justification thesis'. This thesis justifies the exercise of state authority in just those cases where subjects are more likely to fulfill their duties by obeying the state than by carrying out their own deliberations. I argue that the assumptions underlying this argument are importantly similar to those made by the Enlightenment anarchist philosopher William Godwin. Raz's arguments can supplement Godwin's political theory, producing an argument which, though grounded in anarchist principles, justifies a limited state authority.
Anarchism has not been taken very seriously by political theorists in the last few decades. This is largely because its central goal, the abolition of the state, seems neither practical nor desirable. A theory defined by such a Utopian premise may have some attraction as an intellectual curiosity, but not, presumably, as a subject of serious interest and research.
One exception to this general neglect is the subject of'philosophical anarchism', a position in the debate over political obligation.1 Philosophical anarchists deny the existence of a prima facie obligation to obey the law. This position has a tenuous relation to the tradition of political anarchism: most philosophical anarchists do not seek the abolition of government or hold any other characteristically anarchist views. Indeed, philosophical anarchism would not command much interest in the absence of government, for then there would be no remaining practical significance for the problem of political obligation.
So it might appear that philosophical anarchism has little in common with political anarchism aside from the name. But appearances can mislead. This paper will discuss some important affinities between the work of William Godwin, the first political anarchist, and that of Joseph Raz, a prominent contemporary thinker who is sometimes described as a philosophical anarchist.2 Although Raz argues in favour of government and legal authority, his fundamental assumptions are strikingly (and perhaps unexpectedly) similar to those of Godwin. Raz's arguments can supplement Godwin's political theory, producing an argument grounded in anarchist principles that justifies state authority.
Such a position, of course, runs counter to most people's understanding of the term 'anarchism' - including that of most anarchists. Although my position relies on Godwin's political theory, it does seem odd to propose an anarchist justification of the state. Therefore, I will use the term 'modified anarchism' to refer to the position I develop. This term is not ideal, but it does stress both the theory's basis in the political anarchist tradition and its divergence from the same. Also, it is less cumbersome than a term like 'decentralized individualist communitarianism'.3
2. Godwin's Moral and Political Theory
An anarchist argument in support of government is not as paradoxical as it may sound, for no political anarchist has treated the abolition of government as an end in itself. Abolishing the state was regarded as instrumentally necessary to achieve more fundamental ethical and social principles. These principles, moreover, were widely shared by the major theorists of anarchism (Godwin, Proudhon, and Kropotkin), and were distinctively anarchist principles, not reducible to the principles that ground socialist or liberal theories.4 So it may be reasonable to reject many of the anarchists' specific arguments against the state while retaining their distinctive ethical and social theory. Many of the ends called for by anarchist political theory can be achieved regardless of the existence of the state; some, perhaps, can be better achieved with the state's assistance. This section briefly explains those ends and their role in Godwin's thought.
Godwin's view can be described as a secularized version of some arguments advanced by Dissenting philosophers and theologians.5 In the years after the Restoration, Dissenters were often in the difficult position of trying to defend,
both to themselves and to the English social mainstream, their refusal to adhere to the accepted practices of the Church of England. Their most persuasive arguments relied heavily on appeals to the notion of private judgment, sometimes also called the principle of the informed conscience.
Dissenters argued that to worship in ways other than their consciences dictated would be to put their ultimate faith not in God, but in the religious interpretations of temporal authority. Since human beings are fallible, the forms of state-established worship could be different from or even opposed to what God actually intended. Therefore, they claimed, when the state instituted one church and penalized other religious practices, it was interfering in the relationship between God and the individual worshiper. Better, they claimed, for each person to place his faith in the guidance which God had given him: namely, his rational conscience.
This view could seem dangerously antinomian if not for several important qualifications that Dissenting writers place on it. They held that following one's private judgment is not a matter of simply doing what one wants to do, nor yet what one thinks may be morally right. Properly following one's private judgment with regard to some topic means first taking pains to inform oneself as fully as possible on that topic, and only then doing what one judges to be one's duty. The principle of private judgment does not justify frivolous or careless actions, but only actions taken after painstaking study and careful consideration of all options. When in the throes of doubt or ignorance, it could make sense to delay action or rely on conventional wisdom. Still, once one had acquired the necessary information and determined what one's informed conscience demanded, it would be wrong to act in some other way, even if one's judgment differed from that of one's friends, family or priest.
Some Dissenting philosophers, notably Richard Price, extended this principle beyond religious duty to all moral duty: to surrender one's judgment in any circumstance was to act wrongly.6 Godwin took the further step of explicidy applying the principle of private judgment to the political realm, where it produced a position that holds in suspicion all authority: religious, political, patriarchal. Authorities demand obedience; and obedience will inevitably require one sometimes to act other than according to one's best judgment. (Conditional obedience hardly qualifies as obedience at all.) Consequently, Godwin's ideal was a condition without authorities, in which no one would create impediments to the exercise of private judgment.
If this were as far as Godwin's theory went, then perhaps we would be justified in giving it short shrift. For private judgment, thus described, seems like no more than a kind of autonomy, which has a prominent role in the statist political theories of Rousseau, Kant, and many of their intellectual descendants. These theories' use of autonomy casts into doubt the claim that respect for autonomy necessitates the abolition of government. Robert Paul Wolff tried to make a case
for that claim in the 1970s,7 but with a notable lack of success. His failure was perhaps not surprising when one considers that Kant, the most important theorist of autonomy, saw no conflict at all between autonomy and obedience to authority; in fact, he regarded disobedience to authority as morally wrong in almost all circumstances. Godwin's position, however, is not as vulnerable as WolrFs, because Godwin's 'private judgment' is better suited to the task than is the conception of autonomy that Wolff uses. I attempt to elucidate the differences between these concepts elsewhere,8 and so my discussion here will be brief.
Wolff's argument fails because the Kantian notion of autonomy upon which he relies is inappropriate to the political role in which he puts it. Kantian autonomy is first and foremost a moral concept: it is required in order to qualify as a moral agent. In order to carry out one's duty, one must be autonomous; hence one's first duty, in a sense, is to maintain one's status as an autonomous being. Crucially, though, Kantian autonomy amounts to little more than the capacity for rational deliberation - which is not to say that rational deliberation is a trivial or easily attained goal, but only that it can be had even when one lacks many of the capacities which we often associate with the term 'autonomy'. One can deliberate rationally even when one has no hope of being able to carry out most of the actions that deliberation recommends. As Thomas Hill remarks,
... autonomy itself is not a right but a property of all rational wills ... not by itself implying the wrongness of the specific forms of coercion, manipulation, and control that modern appeals to autonomy typically condemn. The confessed murderer on the gallows, I take it, has forfeited most of his rights to determine his future, but he has not thereby lost his Kantian autonomy.9
As long as one's rationality is intact, and one can make decisions about how one would like to act, one has autonomy in the Kantian sense.
This clarifies how Kant can on the one hand regard autonomy as a crucial foundation of his ethical system and, on the other hand, assert a virtually unqualified duty of obedience to the state. A subject can obey his ruler and still retain his Kantian autonomy to the fullest extent possible. Even arrest and imprisonment could not deprive one of that sort of autonomy. Tellingly, the only circumstance in which Kant recommended disobedience was when one's ruler attempted to govern not only one's actions, but one's deliberations; sovereigns could lawfully regulate everything but one's freedom of thought.
Godwinian private judgment, on the other hand, extends much farther than simple deliberation. The exercise of private judgment is not only a duty, but also a good, valuable in itself. Godwin's value theory treats the skill of judging (and acting) wisely, and the means by which one develops and practices that skill, as among the highest goods for human beings. Consequendy, knowledge and practical experience are important goods, since they are necessary for the
proper exercise of private judgment. According to this view, a ruler who tries to keep me from acting on my own decisions is depriving me of two important goods: the chance to act on this occasion as my conscience prescribes, and the chance to develop my skill in judging. Since these are among the highest goods available to humanity, there is a strong presumption against the moral legitimacy of infringing upon them.
This deep respect for conscience and the liberty to follow conscience implies that the best way to alter someone's behaviour is by appeal to that person's rationality, not by threatening her livelihood or well being. Governments, which depend ultimately on the coercive means of law and punishment, are therefore inherently tainted and undesirable. And if one accepts (as did Godwin) the perfectibilist belief that human beings are capable of indefinite improvement in knowledge and rationality, governments will someday be unnecessary. This is how Godwin derives his anti-government stance and his belief that people ought to have an extremely broad range of discretion to decide how to regulate their own affairs.10
But perfectibilism is a precarious foundation for a political theory. Godwin's faith in the perpetual unprovability of humans is charming but difficult to defend, particularly in the light of world history in the last 200 years. And even a rationally enlightened society would still face coordination problems such as the problem of public goods. Without some sort of social authority to resolve intractable disputes and prevent the problems of social and economic free riding, society would be considerably worse off than it is with government.11 The thesis that a just and well-ordered society can result from purely voluntary interactions, even the interactions of ideally rational individuals, is not well supported. This seems to justify relegating anarchist political theory to the back shelf: an interesting but fruitless 'fantasy of reason', as Don Locke puts it.12
But there is another option. If one sets aside the dubious thesis of perfectibilism, anarchist theory need not lead to the unrealistic conclusions just mentioned. The principle of private judgment has intuitive appeal, and may have the potential to ground a contemporary political theory. Indeed, Jeffrey Reiman has argued recendy that his version of 'critical moral liberalism' should be grounded in considerations arising from some of the same religious arguments for freedom of conscience that gave rise to Godwin's own principle of private judgment.13
So rather than set aside political anarchism, it is worth our while to investigate the potential of the theory that remains.
As I have already mentioned, I argue that Godwin's theory does not require a strong, unrealistic anti-authoritarian stance. It is possible to defend the legitimacy of a limited form of government without diverging from the basic principles of his theory or resorting to the use of additional principles such as Rousseau's general will. There is a Godwinian principle which makes this possible: namely, respect for rational authority. This argument defends the legitimacy of government by viewing it in the same light as other sorts of authority to whom obedience is undeniably rational.
3. Rational Authority
The principle of private judgment tells the individual to act on the basis of his or her deliberation; but an authority operates in part by eliminating the need for deliberation. This is not to say that authorities intend to forbid deliberation; but they do intend to make deliberation pointless. A state can leave its citizens free to deliberate as much as they like about whether or not to obey the law, but it will still intend that deliberation be irrelevant to the citizens' actions. Under ordinary circumstances, the state denies that citizens have the right to act on personal deliberations if those deliberations militate against obeying such things as traffic laws, municipal construction codes, or workplace safety regulations. It seems, then, that private judgment and authority are inherently in conflict.
But this is not true in all cases; the principle of private judgment can support obedience to some kinds of authority. No matter how much one values individual judgment, one must recognize that some people's judgment is more accurate than others. Indeed, Godwin and other political anarchists have granted this point and stated that some advice should be followed without questioning. The kind of authority conceded to people with special advantages of judgment is sometimes called 'rational authority'; the term Godwin uses is 'confidence'.
Godwin begins his argument for obedience to rational authority by noting the existence of expertise:
Every man will find that there are some points in which he is the equal or perhaps the superior of other men, but that there are certainly points in which other men are superior to him. The superiority in question in the present instance is superiority of intellect or information.14
Utopian though Godwin was, he knew quite well that not all people have equal talent, knowledge, or ability; and that civilized life would grind to a halt if no one was ever comfortable following someone else's orders.
It may happen that the point in which another man surpasses me is a point of some importance to my welfare or convenience. I want, for example, to build a house, or to
sink a well. It may happen that I have not leisure or means to acquire the science necessary for this purpose. Upon that supposition I am not to be blamed if I employ a builder for the first, or a mechanic for the second; nor shall I be liable to blame if I work in person under his direction. This sort of obedience is distinguished by the appellation of confidence ... 15
There will inevitably be cases in which I simply must rely on the judgment of other people; I cannot be an expert about every matter that comes before me. In those cases, I am justified in obeying the authoritative advice of the people who are experts.
This admission is subject to strict limits. First, the authority must actually merit the confidence I place in him or her. Placing unjustified faith in authority is a serious vice; not merely because of the risk of failing to do one's duty, but also because of the injury to the principle of relying on one's informed, conscientious judgment.
... obedience flowing from the consideration of a penalty is less a source of degradation and depravity than a habit of obedience founded in confidence... . The greatest mischief that can arise in the progress of obedience is, where it shall lead us, in any degree, to depart from the independence of our understanding, departure which general and unlimited confidence necessarily includes.16
I cannot consider myself justified in taking someone's advice as authoritative. unless I know that this person is genuinely knowledgeable about the subject in question. This determination in itself calls for a considerable exercise of judgment on my part.
Second, confidence must be specific to a particular area of knowledge. It is all too common that someone who is an authority in one area of expertise will be thoroughly ignorant in many other areas - and indeed may not even be aware of the extent of his ignorance outside his particular field. So if I am to place my confidence in someone, I should limit this to the specific areas in which I have genuine reason to think that my confidence is well placed.
Third, my confidence in an authority must be continually updated and tested. An authority's expertise may fade; or I may come to equal or exceed him in knowledge. Or I may decide that it is better to learn from my own mistakes. So even in those cases where obedience may be justifiable, I am under a constant obligation to monitor the authority; to judge whether it still merits my confidence; and to assess whether the urgency of my duties justifies obedience rather than reliance on my independent judgment.
Finally, some areas of knowledge are not ones in which we need the opinions of experts. Godwin has special disapprobation for those who fail to follow their private judgment '... in those cases of general justice which are equally within the province of every human understanding'.17 By this Godwin means especially
matters of morality, courtesy, and political justice. Normal, rational adults have a special obligation to rely on their own judgment in these areas, as they are presumed to be able to develop their understanding in these areas. Confidence and obedience in experts should be limited to questions of technical or scientific knowledge.
4. State Authority
So much for defining rational authority. The key to defending obedience to the state in modified anarchism will be to develop a theory of state authority as rational authority. Obedience to the state will be morally permitted (perhaps even required) in those cases where relying on one's private judgment is inadequate to the proper determination and execution of one's duties.18 As should be clear, the kind of authority that this account justifies is limited, provisional, and relative to the individual. This should not be surprising, given the ideological roots of this theory. Still, I will argue that this account can allow for a considerable amount of state action. As I mentioned earlier, Raz has developed a persuasive argument for this claim. My method will be to discuss Raz's argument and show how it agrees closely with the theoretical foundations already discussed.
5. Defining Philosophical Anarchism
I have not yet carefully defined philosophical anarchism or justified my inclusion of Raz among the philosophical anarchists. He certainly is not a political anarchist, as attested by his arguments in defence of state authority and law. Indeed, at one point he describes his position as a corrective to mistaken understandings of authority held by some prominent anti-authoritarian writers, including Godwin.19 But several different authors have described Raz as a philosophical anarchist, and plausibly so.
There is a fair amount of disagreement about how exactly to define 'philosophical anarchism.'20 Robert Paul Wolff has sometimes been cited as the philosophical anarchist par excellence. As we saw in the earlier discussion of his work, he claims that no government or law could ever have authority over moral agents: that there is an inherent contradiction in the notion of legitimate authority. A. John Simmons calls this view 'a priori5 philosophical anarchism.21 Wolffs view is not widely shared, and I also argued earlier that it is incorrect.
But not all 'philosophical anarchists' are Wolffians. Some take a much more plausible approach: they admit that law can apply authoritatively in some cases, but deny that all laws necessarily apply authoritatively to all subjects. Simmons describes a position which he says is common to all philosophical anarchists:
Subjects have no political obligations ... to obey the law because it is law or to support the political leaders or institutions that try to compel their allegiance.22
This position denies an important traditional doctrine regarding political obligation, which is that all subjects have political obligations to obey laws as such. This traditional doctrine can be hedged in various ways such as claiming that all citizens have particular political obligations toward their own states; or that only just governments create political obligations; or that people have obligations only to obey just laws. However it is qualified, though, at base it asserts that there is some special obligation applying to all members of a political community with respect to all laws of that community that meet some basic requirements of justice. To deny that doctrine means to deny that there is a prima facie obligation to obey even the just laws of a just government.23
Raz's own view is of this sort.24 He argues that there is no basis for believing in a prima facie obligation to obey the law, and that political obligations must derive from substantive considerations other than merely being subjects of a state, however justly constituted that state may be. He also holds that legitimate authority is a coherent concept, and that some laws are authoritative for some people. I will argue that this analysis is one to which a Godwinian can reasonably assent. Here, then is a discussion of his analysis.
6. Justifying Legal Authority
Raz's justification of authority rests on three theses: the dependence thesis, the normal justification thesis, and the pre-emption thesis. The dependence thesis asserts that legitimate authority must base its decisions about orders and recommendations for action upon pre-existing reasons, i.e. reasons for action which already apply to the people who will act.
... all authoritative directives should be based on reasons which already independendy apply to the subjects of the directives and are relevant to their action in the circumstances covered by the directive.25
This is in close accord with Godwin's views on the matter:
The supreme power in a state ought not, in the strictest sense, to require anything of its members that an understanding sufficiendy enlightened would not prescribe without such interference.26
The dependence thesis amounts to the claim that the existence of state authority does not inherently involve the creation of new kinds of reasons for acting. The dependence thesis0would not support the notion that there can be 'reasons of state' that have no ultimate connection to the flourishing of the people who are ruled by the state.27 So, for example, a fascist or nationalist principle that elevated national glory as an end over and above the welfare of the people of the nation would be contrary to the dependence thesis.
Raz's treatment of this topic is more nuanced than Godwin's, as Raz points out that the dependence thesis is not the same as the 'no difference thesis'. The dependence thesis asserts that an authority must operate on the basis of already existing reasons for action. The no difference thesis, however, claims that an authoritative decision should have no effect on the obligations of the people subject to that authority. But authoritative decisions based on dependent reasons can change the specifics of what people should do: for example, an authority can legitimately create a convention. A good example is the creation of conventions regarding traffic safety. Traffic should travel on one side of the road. It does not matter which side, right or left, as long as we all agree on one side. If there is no agreement, then apparently there is no clear duty to drive on one side in particular. A state-created convention establishing which side of the road to drive on can make a difference in people's specific duties by fixing one side as the obligatory side. So in this case the state has made a difference in people's specific duties; but those duties are still derived from a prior duty to drive safely which would exist regardless of the actions of the state.
The normal justification thesis asserts that the normal justification for a subject S to obey an authority A is that S is more likely to fulfill his or her obligations by following A's recommendations than by attending directly to the reasons that are directly evident to S. In other words, authority is worth obeying when its judgment about our duties is better than our own. This reasoning, of course, applies to all kinds of authorities, including state authority.
As Raz points out, other sorts of possible justifications for authority are not terribly persuasive. For example, I may decide to obey someone if my disobedience
would hurt his feelings, or if my disobedience would cause other people to act dangerously. Although these sorts of considerations may present me with reasons to do what that person says, those reasons are not based on the person's authority, and they do not bear on the question of whether that person counts as an authority.
Once again, this is consistent with Godwinian principles. On each occasion when I obey someone, my obedience ought to be based on my expectation that they have rational authority, i.e. that they are in a better position than I am to know what to do. Obedience on other grounds is an unjustified surrender of my right and duty to think and act conscientiously. Also worth noting is Raz's emphasis on authority's role in helping one carry out one's duties; this echoes Godwin's characteristically Puritan emphasis on duty, in which liberty is defended as necessary for the proper fulfillment of one's obligations.
Finally, there is the pre-emption thesis, which follows from the previous two theses. This asserts that in some circumstances, decisions by an authority preempt the reasons on which they are dependent. That is, the handing down of an authoritative decision removes from consideration some of the reasons on which that decision was based. It substitutes the decision, in the context of its having been handed down by the authority, as the primary reason for action.
... the fact that an authority requires performance of an action is a reason for its performance which is not to be added to all other relevant reasons when assessing what to do, but should exclude and take the place of some of them.28
This follows from the previous two theses in the following manner. Suppose an authority passes a law or makes a recommendation to me. In what circumstances am I justified in disregarding that recommendation? If the state is attempting to impose a new sort of reason for acting upon me, or commanding actions for which there is no good reason, I might reasonably refuse to obey the law; but a state operating according to the dependence thesis will base its edicts on already existing reasons. If the state is mistaken about what action will best achieve the desired end, I may have reason to disobey the state. But in some such cases, the state can be regarded as lacking authority (according to the normal justification thesis).
If obeying in this case would grievously stunt my moral and intellectual development, then it would be preferable to follow my own judgment, even at the risk of making mistakes and failing to perform my duty. Raz recognizes that this is a legitimate reason in some cases: he specifically recommends obeying authority only 'where improving the outcome is more important than deciding oneself.'29 In this sort of circumstance, one can regard oneself as attending to an overriding duty which must be fulfilled by dint of one's own efforts.
But suppose that none of the preceding conditions apply. The state orders me to perform an action which is intended to help me carry out a pre-existing duty;
the state has epistemic authority in this matter; and carrying out the duty is more important than educating my judgment in this area of knowledge. Is there any remaining reason not to let the state's judgment pre-empt my own? One might argue that one ought to take the authority's reasoning not as pre-emptive, but as an additional factor to weigh in one's own reasoning. But, as Raz argues, this is not a rational option. In those situations where the authority can be depended upon to produce more reliable results than one's own independent judgment, one ought to use its commands as the basis for one's actions, rather than depending on the independent reasons which one would use in one's own deliberations if the state had made no recommendation. The state's commands should remove those independent reasons from consideration, or pre-empt them. For the pre-empted reasons have already been taken into account in the authority's process of judgment. Using the pre-existing reasons as well as the authority's recommendation would be to count *the same reasons twice, which threatens one's epistemic accuracy.
Once again, we can readily find examples where obedience to law is entirely appropriate and indeed called for by Godwinian principles. Our earlier example was obedience to traffic laws. One of my. duties while driving an automobile is to drive safely; traffic regulations are a state-imposed means of enhancing my ability to carry out that duty. They do this, in part, by suspending the need for an extensive process of private judgment with regard to whether to stop at certain intersections, at what speed to travel, on what side of the road to drive, and so on.
Ultimately, the benefit results from putting decisions of this sort in the hands of those who are best qualified -- by aptitude, training, and personal research and experience -- to make them. Even if I have the basic intelligence necessary to learn how to operate a piece of complicated machinery, or how best to navigate a heavily travelled highway, I do not have the time necessary to study each of these items and determine my duty in each case -- not, at least, if I am to do anything else, including carrying out much more important duties that I am better placed to perform. So I am justified in placing my confidence in these experts, provided that their judgment is demonstrably better than mine at determining my duty.
This justification of authority does not create a general obligation to obey the law in all circumstances. One will be obliged to obey the law only in those cases where the state actually has an epistemic advantage. If I know that the state's knowledge of my duty is inferior to my own, then this obligation to obey on the basis of authority no longer applies. Of course, as noted above, there may be other reasons to do what the law demands, even though those reasons are not based on the law's authority in the matter. One might obey a mistaken law in order not to encourage other people to break the law in ways that might cause harm. But we recognized at the outset that there may be any number of independently existing reasons to do what the law requires, and that such
behaviour, since it is not based on taking the law's imperatives as pre-emptive, does not count as obedience to authority.
One interesting question that this account faces is whether state creation of standards and conventions actually counts as a species of epistemic authority. For example, suppose that an unimpeachable expert determines that the safest and most efficient way to use a certain stretch of highway would be for everyone to travel on it at around 100 km/h. The state agency in charge of the highway, however, gives the matter little attention and sets the maximum speed at 85 km/ h. If we are willing to grant that this agency has authority to make this sort of mistake, which seems prima facie reasonable, we are faced with two problems. One is that we seem to have granted authority even in the absence of epistemic privilege. The second is that this non-epistemically privileged authority has been able to change people's duties: for assume that most people now obey the lower speed limit, and that travelling at 100 km/h when most others are going at 85 km/h is dangerous. Granted those assumptions, it now appears that one's duty is to travel at 85 km/h rather than 100 km/h.
In this case, the solution to the second puzzle is the key to solving the first. We must first note that one's duties in traffic are highly dependent on prevailing circumstances. This applies to our highway example: although the highway might be safest if everyone were to travel at around 100 km/h, this does not yet establish that any individual has a duty to drive at that speed. The duty to drive at 100 km/h is a potential duty; it is only a duty if the practice of driving at 100 km/h is widespread. In other circumstances, such as the ones created by the state's action, my duty may well be to drive at the legal and prevailing speed of 85 km/ h. This would be my duty because of the change in behaviour of other people, and would apply even if the prevailing speed were 85 km/h for reasons unrelated to state action.
The state's action has changed other people's behaviour, and in so doing has altered the context in which my duties are determined. Can this be legitimate in the absence of epistemic advantage? Interestingly enough, we can argue that the state's position as an authority creates a special kind of epistemic advantage: that of the self-fulfilling belief. In this case, the state authority believed that people had a duty to drive at 85 km/h, and its actions on the basis of that belief made that belief true.30 This implies that being a de facto authority can by itself fortify one's claims to having the epistemic advantage necessary to be a legitimate authority. This result is in keeping with traditional views about the need to possess some de facto authority in order to qualify for de jure authority.31
If we accept that this analysis of authority is supportable, we face the task of determining the extent of state intervention that it allows. It seems apparent that a state based on this theory should recognize my need to diverge from its
decisions in some circumstances. For example, if I need to drive someone to the hospital in an emergency, it may be appropriate to make my own decisions about whether to run a red light or to exceed the speed limit. In situations like this, allowing state directives to determine how I should carry out my duties can be less effective than making such decisions myself. The state-as-rational-authority would recognize its own fallibility in situations of this kind. And existing states sometimes act in this way. The example above suggests the legal doctrine of necessity: if breaking the law v> necessary for some overridingly important end (such as saving a life), then typically that necessity is a sufficient defence against being convicted or punished for breaking that law. Conscientious objection to military service is another good example of states allowing citizens to substitute their own deliberations for that of the state.
Government based on these principles would seek to limit its exercise of authority to cases in which it actually has epistemic advantage. Some examples are the creation of conventions and standards, and the formation of coordinative agencies to help channel and direct the activities of well-intentioned citizens whose efforts would otherwise be diffuse and ineffectual. This is how some massive governmental activities have been carried out in the past, and this role allows for a wide range of governmental action. The extent of legitimate state power even in these cases should not be exaggerated. Standards, conventions, and coordination are useful tools, but if the need for them can be met by voluntary association and the free market, then the state would not need to intervene.32 Still, in those cases where the free market cannot produce the required conventions or coordinative mechanisms, the state would be justified in creating and imposing them.
Furthermore, a state constituted along these lines should also take very seriously the need for its citizens to maintain an attitude of scepticism and constant evaluation of the government. As Godwin noted in the passage quoted earlier, an unjustified or casual confidence in authority is considerably more dangerous to one's own powers of judgment than an attitude of passive obedience under protest.
The preceding argument suggests that there may be some potential for a reconstituted Godwinian theory, shorn of its perfectibilism and with a proper appreciation for the legitimacy, within a limited scope, of legal authority. Such a theory, including additional Godwinian principles not discussed in this essay, would justify a distinctive left-liberal form of government. The full theory would, of course, need to be justified in detail, at a length far beyond that available here; but this essay has, I hope, cleared away one initial obstacle to further development of Godwin's ideas.
* This paper is a revised version of a chapter from my doctoral thesis, Godwin Revisited (1996), in which I develop a political theory based on Godwin's views. Thanks to Mike Weber, Ted Hinchman, Don Herzog, Jeffrey Brand-Ballard, Glen Shadbolt, and an anonymous referee for advice and criticism. Thanks also to the University of Michigan Department of Philosophy, at which I presented an earlier version.
1 Another exception to the neglect of anarchism is 'anarcho-capitalism,' a variant of libertarian political theory that proposes the privatization of basic governmental functions such as policing and judicial services. This theory retains the traditional anarchist goal of eliminating the state, but grounds its rationale for this goal in libertarian theory. The most prominent contemporary anarcho-capitalist is David Friedman. See his The Machinery of Freedom (2nd edn) (La Salle, Illinois: Open Court, 1989).
2 See below for a more detailed discussion of philosophical anarchism and the question of whether Raz is in fact a philosophical anarchist.
3 Another term that might prove useful, particularly in reference to Godwin's philosophy, is 'radical liberalism'. See William St Clair, The Godwins and the Shelleys (Baltimore: Johns Hopkins University Press, 1989) at 479.
4 For a careful and extended interpretation of the moral principles common to the classical anarchist thinkers, see Alan Ritter, Anarchism: A Theoretical Analysis (Cambridge: Cambridge University Press, 1980).
5 My interpretation of Godwin and his grounding in the Dissenting tradition is deeply indebted to Mark Philp's analysis in Godwin's Political Justice (Ithaca: Cornell University Press, 1986). It contrasts with interpretations such as those of Peter Marshall in William Godwin (New Haven: Yale University Press, 1984) and John Clark in The Philosophical Anarchism of William Godwin (Princeton: Princeton University Press, 1977) which stress Godwin's apparent utilitarianism.
6 Richard Price, in D. Daiches Raphael (ed.), A Review of the Principal Questions in Morals, 1787 (Oxford: Oxford University Press, 1948).
7 Robert Paul Wolff, In Defence of Anarchism (2nd edn) (New York: Harper Torchbooks, 1976).
8 'Autonomy and Political Obligation' manuscript in preparation.
9 Thomas E. Hill, Jr., "The Kantian Conception of Autonomy" in John Christman (ed.), The Inner Citadel: Essays on Individual Autonomy (Oxford: Oxford University Press, 1989) at 91-105. The passage quoted is on p. 94.
10 This emphasis on personal discretion is in an unclear and uneasy relationship with Godwin's utilitarianism, which holds that one ought to do whatever action will produce the most good. Even if one holds that acting as one's conscience dictates is an extremely important good, there will still be occasions when one can produce more good by forcibly interfering with others than by leaving them alone. Godwin does not provide a clear guide to resolving this worry. His most specific remark is that 'Force may never be resorted to but, in the most extraordinary and imperious emergency' (William Godwin, Enquiry Concerning Political Justice, 1798 (London: Penguin, 1976), 198). In other circumstances, we are told, each person should be allowed a 'sphere of discretion' within which to enjoy complete liberty. This appears to be a narrower term than 'private judgment'; perhaps the set of actions that others are morally obliged to tolerate is a proper subset of the actions that might conceivably be dictated by conscience. Thanks to David Hills for emphasizing this point to me.
11 Gregory Kavka presents a more elaborate argument along these lines in 'Why Even Morally Perfect People Would Need Government' (1995) 12 Social Philosophy and Policy 1-18.
12 Don Locke, A Fantasy of Reason (London: Routledge and Kegan Paul, 1980).
13 Jeffrey H. Reiman, Critical Moral Liberalism: Theory and Practice (London: Rowman & Littlefleld, 1997) at 7-9.
14 Godwin, above n 10, 240.
16 Ibid, at 241-2.
17 Ibid, at 245.
18 As this statement implies, there are potentially many duties other than private judgment; and although private judgment is an important duty, there is no reason to think that it can never be outweighed in importance by other duties. The justification of rational authority will apply in those cases where it is more important that one carry out those other duties than that one exercise one's judgment about them.
19 J. Raz, The Morality of Freedom (Oxford1: Oxford University Press, 1986) at 38.
20 Some relevant discussion is in A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979); On the Edge of Anarchy (Princeton: Princeton University Press, 1993) at 260-269; and 'Philosophical Anarchism,' in John T. Sanders and Jan Narveson (eds), For and Against the State (London: Rowman & Littlefield, 1996) at 19-39. For an extended criticism of philosophical anarchism, see Chaim Gans, Philosophical Anarchism and Political Disobedience (Cambridge: Cambridge University Press, 1992).
21 A. J. Simmons, 'Philosophical Anarchism' above n 20, at 20-1 and 34 n 7.
22 A. J. Simmons, 'Philosophical Anarchism', above n 20, at 22. Simmons goes on to distinguish between 'weak' philosophical anarchism, which claims no more than the non-existence of political obligations, and 'strong' philosophical anarchism, which asserts in addition a moral duty to seek the abolition of government. I refer to 'strong1 philosophical anarchism as 'political' anarchism.
23 Wolffs 'a priori' philosophical anarchism asserted the conceptual impossibility of legitimate authority; this weaker position allows for legitimate authority, but denies that there is good reason to believe that any laws speak authoritatively to all citizens in the way claimed by adherents of the traditional doctrine of political obligation. The lack of good reason to think this depends to some extent on the contingent fact that subjects vary with regard to their epistemic abilities. Although we can imagine a polity in which all subjects are in need of authoritative guidance by a particular law, we are unlikely to find such a situation in reality. Hence there is no reason to think that laws produce universal political obligations. Simmons calls this position 'a posteriori' philosophical anarchism, for obvious reasons. See Simmons, above n 21 at 21-2.
24 See J. Raz, 'The Obligation to Obey the Law' The Authority of Law (Oxford: Oxford University Press, 1979) ch. 12; 'Government by Consent,' in J. Roland Pennock and John W. Chapman (eds), Nomos 29: Authority Revisited (New York: New York University Press, 1987) at 76-95; and The Morality of Freedom, above n 19, chs 3 and 4 (especially pp. 99-105).
25 J. Raz, above n 19, 47.
26 Godwin, above n 10, 166.
27 Kurt Baier makes a similar argument in 'The Justification of Governmental Authority' (1972) 69 Journal of Philosophy 701-16. He asserts that in order for subjects to have reason to comply with authority, the authority's commands must not be 'imposed', i.e. there must be reason to do the action other than simply fear of punishment or retribution. See 708-10.
28 Raz, above n 19, 46.
29 Ibid, at 69.
30 This analysis was suggested to me by J. David Velleman, for which I thank him. It has some similarity to his analysis of action and individual self-awareness in Practical Reflection (Princeton: Princeton University Press, 1989) especially chapters 1 and 2. Baier makes a similar argument: above n 27 at 715.
31 On this topic, see J. Raz, The Morality of Freedom, above n 19, 75-6.
32 I do not mean to trivialize the need for these conventions to be just, equitable, and efficient. Some market-created conventions (for example, those found in assurance game-like situations) place unjust burdens on some of the panies involved. Depending on the situation, state action may be appropriate in a wide range of cases. But one can regard state action as justifiable while still holding that the state ought not to be the venue of first resort for the creation of conventions or for conflict resolution.