Published in Robert Paul Wolff, ed., The Rule of Law, 1971.
Robert Paul Wolff
Editors, like judges, should be magisterial in their impartiality; just as symposiasts, like attorneys, should be partisan in their advocacy. My own contribution to these essays makes it clear that I incline more to partisanship than to impartiality. My natural response to the contributions of my colleagues is to argue with them, not editorialize about them.
After struggling briefly with the conflict between the objective demands of editorship and the subjective temptations to which I am prone, I have decided to succumb to the latter and ignore the former. What follows, therefore, is in no sense an even-handed summing up of the contents of the book. Rather, it is my own reactions to two of the essays whose arguments struck a particularly responsive chord in me. I might simply note that in the case of some of the essays, particularly those of Howard Zinn, Edgar Friedenberg, and Richard Barnet, I have made no comment because I am so thoroughly in agreement with their views.
Let me begin by voicing some very deep uncertainties concerning the radical position which I take in my essay on violence and the law. For some time now I have been divided within myself over the fundamental issue of political authority. I have attacked the concept of political authority as confused and illegitimate. Adopting what is, ironically, an old, even traditional, position, I have argued that no man ever has any moral obligation to obey  the state as such. No law, however enacted, has authority over me unless I have voluntarily and directly legislated it. Not even in a genuine participatory democracy, if ever one could exist would the minority be morally obligated to submit to the will of the majority. Nor does any system of constitutional safeguards and legal protections confer authority on the commands of the state. As I say, this is an old view, espoused by such diverse thinkers as William Godwin in England and America's own little-known Lysander Spooner.
My doubts do not concern the truth of the anarchist position, although obviously I may someday discover that I have misled myself with meretricious arguments. Rather, I am concerned about the wisdom of proclaiming the anarchist doctrine to an audience which might misunderstand its tenets and draw dangerously wrong conclusions from it. To ask the question dramatically and, I am afraid, arrogantly: Should political philosophers who grasp the truth of the anarchist position adopt the stance of Dostoevsky's Grand Inquisitor, keeping their knowledge hidden behind the miracle and mystery of state authority?
It was reading Anthony Wallace's essay on violence and revi-talization that heightened my uncertainty on this point. His characterization of the interplay between opposed types of moral orientation forced me to reconsider my easy assumption that a general calculation of social consequences could serve as a guide to action in particular cases.
The problem is this: If no political authority can ever be legitimate, then each man is thrown back on his individual estimation of social costs and benefits as a standard for judging the Tightness of actions. He cannot simplify his deliberations by saying to himself, in effect, "The law is clear, the government is legitimate, I am a citizen, so I have a duty to do what the law says." Instead, in each case, he must calculate consequences, evaluate the effect of law-defiance on the general attitude toward law, estimate the costs and benefits of available alternatives, and then choose the optimal course of action.
Now, even assuming a commonly agreed upon standard for  deciding what will count as a cost and what as a benefit, this conception of autonomous decision-making assumes an impossibly high level of knowledge and predictability of causes and consequences. I not only cannot calculate precisely how much good and evil I will do by evading my income tax or going through a red light, I cannot even guess approximately how much good and evil I will do. When my socially significant actions take place in the setting of a modern bureaucratic industrial society of several hundreds of millions of persons, the margin of error in my calculations is larger than my total impact on the society. In an antiwar demonstration, for example, is the good done worth some cuts and bruises in a scuffle with police? a broken leg inflicted on a bystander? the death of one of the demonstrators? How can such a calculation be taken seriously?
The result, inevitably, is that I act and calculate on the basis of subjective psychological projections rather than objective sociological data. Wallace expresses this very nicely in his analysis of the opposed paranoid extremes to which the procedural and teleological moralists are driven by their selective perception of the functioning of social systems. As he puts it, "the procedural-ist fears that if anyone is allowed to 'get away with' anything, the whole world will crumble, and the teleologist fears that he individually may be destroyed 'accidentally on purpose' by a malevolent system."
The university trustee determined to crush student rebels even at the cost of the university is a familiar example of the proce-duralist in extremis; the modern-day Luddite who goes out of his way to fold, staple, and mutilate IBM cards is typical of the teleological frame of mind gone wild. (The reader can identify his own leanings by reflecting on whether he resents my characterization of the trustee, or alternatively feels an involuntary smile cross his lips at the thought of the punch-card defiler.)
When these two groups confront each other, the anxieties of each are confirmed by the rhetoric of the other. A reciprocal polarization takes place in which each feels forced to take a stronger and less flexible position. The result is not only the  elimination of the middle -- which is frequently a good thing in politics -- but also a coarsening and falsification of the opposed points of view, which is not, by and large, a good thing at all.
As a philosophical, or non-bomb-throwing, anarchist, I hold that men should conform their behavior to the law when the consequences of conformity are better than those of disobedience; otherwise, they should ignore the law or actively disobey it. The law itself, independent of the consequences of obed-ence or disobedience, has no majesty, no mystery, no authority which can legitimately claim our allegiance.
Such a doctrine is all very well in a world of precise and calculable outcomes. Set a group of rational men down in such a world, and they will do very nicely as philosophical anarchists. But what can anarchism mean to a man in the world we actually inhabit? Since most of his choices do not permit of even rough approximations to genuine calculations, he must be guided by some general attitude toward the law and the institutions of government. Either he will focus his attention on the general benefits of order and law-abidance, like the proceduralist, in which case he will heavily overemphasize the claims of the state; or he will concentrate upon the evils of particular state commands, in which case he will seriously underestimate the value of the social order achieved by a general climate of legal authority. In either case, his decisions will lean more in some one direction than the facts warrant.
Now, if I pretend to believe in the legitimacy of the democratic state, or more generally in some "prima-facie" duty to obey the law, then I will systematically underestimate the evil which I participate in by my law-abidance. As both Howard Zinn and Edgar Friedenberg point out, the ordinary everyday workings of the law cause enormous misery to those who happen to be poor and relatively powerless. But if I proclaim the doctrine of anarchism and try myself to live by it, I must inevitably encourage in myself and others a greater degree of law-defiance than a calculation of consequences would warrant.
It might be objected from the left that my uncertainty merely  reflects my unwillingness to make a total commitment to revolutionary action. A true revolutionary, after all, is like a soldier in battle, and he has no need to make subtle estimates of the probable effects of his attacks on the enemy. But revolutionaries, like soldiers, are merely loyalists who owe their allegiance to a different flag. As an anarchist, I consider a dictatorship of the proletariat, a people's republic, or the Movement no more legitimate than the present American Government, though one or another of them might very well be preferable on general moral grounds to the regime now in Washington. So in the unlikely event of a genuine popular socialist revolution, I shall still face the same perplexing problem.
The problem is indeed a strange one for someone like myself who was reared in the faith that man is better for knowing the truth. Does the healthy functioning of society -- any society -- require that the great preponderance of men believe in the legitimacy of some social authority, even though such beliefs be always wrong? Can a social order survive the autonomy of individual conscience when that conscience is not confined to a rare few or restricted to one or two great moral issues? Certainly the romantic optimism of most anarchists concerning human nature bears no relation to any of the facts of human behavior with which I am acquainted.
There is a curious parallel here with the conditions for psychic health within the individual personality. The infant develops a strong psyche in part by acquiring a number of manifestly false beliefs which no later experience can shake. He learns -- if he is well cared for -- that there will always be food when he is hungry and comfort when he is ill, and that his mother will come to him when he cries. These early experiences create in the normal infant that root confidence which Erik Erikson labels "trust" in his schematic account of the stages of healthy ego development.
Now, of course, the infant is quite wrong. There won't always be food and comfort, and mother will not always come when called. But odd as it might seem on first reflection, the adult's  ability to deal with the absence of food, comfort, and mother is grounded in his infantile belief -- never really given up -- that food and mother will arrive. If a mother were so foolish as to prepare her baby for real-world frustrations by feeding him only randomly or refusing to respond to his cries, she would produce not a clear-eyed, realistic, demythologized rational adult, but simply a neurotic mess.
There was a time when men firmly believed that society would not survive the disappearance of active religious faith. It seemed obvious to them that without the authority of divine sanctions men could not be relied upon to maintain a level of predictably regular behavior sufficient for peaceful social relationships. But we have survived the death of God, and we may yet survive the death of the state. Perhaps I am overly pessimistic in my apprehension at the effects of anarchist doctrine. I should very much like to think that only good can come from the spread of the political philosophy I believe to be true, but am bound to admit that there is no necessary connection between the truth of a proposition and the good effects of its propagation. Then, too, the way things have been going for anarchism, it is liable to be a very long time before a practical test of that connection is possible!
Let me turn now to a very different set of issues which are raised by Lon Fuller's discussion of human interaction and the law. His essay made a deep impression on me because it fit so closely with a number of ideas that I have been trying to work out in the foundations of moral and political obligation. At the risk of alienating Professor Fuller, I should like to turn his arguments to my purposes and draw from them some conclusions with which he would perhaps not agree.
Moral obligations, I believe, can arise only out of reciprocal commitments or agreements or understandings between free men. Neither the word of God, nor the intuitions of a moral  sense, nor the "demand quality" of a situational context, nor even the a priori legislation of a purely rational will can be the source of a genuine obligation. It follows that men can truly be said to have obligations toward one another only insofar as they can reasonably be construed to have covenanted together or agreed collectively on rules for governing their relationships with one another.
The purest and simplest form of such collective agreement is an explicit contract of the sort celebrated by the classical social contract theorists. But quite obviously there are other ways in which men arrive at mutual understandings. The value of Professor Fuller's essay to me lies in his demonstration that most of what we call law has its origins and rationale in processes of explicit or tacit collective agreement. The "stable interactional expectancies" of which he speaks are the behavioral equivalents of explicit collective agreements on the rules of social relationships.
Now, what is it in the origins of "customary" or "contract" or "enacted" law that could create a moral obligation to abide by the "stable interactional expectancies"? Professor Fuller points out that I do not develop a right to demand that my neighbor rise at eight a.m. merely because he has been doing so for years and I have come to expect it of him. I must in some way have adjusted my affairs to his behavior, and he must in some way have given me to believe that his behavior would continue.
I would add that his behavior and mine must have been voluntary in order for an obligation to come into existence. If I own a slave from whom I exact services over many years by threat of punishment, I may indeed adjust my affairs in some substantial way on the basis of those services. But the slave has no moral obligation to continue to perform them, and I have no right to demand them, even though he himself has derived some benefit from the relationship.
For a moral obligation to arise, it is not enough that there be a stable interactional expectancy from which all the parties genuinely profit. The relationship must be mutually voluntary. This condition is, of course, a familiar prerequisite of a valid  contract. I am suggesting that it is in fact a sine qua non of all moral obligations in whatever contexts, legal or non-legal.
When we combine Fuller's claims about the "customary" dimension of all law with my claims about the contractual basis of all moral obligation, some very powerful and potentially revolutionary conclusions can be drawn.
First, it follows trivially from what I have already said that men only have a moral obligation to obey those laws to which they have voluntarily committed themselves, either explicitly or in some tacit behavioral manner. It is of no significance that their ancestors committed themselves, or that a majority of their fellow citizens have committed themselves. This, in effect, is the anarchist doctrine to which I have several times alluded.
Second, if Fuller is correct, laws which do not express voluntarily adopted stable interactional expectancies do not really deserve the title "law." Pure commands, on his analysis, are not quintessential laws, laws in their purest and most unambiguous form; rather, they are marginal laws at best, roughly in the way that logicians refer to single-place predicates as "monadic relations." For Fuller, a command is to a law as a harangue is to a conversation.
Now consider how these theories of Fuller and myself can be made to serve the ends of social criticism and popular resistance. If putative laws, to be truly laws, must express stable interactional expectancies; and if these laws, to be morally binding on all parties, must express voluntarily accepted patterns of interaction; then blacks and Puerto Ricans in a ghetto, workers trapped in exploitative jobs, young people forced to attend mind-killing schools, all have good grounds for refusing to consider themselves bound by the laws which purport to regulate their conduct. It is not enough that the law has been "constitutionally" enacted, not even enough that those under the law have benefited from it. For them, the "law" is merely a set of commands issued by men who possess a monopoly of the instruments of physical and economic force. Not surprisingly, this is exactly how the law is experienced by those in our society who have  played no active role in determining the "stable interactional expectancies" of their daily life.
In the nineteenth century the positivist theory of law was advanced by utilitarian reformers as a device for lifting the dead hand of tradition from legal and state action. But the theory has always been implicitly centrist and authoritarian in its thrust, for it acknowledges no moral standard internal to the law itself. Fuller's theory, although apparently conservative in its celebration of the customary roots of even positive law, is in fact potentially revolutionary, for it defines standards against which actual law can be measured and rejected as inadequate.
In the coming years American society will see an attitude toward established authority very different from that which has prevailed in the quarter-century since the end of the Second World War. Institutions of every sort -- the Federal Government, local governments, universities, churches, labor unions, corporations -- will no longer find their claims to authority acknowledged un-questioningly. Those who would command will have to earn the respect and trust of those whom they would lead. Students will no longer assume that teachers deserve their ear; state employees will no longer subordinate their economic needs to the government's conception of the public interest, even though the President himself voice it. Soldiers will learn to question the orders of their officers, rank-and-file workers will reject the guidelines of the union leadership.
This is indeed a crisis of authority, as many national leaders have complained, but it is by no means a sign of a breakdown of social morality. Quite to the contrary, it is the surest sign of a new birth of individual responsibility. Genuine social obligations can arise only after traditional and involuntary constraints have been replaced by new, freely chosen patterns of social interaction. The decline in respect for authoritative commands handed down from on high is, of course, a cause for concern to those who  have been accustomed to rule. It is, to them, at the very least an inconvenience, causing inefficiency in what would otherwise be a smoothly functioning social system. At its worst, it can become a challenge to the right of the rulers to rule and the leaders to lead.
The decline in respect for established authority is also a threat to those reformers who seek to correct social injustice from the top down. The easiest institution to integrate, for example, turned out to be the Army, because the job could be done by executive order. The hardest is the school system, precisely because it is already so thoroughly decentralized. Nevertheless, the unruly and disrespectful entrance onto the political stage of formerly docile social groups is to be welcomed. Since it is beneath the dignity of a truly free man to obey a law he has not made, we can only hope that as men begin genuinely to make their own laws they will make good laws.