Normative Legitimacy and the State
Abstract and Keywords
This article offers a critical overview of the major normative theories of political legitimacy from the seventeenth century to the present day, with a special focus on the leading representatives of the social contract tradition: the voluntarist theory, according to which legitimate political authority must derive from the free choices of its subjects; and the natural duty theory, which holds that a state’s legitimacy depends on the extent to which its institutions are just, regardless of whether it has been freely authorized by its subjects. The article then explores the prospects of a hybrid theory that would combine elements of the two and concludes by examining the ways in which the various conceptions of state legitimacy under consideration might be applied or adapted to the case of supranational political institutions.
Varieties of Legitimacy
Setting aside the many uses of “legitimacy” and its cognates in ordinary discourse—where the idea is often invoked as a rather general term of commendation or approval—there are at least two senses of legitimacy that prevail in scholarly discussions of political rule. A set of political institutions is legitimate in the descriptive or sociological sense if those subject to its directives widely believe it to enjoy the moral right to rule. Max Weber, for instance, famously argued that while a state might at least temporarily secure compliance “from motives of pure expediency” or “on a purely customary basis through the fact that the corresponding behavior has become habitual,” institutions upheld on these bases are “much less stable than an order which enjoys the prestige of being considered binding, or, as it may be expressed, the prestige of ‘legitimacy’” ( 1978, 31; see also Lipset 1959; Tyler 2001, 2006). By contrast, a set of institutions is legitimate in the prescriptive or normative sense if it in fact enjoys the moral right to rule over those it claims the authority to govern. Although these senses are easily conflated, and while it may turn out that legitimacy in the sociological sense is among (or exhaustive of) the normative conditions of legitimate rule, it is important that the two notions be kept conceptually distinct, and that legitimacy in one sense of the term is not taken automatically to imply legitimacy in the other sense.
A second distinction, cutting across the first, concerns the particular constituency to which a given political authority can be (or fail to be) legitimate in either the sociological or the normative sense. It is a characteristic feature of territorial states, for example, that they claim to enjoy a certain set of moral rights (such as the right to be obeyed or the right to enforce the law) over those residing inside their jurisdictions and claim a separate set of moral rights (such as the right to be free from certain forms of interference) over those residing outside their political boundaries. States possessing, or widely believed to possess, the relevant moral rights over those living within their jurisdiction may be said to enjoy internal legitimacy, whereas states possessing, or widely believed to possess, the relevant bundle of rights over agents located outside their jurisdiction may be said to enjoy external legitimacy. Here again the internal and external aspects of legitimacy may turn out to be tightly correlated in practice or normatively linked by way of some further premises; the point at present is simply that no such connection is logically or conceptually entailed by the idea of legitimacy itself.
This article’s focus is on the normative and internal aspects of a state’s legitimacy—on the conditions in virtue of which a given state in fact enjoys the right to rule over those living within its territorial jurisdiction—although it briefly considers the legitimacy of supranational, “global governance” institutions by way of conclusion. Before proceeding with the substance of this exploration, however, it is necessary to make clear exactly which rights, privileges, powers, and immunities comprise a state’s “right to rule” in the sense just indicated, and what sorts of responsibilities these entail for the subjects of a legitimate state, so conceived.
What Does Legitimacy Entail?
What follows, practically speaking, from the judgment that a particular state is legitimate in the normative sense? As is true of many normative concepts, the idea of legitimacy has not enjoyed a stable meaning over time, and indeed admits of a wide variety of usages in contemporary philosophical discussions. Rather than assume that a single usage captures the true meaning of the concept, however, we would do better to distinguish the different questions we might be asking when we inquire into a state’s legitimacy and to be clear about the particular role we intend the concept to play in a given context of discussion.
One question we often ask in appraising the standing and conduct of states is whether they are morally entitled to wield political power over their subjects, specifically by issuing legal commands and enforcing those commands with the threat or application of physical force. Theorists primarily interested in answering this question have tended to conceive of a legitimate state as one that enjoys what the legal theorist Wesley Hohfeld (1919) termed a moral privilege or liberty-right to use and threaten force against its subjects (see Ladenson 1980, 137–139; Rawls 1993, 137; Wellman 1996, 211–212; Buchanan 2004, 235–240; Estlund 2008, 2; for discussion of the Hohfeldian taxonomy, see Wenar 2005). This is not to say that illegitimate states are never permitted, on this account, to use or threaten force—even the most morally contemptible regimes presumably have at least some limited entitlement to coercively enforce laws against murder and rape, for example—but rather that only legitimate states enjoy a general permission to do so. (I return at the end of this section to the question of whether even a more general entitlement of this sort might nevertheless allow for various exceptions or suspensions under unusual circumstances.)
But while the notion of legitimacy as a liberty-right to coerce no doubt captures much of what we might want to know about the moral entitlements of states, some have suggested that it prepares us to engage in an unduly narrow assessment of the state’s coercive authority. In particular, it may be observed that a state’s having a liberty-right to use or threaten force does nothing to change what Joseph Raz has called the “normative situation” (1979, 109–110) of those subject to power. It imposes no obligations or other practical responsibilities on the subjects of legitimate rule, including even such minimal obligations—implicit in the state’s claim to enjoy a “monopoly on the legitimate use of physical force within a given territory” (Weber  1946, 78)—as the duty to refrain from using violence as a private vigilante or as a means of resisting official enforcement. Indeed, it would appear, under the liberty-right conception, that the fact that a legitimate state has issued a particular directive gives its addressees no “content-independent” reasons whatsoever—even ones ultimately outweighed by competing considerations—to comply with that directive or to refrain from interfering with its application. (I focus here on “content-independent” reasons in order to set aside those reasons—such as reasons to refrain from using violence against nonthreatening persons—that are duplicated in the law but that would apply to us anyway on account of their moral content, that is, even in the absence of positive legislation.) Insofar as we are interested not simply in the conditions under which a state permissibly exercises coercion in competition with various private actors, but rather in those in virtue of which the state enjoys an exclusive permission to coerce (or to license coercion), we need a notion of legitimacy that is more expansive than the bare liberty-right to wield political power (for discussion, see Nozick 1974, 22–24; Simmons 2005, 97n2; Buchanan 2010, 82).
The leading alternative to the liberty-right account conceives of legitimacy as entailing an obligation on the part of the subjects of a legitimate state to obey the law.1 While a legitimate state, under this approach, is sometimes viewed as possessing what Hohfeld called a claim-right on its subjects’ obedience (Simmons 1979, 195–197; Christiano 2008, 240–241), others have suggested that it is better understood as a Hohfeldian power to change subjects’ moral rights or duties through the issuance of legal directives, where this latter conception is understood to allow for the possibility that a legitimate state may impose content-independent duties to comply with the law without implying that such duties are “owed to” the state (see Raz 1986, 24–28; Copp 1999, 18–19; for a weaker understanding of legitimacy as a moral power, see Applbaum 2010). Under either of these conceptions, however, and in contrast to the liberty-right account, those subject to a legitimate state—having a general duty to comply with the law—would a fortiori lack a moral permission to forcibly resist its enforcement efforts or to use (legally unsanctioned) violence within its jurisdiction.
Yet if the liberty-right account appeared unduly narrow for focusing exclusively on the entitlements of public officials to wield coercive power, the obligation-entailing conceptions of legitimacy may seem incomplete because they neglect this very topic. For while these conceptions explicitly address the question of whether the subjects of a legitimate state are permitted to privately exercise coercion, they do not on their own address the question of whether a legitimate state itself enjoys a moral permission to use or threaten force—a permission that specifically political authorities, unlike practical authorities more generally, routinely claim for themselves (Buchanan 2010, 85). If we are to answer both the subject-compliance question and the state-enforcement question under the heading of a single concept, that concept needs to comprise a “bundle” or “cluster” of Hohfeldian incidents, perhaps incorporating both the moral permission to enforce the law and the moral power to impose duties of compliance on the subjects of a legitimate state (Copp 1999; Ripstein 2004; cf. also Nagel 1991, 35–37; on “cluster-rights” more generally, see Thomson 1990, 54–56).
Two further complexities must be noted before proceeding. The first concerns the practical content of the duty of “obedience” faced by the subjects of a legitimate state. Does legitimacy entail that the subjects of such a state must comply with all of its laws, or might certain forms of noncompliance, such as acts of civil disobedience and conscientious refusal, be consistent with their general duty to obey? The question arises most acutely in the case of (otherwise) legitimate states that have enacted and seek to enforce an unjust law, but where the injustice in question does not seem severe enough to ground a permission for its subjects to oppose official enforcement efforts with violence. Under these circumstances, given both the importance of settling disagreement through law (even at the cost of some injustice) and the interests of individuals in avoiding direct complicity with whatever injustices should result from this process, we may wish to recognize certain (e.g., public and nonviolent) forms of noncompliance as acts of political protest or contestation occurring “within the system” (Pettit 2012, 137), as it were, rather than as challenges to the legitimacy of the system itself (see also King  1992, 90; Rawls 1999, 322–333). With this aim in mind, some theorists have suggested that the obligations of those subject to a legitimate state should be understood as obligations merely “not to take certain measures of resistance to enforcement and punishment” (Applbaum 2010, 227), or perhaps as disjunctive obligations either “to obey the law or engage in civil disobedience” (Lefkowitz 2007, 215), rather than as obligations to obey simpliciter. Those concerned to allow for these possibilities can thus read subsequent references to subjects’ obligations of compliance or obedience as including an implicit permission to engage in certain forms of “intra-systemic” noncompliance with the directives of a legitimate state.
Even if subjects’ obligations of obedience are understood in this more capacious manner, however, it may appear that some laws are so clearly unjust or otherwise groundless that they simply have no reason-giving force whatsoever, and thus that states seeking to apply such laws—far from imposing even a minimal duty on their subjects not to evade or resist enforcement—simply have no legitimate authority over that domain. In Raz’s terms, the directives of a legitimate state might operate to “exclude” or “preempt” the consideration of most but not all potentially competing reasons for action, such that the subjects of such a state have a standing duty to comply that can nevertheless be suspended or disregarded in emergency circumstances or where the state has made a “clear mistake” (Raz 1986, 46, 61–62; see also Copp 1999, 20; Wellman 2005; Stilz 2009, 90–91; Pettit 2012, 136). If this is correct, there may be certain clearly identifiable limits to the scope of a legitimate state’s otherwise general power to impose duties of compliance on its subjects.
Bringing these considerations together, we can understand the judgment that a given state is legitimate to mean that its public officials enjoy a moral permission to use or threaten force to apply the law within its jurisdiction, and that the subjects of such a state fall under a general (if not exceptionless) moral duty at the very least to refrain from engaging in violence or coercion within that jurisdiction (except as explicitly licensed by the state itself), and perhaps also to obey the law or to engage only in public and nonviolent acts of disobedience.
Under what conditions, then, can a state come to enjoy legitimate authority in this sense? In many classical accounts, from ancient Athens through the medieval Christian theologians, the legitimacy of a particular political order was said to derive from its ability to realize a naturally or divinely ordained pattern of social—and, ultimately, cosmic—organization, in which each subject’s fulfillment of his or her predesignated role serves to bring the larger universe into a state of harmony and healthy functioning (for discussion, see Walzer 1965, 151–171; Taylor 2004, 3–22, 143–154). Modern theories of legitimacy, by contrast, are distinguished by their rejection of the notion that persons are born into a particular role or station within a larger natural hierarchy, and by the rather different conception of individuals as equally free to set and pursue their own ends. This article focuses on two distinctively modern families of views about political legitimacy: voluntarist theories, which hold that legitimate authority must derive from the voluntary choices of free and equal individuals, and natural duty theories, which maintain that even free and equal persons have an unchosen or “natural” duty to secure justice, and that this duty in turn requires that they submit to a certain kind of collective authority.
Voluntary authorization is perhaps the most intuitively plausible mechanism by which naturally free and equal individuals could come to be bound by the authority of the state, not least because our freely given consent or agreement is normally thought necessary for us to incur enforceable obligations to other persons or organizations in nonpolitical contexts, at least outside the family and setting aside our duties, such as they are, to God. This was the dominant view of the early modern social contract theorists, of whom Locke is perhaps the most influential representative. “Men being … by nature, all free, equal and independent,” he wrote in his Second Treatise,
no one can be put out of this estate and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society is by agreeing with other men to join and unite into a community…. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature.
But while the early contract theorists largely agreed that voluntary authorization was necessary for a state to acquire legitimate authority, they disagreed about whether it was sufficient. If we consent to be governed by an unjust or tyrannical state, for example, does that act oblige us to obey its commands? Although some contemporary voluntarists maintain that individuals can, in principle, bind themselves to the terms of any kind of contractual agreement (Nozick 1974, 58, 331; see also Simmons 1979, 66–68), the classical consent theorists typically held that natural or divine law prohibits individuals from transferring or “alienating” certain of their rights and powers and so places substantive limits on the sorts of institutions and laws that individuals are at liberty to authorize. In Locke’s view, for example, “a man, not having the power of his own life, cannot, by compact, or his own consent, enslave himself to any one, nor put himself under the absolute, arbitrary power of another, to take away his life, when he pleases” ( 1988, 284). Likewise, Rousseau, while remarking that the social contract by its nature requires “the total alienation of each associate with all of his rights to the whole community” ( 1997, 50), made clear that he was speaking only of those rights—such as one’s rights to property or to be “judge in his own case on some issue” (50)—that individuals enjoy in the state of nature but that the common good requires be ceded to a collective authority via social contract. “To renounce one’s freedom,” by contrast, “is to renounce one’s quality as a man,” and should be viewed as “illegitimate and null, for the simple reason that whoever does so is not in his right mind” (Rousseau  1997, 45). Indeed, even Hobbes—in other respects eager to permit individuals to authorize absolute and potentially arbitrary political authorities—insisted that “a man cannot lay down the right of resisting them that assault him by force, to take away his life, because he cannot be understood to aim thereby at any good to himself” ( 1994, 82), a caveat that led Bishop Bramhall to brand the ostensibly absolutist Leviathan “a rebel’s catechism” (quoted in Curley 1994, xxxviii).
Debates about which rights we may freely transfer to our state might seem wholly idle or academic, however, inasmuch as no known political order has in fact emerged—and none can foreseeably be expected to emerge—through the express and unanimous consent of its subjects. Moreover, even if such unanimous consent had at one point been conferred, it would seem insufficient to generate obligations for the descendants of the original contractors, particularly given the dominant view that “whatever engagements or promises any one has made for himself … cannot by any compact whatsoever, bind his children or posterity” (Locke  1988, 346; see also Rousseau  1997, 45). The early contract theorists’ response to these concerns was to stress that individuals can indicate their voluntary authorization not simply through acts of express or explicit agreement, but equally by offering their “tacit consent” to the state. The crucial question then becomes: What constitutes an act of tacit consent, in this sense? In Hobbes’s view, if a man “live under their protection openly, he is understood to submit himself to the government” ( 1994, 491). For Rousseau, “Once the State is instituted, consent consists in residence; to dwell in the territory is to submit to the sovereignty” ( 1997, 123–124). And in Locke’s widely cited formulation:
Every man, that hath any possession, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land, to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely on the highway; and in effect, it reaches as far as the very being of any one within the territories of that government. ( 1988, 348)
Needless to say, the notion that one could tacitly consent to the authority of a particular state simply by residing in its territory has come in for considerable abuse, most famously in David Hume’s celebrated essay, “Of the Original Contract.” “We may well assert,” Hume remarked, “that a man, by remaining in a vessel, freely consent to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her” ( 1994. 193). The weakness of this notion of consent has led some to conclude that the early contract theorists were not ultimately committed to a voluntarist conception of legitimacy after all (see Pitkin 1965), or alternatively that what they called “tacit consent” was in fact an appeal to the distinct voluntarist principle—considered in greater detail below—that “it would be wrong to accept” particular benefits from the state “while refusing to accept the government’s authority” (Simmons 1979, 90). In either case, we appear to be left with something approximating Hume’s assessment that mere residency cannot plausibly count as an instance of consent, and that if consent is indeed a necessary condition of legitimate political authority, no existing political authorities are legitimate—an implication embraced by many contemporary consent theorists, often dubbed “philosophical anarchists” about political authority (Wolff 1970, 71; see also Smith 1973; Simmons 1979, 191–201, 2001, 102–121; Green 1988).
Others, however, have not been so eager to give up the notion that at least some existing states are legitimate in virtue of the voluntary undertakings of their members. Let us briefly consider three kinds of voluntarist theories that center on voluntary actions or attitudes other than consent or agreement. The first—what we might call the acceptance theory of legitimacy—effectively elevates Weber’s sociological notion of legitimacy to a (necessary and sufficient) normative condition of legitimate rule, such that a state can be said to enjoy a moral right to rule if and only if it is widely believed to enjoy such a right. While few have explicitly defended the acceptance theory, it is suggested both by the once-common concern that advanced capitalist societies are susceptible to a “legitimation crisis,” wherein “the legitimizing system does not succeed in maintaining the requisite level of mass loyalty” (Habermas 1976, 46; see also Taylor 1985, 248–288, 1993, 59–119), and by the widespread tendency among theorists and social scientists alike to elide the distinction between the normative and sociological senses of legitimacy altogether. As an account of the moral grounds of political authority, however, the acceptance theory has widely been seen to suffer from its apparent inattention—in striking contrast to the consent theory considered above—to the circumstances under which acceptance is offered or elicited, and from its failure to incorporate any substantive constraints on the kinds of conduct a “widely accepted,” and hence allegedly legitimate, state may engage in (see, e.g., Simmons 2001, 133–135; for the suggestion that “the acceptance of a justification does not count” toward a state’s legitimacy “if the acceptance itself is produced by the coercive power which is supposedly being justified,” see Williams 2005, 6).
A second voluntarist alternative to the consent account is the fair play theory of legitimacy, according to which the subjects of a particular state, in freely accepting the (nonexcludable) benefits it has made available to them, incur an enforceable obligation to do their part to support its institutions and not to “free ride” on the sacrifices of their fellow members. Whereas early formulations of the theory suggested that the mere receipt of such benefits was sufficient to trigger fairness-based obligations to participate in the beneficial scheme (see Hart 1955, 185), later versions of the theory have held that the beneficiary must freely accept the benefits in order to count as a voluntary participant in the scheme, as opposed to an indifferent or unwilling bystander (Rawls 1964, 10; for discussion, see Simmons 1979, 107–108, 120–122). But while this restriction allows the theory to avoid implying that the involuntary recipients of any beneficial system are obligated to contribute to its continuation (for discussion, see Nozick 1974, 90–95), it renders the theory less obviously able to account for the political obligations of all those subject to a given political order, since not everyone—indeed, perhaps only a very few of those—subject to a particular state can be said to have done anything that might plausibly count as having “freely accepted” its benefits. Faced with this difficulty, Rawls eventually came to view fairness-based political obligations as largely a case of “noblesse oblige,” incumbent only on those who have freely assumed public office, for example, or who, “being better situated, have advanced their aims within the system” (1999, 100), and to suggest that the obligation of citizens generally to comply with their institutions is better understood as following from their natural duty of justice, which I take up in the following section.3
A third way of grounding legitimacy in voluntary undertakings other than consent centers on the ability of those subject to political power to collectively revise their laws and institutions, and to hold their public representatives and officials accountable, over time. According to this family of democratic conceptions of legitimacy, even those who have not expressly or tacitly consented to the rule of a particular state can nevertheless be said to “will” its laws and institutions so long as they each enjoy an equal (positive) opportunity to influence the outcome of collective decisions. As many critics have noted, however, an equal opportunity for contributory influence seems a far cry from what we would ordinarily consider to constitute an act of voluntary authorization, in part because the extent of contributory influence at issue is likely to be negligibly small outside the most intimate decision-making contexts (Kolodny 2014, 210), but perhaps more fundamentally because, absent some prior act of originating consent or other voluntary grant of approval, the decision-making process to which individuals would be contributing their small degree of influence would itself lack a voluntary basis. At most, the democratic conception is able to establish that, if there is to be an authoritative decision-making process, that process must afford an equal opportunity for contributory influence (see Waldron 1999, 101–118); but it does not on its own show that we are required to institute such a process in the first place. For this, we turn to the natural duty theory of legitimacy.
Natural Duty Theories
The leading modern alternative to the voluntarist account—the natural duty theory of legitimacy—holds that individuals’ political obligations derive not from their freely undertaken choices but from their unchosen or “natural” duty to establish and support just institutions. A state is legitimate, in this view, when it either meets a “threshold approximation to full or perfect justice” (Buchanan 2004, 432) or is “as just as is reasonable to expect in the circumstances” (Rawls 1999, 99). It is important to note that few if any voluntarists maintain that all binding moral duties and obligations must have a basis in our voluntary undertakings, and indeed many accept that we have a natural duty to treat others justly and to promote just conditions more generally (see, e.g., Simmons 1979, 147, 2001, 137). But whereas voluntarists typically hold that we can discharge our duty of justice unilaterally, without the mediating assistance of political institutions, natural duty theorists (in the present sense) argue that justice cannot be achieved in the absence of a common legal authority, and thus that our natural moral duties enjoin us to create and support such an authority, so long as it is reasonably just.
It is in Kant’s political philosophy that we first find a sustained defense of the idea that it is not merely difficult or unlikely, but impossible, even in principle, to secure justice outside the state. In Kant’s account, a just condition is one in which all individuals enjoy security in their physical person as well as exclusive control over or access to some spaces and objects in the natural world: rights, in other words, to bodily integrity and to at least some forms of personal property. To this extent, he was largely in agreement with the early contract tradition that came before him. But whereas many of his voluntarist predecessors held that determinate and enforceable property rights could arise through private and unilateral appropriation outside the state, Kant maintained that property rights established outside a framework of law would be at best “provisional” arrangements, inevitably undefined in certain key respects and incapable of binding those allegedly subject to them. As he writes in The Metaphysics of Morals, “It is possible to have something external as one’s own only in a rightful condition, under an authority giving laws publicly, that is, in a civil condition” (Kant , 1996a, 409; for a Kantian argument that even rights of bodily integrity are similarly inconclusive outside the state, see Pallikkathayil (forthcoming).
Kant’s argument begins with the difficulty of even defining rights over the external world outside the context of authoritative legal institutions. In order to determine whether particular individuals have legitimate title to the property they claim for themselves, we must have on hand some account of justice in the acquisition and transfer of external things and of the range of powers a given grant of entitlement affords its possessor. The answers to these questions are by no means obvious, and individuals might, Kant suggests, reasonably disagree about the relevant principles and their practical entailments. Does original acquisition require mixing one’s labor with some part of the natural world, as Locke maintained ( 1988, 288), or might “other signs that cost less effort … be substituted” for this purpose (Kant  1996a, 416–417)? Even if we could agree on a single standard of just entitlements, moreover, there is bound to emerge a wide range of indeterminacies in attempting to apply that standard to particular cases. Unless our shared conception “also contain[s] the principle for choice by which a particular possession … could be determined” under an indefinite range of circumstances (Kant  1996a, 418), individual property claims are almost certain to be the subject of moral, if not also material, conflict.
Still, why not leave private parties to (try to) resolve disputes borne of moral disagreement and indeterminacy for themselves? Kant gives two reasons. First, when I assert a right to some external object, “I thereby declare that everyone else is under obligation to refrain from using that object of my choice” (Kant , 1996a, 409); any claim I make about my rights is thus unavoidably a claim about the reciprocal obligations of all other persons. Yet in the face of disagreement about the content of some particular rights and duties, my assertion of a right to some object in effect claims a kind of privileged status to settle the controversy at hand. Since, for Kant, I have no such special standing vis-à-vis other free and equal persons, my unilateral judgment “cannot put others under an obligation they would not otherwise have” ( 1996a, 416). Second, moreover, even if it were possible for me to obligate others to respect (my interpretation of) my rights, I would still lack true independence from the choices of others, in Kant’s view, as long as my enjoyment of those rights depended on others’ willingness to refrain from transgressing them. If my freedom is not to be merely contingent on the will and disposition of another person, I must be given some “assurance that he will behave in accordance with the same principle with regard to what is mine” (Kant  1996a, 409).
Both of these problems, Kant suggests, can be solved by establishing a common political authority charged with issuing and enforcing a single specification of its subjects’ rights and duties. Public institutions can solve the problem of unilateral interpretation, on the one hand, by granting initial interpretive authority to an impersonal legislative body—what Kant calls an “omnilateral” will ( 1996a, 415)—and assigning the power to adjudicate subsequent disputes to an independent agency capable of representing the interests of all parties to the controversy at hand. The state removes the problem of unilateral enforcement, on the other hand, by sanctioning violations of individuals’ (legally specified) rights with the threat or use of force, thus providing all subjects with the assurance that their rights will not only be made clear to others, but will also be respected in practice (see Kant  1996a, 456–461). Because individuals’ most basic rights cannot be secured without submitting to legal institutions of this general character, there is no affront to their independence in their being nonvoluntarily conscripted into the state; forced subjection to political authority is, instead, merely a “hindering of the hindrances to freedom” (Kant  1996a, 426), and as such requires no voluntary action on the part of its subjects to be binding on them. More than this, since we would stand in the way of others’ external freedom by remaining outside political society, we have a natural duty “to leave the state of nature and proceed with them into a rightful condition” (Kant  1996a, 451–452). To speak of this joint act as a “social contract” is thus, in Kant’s view, simply to describe a “union which is in itself an end (that each ought to have) and which is therefore the unconditional and first duty in any external relation of people in general, who cannot help mutually affecting one another” (Kant  1996b, 290). It is not, as in the voluntarist account, a practical prerequisite of legitimate rule, but simply an “idea of reason” (Kant  1996b, 296), reflecting what individuals would choose if they were to grasp and act from their natural moral duties.
Long relegated to the periphery of philosophical discussions in the Anglophone world, the natural duty theory has received renewed attention since the publication of Rawls’s A Theory of Justice. While latter-day natural duty theorists diverge from Kant on the particulars of what justice requires,4 they nevertheless share his view that, in Rawls’s words, our natural duty of justice
requires us to support and comply with just institutions that exist and apply to us. It also constrains us to further just arrangements not yet established, at least when this can be done without too much cost to ourselves. Thus if the basic structure of society is just, or as just as is reasonable to expect in the circumstances, everyone has a natural duty to do his part in the existing scheme.
For these theorists, as for Kant, our natural duties “apply to us regardless of our voluntary acts” and “are owed not only to definite individuals, say to those cooperating together in a particular social arrangement, but to persons generally” (Rawls 1999, 98, 99). Indeed, it is the unchosen and preinstitutional character of the duty of justice that allows it to extend even to individuals inhabiting a hypothetical state of nature, and to enjoin them to submit to a state capable of defining and enforcing their rights to external things.
This same feature, however, has led some critics to suggest that even if our natural duties require us to support some political authority in some way, they cannot ground an obligation to comply with the institutions of the particular political authority in whose jurisdiction we happen to reside, any more than our natural duty of charity requires us to contribute a certain number of hours or dollars to any particular charitable organization (see Simmons 1979, 154–156, 2001, 137–138, 2005, 166–168). In response to this objection, natural duty theorists have typically stressed two aspects of the duty of justice that distinguish it from other “imperfect” duties, such as the duty of charity. First, whereas charitable aims are in no way undermined by individuals’ exercising their private judgment about exactly when and how to give charitably, respect for others’ rights, if the basic Kantian story is correct, is necessarily incompatible with individuals’ acting on their unilateral judgment about their content; the only way to define and enforce others’ rights without undermining their independence is by creating and complying with an appropriately “omnilateral” authority. Second, as a practical matter, it will not do for those residing in a given spatial location—who “cannot avoid living side by side” (Kant  1996a, 451)—to each pick some reasonably just public authority and comply with its directives; rather, if they are to coordinate their behavior with those around them, and to be assured that the content of their rights is common knowledge among those with whom they regularly interact, they will have to bind themselves to a uniform scheme of rules that applies to everyone in the territory equally. While the natural duty view does not imply that political boundaries must be drawn up in any particular way (a point to which I return in the following section), it does provide a basis for the “territorialization” of political authority in general (Waldron 1996, 1555; see also Waldron 1993, 22–27, Wellman 2005, 39; Quong 2011, 129–130; Stilz 2013).
In sum, the natural duty of legitimacy holds that we are morally obligated, independent of our voluntary acts, to treat others justly in interpersonal relations and to establish and support just institutions more generally; that just treatment requires respecting others’ rights of bodily integrity and personal property; that at least some of these rights cannot be authoritatively specified, and none can reliably be enforced, without the mediation of impersonal legal institutions; and thus that our unchosen duties oblige us to submit to the requisite mediating institutions and comply with their directives, rather than act on our own judgment about what justice requires. At the same time, the natural duty theory places important limits on the authority of particular states, since such a duty cannot require us to comply with institutions that clearly fail to meet the conditions of impersonal rule or to represent the interests of all their subjects—for example, by making what we earlier referred to as “clear mistakes” about the content of individuals’ rights and duties (Raz 1986, 46, 61–62).
One feature that distinguished the natural duty theory from the voluntarist account was the former’s insistence that there need not be, in Simmons’s words, any “specific actual history of morally significant relations between a particular state and each of its subjects” for that state to be legitimate with respect to them (2001, 140); all that is required is that the state—whatever its historical origins—properly define and enforce the basic rights of its subjects, thereby enabling them to discharge their duty of justice through its institutions. As it stands, however, the natural duty view—at least in its leading contemporary formulations—would appear to lend legitimacy to reasonably just states that have been imposed on an unwilling population by force, including those that have come to power by overthrowing a preexisting legitimate regime. Insofar as we think at least some reasonably just institutions can lack legitimacy in virtue of the manner in which they have come into being, we may wish to append a “nonusurpation condition” or other requirement of “procedural justice in the creation of states” (Buchanan 2004, 275) to the natural duty theory of legitimacy, such that certain forcibly imposed regimes would lack legitimate authority over their subjects, regardless of whether their laws and institutions are substantively just.
The difficulty with this maneuver, as many theorists of external legitimacy have pointed out (Altman and Wellman 2009, 12–16; Stilz 2011, 590–599; Ypi 2013, 168–172), is that it appears either to be circular, or else to appeal illicitly to values external to the natural duty account. As Ypi puts it, “Usurpation does not count as usurpation unless an independent criterion has been offered to explain why those who currently occupy a territory are … entitled to do so” (2013, 169). If the criterion that grounds the current state’s authority over its territory is simply that it is reasonably just, then why should the ostensibly “usurping” successor regime—which by hypothesis is also reasonably just—not also enjoy legitimate authority once it has come to power? If, alternatively, the criterion of legitimate rule includes a requirement that states be created through the collective authorization of their subjects, or that they enjoy widespread popular support at any given moment in time, then perhaps we must understand it to be grounded at least partly in broadly voluntarist considerations after all.
In the literature on external legitimacy, although some natural duty theorists have maintained that a state’s right against outside intervention is strictly a function of its ability to secure justice over its territory (see Wellman 2012), many others have attempted to incorporate voluntarist considerations into their conceptions of a state’s (external) right to rule—at the very least, as a way of breaking a tie between equally just competitor regimes. In such “hybrid” accounts—which combine the natural duty theory’s “substantive” aim of realizing just outcomes with voluntarism’s insistence that justice be achieved only through “procedures” that honor our free choices—it would be wrong for one reasonably just state to annex the territory of another reasonably just state, for example, if and for the reason that the subjects of the latter state would prefer to be governed by their current regime rather than an equally just alternative. Likewise, if a territorially contiguous subgroup within a larger legitimate state would prefer to govern itself as an independent political unit and is willing and able to sustain reasonably just institutions of its own, it may, in these views, have a strong claim to secede from the larger state (see Philpott 1995; Copp 1997; Wellman 2005; Lefkowitz 2008; Altman and Wellman 2009). But while hybrid theories of this variety have become commonplace in philosophical discussions of external legitimacy, there has been curiously little work on whether acts of forcible imposition or other violations of broadly voluntarist procedural constraints on the creation of states could undermine a state’s internal right to rule over its subjects (for a gesture at such an account, see Levitov 2015). Thus, it perhaps remains to be seen whether such an approach represents “an unstable hybrid between the natural duty theory and the consent theory of political legitimacy” (Stilz 2011, 600; but see Stilz 2015) or a coherent and attractive attempt to do justice to the full array of values underlying a state’s right to rule (see Simmons 2013).
Normative Legitimacy beyond the State
If, as suggested in the first section, the question of political legitimacy concerns the conditions under which public institutions possess the power to impose obligations of legal compliance on their subjects, together with the right to apply the law with the threat and use of physical force, we may wonder whether those inquiring into the “legitimacy” of international institutions are simply making a category mistake. After all, these institutions—including the United Nations, the World Trade Organization, the International Criminal Court, the International Monetary Fund, and the climate change regime built around the Kyoto Protocol—neither individually constitute nor together comprise a coercive legal state, and indeed they each owe their existence to and largely derive their rule-making and enforcement capacities from particular states and their governments. At the same time, it is difficult to fully assimilate the international political order to the model of voluntary associations within particular states, since it can be very costly for particular states to refrain from joining or to exit at will. Moreover, not all states adequately represent the interests or reflect the choices of their members (whereas no analogous problems arises for individually incurred obligations). And in any case certain international institutions, though created by states, assert “universal jurisdiction” and enjoy the power to sanction nonmembers that violate international rules (for discussion, see Kingsbury, Krisch, and Stewart 2005). At the very least, it does not seem inappropriate to ask certain legitimacy-like questions about the moral status of these institutions: Do they give their addressees content-independent reasons to comply with their directives? Are they justified in imposing costs to incentivize compliance?
While a detailed exploration of these questions is beyond the purview of the present article, I can briefly sketch two prominent approaches to the problem of supranational legitimacy. The first, which we might call the constrained consent view, attempts to preserve the prevailing legal understanding of international institutions as deriving their authority from the consent of their member states, while modifying that idea to account for the partly nonconsensual character of the existing international order, on the one hand, and the nonvoluntary basis of many of our international obligations, on the other. For example, Christiano (2010, 2012) has suggested that we shore up the value of state consent by discounting the consent of nondemocratic states and invalidating consensual agreements made under conditions of grossly unequal bargaining power, while at the same time allowing that international institutions that pursue certain “morally mandated aims” (2012, 388–390) may bind all states regardless of their consent. However, given that virtually all existing international institutions were created under unequal bargaining conditions and at least in part by undemocratic states, and given the urgency of the various morally mandated aims that may require states to submit to some form of global governance, we may reasonably wonder whether international institutions, in this account, will ultimately derive whatever legitimacy they enjoy more or less entirely from the unchosen duties of states and their subjects, rather than from their voluntary undertakings.
In light of these concerns, some theorists have argued that we would do better to conceive of international legitimacy as a matter of accountability without consent. According to this alternative conception, although consent of any sort is neither necessary nor sufficient for the legitimacy of morally acceptable international institutions, consent-like mechanisms of accountability may nevertheless be required by considerations of procedural fairness or may be instrumentally necessary for such institutions to successfully discharge the morally mandated aims that ultimately underwrite their legitimacy (see Buchanan and Keohane 2006; Buchanan 2010; see also Grant and Keohane 2005; Woods 2003). While there is broad disagreement about whether accountability, in the relevant sense, requires something approximating global electoral democracy (Goodin 2007; Abizadeh 2008; for skeptical discussion, see Dahl 1999; Cohen and Sabel 2005; Beitz 2011), or whether the values that might make democracy a necessary condition of state legitimacy can (only) be served by nondemocratic institutions on the global level (Buchanan and Keohane 2006), most discussions concur that existing accountability mechanisms are in many ways inadequate, particularly in the extent to which they effectively represent the interests of globally weak states and their members. Still, even if, as a result of this “accountability gap” (Keohane 2003), international institutions currently lack legitimate authority in our sense, those subject to their power may nevertheless have weighty, content-based reasons to comply with their directives, as well as general duties to work to strengthen and reform the existing international order in the absence of feasible superior alternatives.
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(1) While some theorists have insisted on a distinction between “duties,” seen as owed to persons generally and as binding irrespective of one’s past voluntary acts, and “obligations,” understood as owed to particular agents as a result of one’s freely undertaken commitments (see Hart 1958, 100–105; Brandt 1964; Simmons 1979, 11–16; Rawls 1999, 97–99), I use these terms interchangeably to refer to binding requirements to act or refrain from acting in particular ways or for particular reasons, allowing that some such requirements (e.g., “imperfect” duties) will underspecify the precise course of action one must take to be compliant in a given case.
(2) Note that while Hobbes, Locke, and Rousseau maintain that everyone must initially agree to form a state in order for it to be legitimate with respect to them, they also suggest that only the consent of a majority of that initial group is necessary to authorize particular governments and laws (see Hobbes  1994, 110; Locke  1988, 331–333; Rousseau  1997, 124), although Locke allows that a majority may opt for super-majoritarian decision procedures at this stage ( 1988, 333).
(3) George Klosko has argued that “mere receipt” may be sufficient to generate fairness-based obligations, provided (inter alia) that the benefits in question are “indispensable for satisfactory lives,” understood to include “crucial benefits concerning physical security, notably national defense and law and order, protection from a hostile environment, and central public health matters” (2005, 6–7; see also Klosko 2004). Like the “free acceptance” formulation, this way of restricting the scope of the principle appears to allow the theory to account for the political obligations of citizens generally, without at the same time assigning obligations of fair play to the beneficiaries of any cooperative scheme. Yet insofar as it is grounded in the independent moral importance of providing various public benefits, rather than in the voluntary acts of their recipients, Klosko’s theory is perhaps better understood as a version of the natural duty approach considered below, with considerations of fairness playing a role in accounting for the content but not the basis of our obligations (for discussion, see Simmons 2005, 189–190).
(4) Two differences in particular seem worth noting. First, whereas Kant believed that some monarchical states could be fully legitimate, contemporary natural duty theorists overwhelmingly hold that justice requires that collective decisions be made via democratic institutions of some sort: paradigmatically, by a majoritarian legislature elected under conditions of universal enfranchisement and “one person, one vote.” Second, while Kant notoriously rejected a popular right of revolution against an unjust regime—holding that subjects may “oppose injustice by complaints but not by resistance” ( 1996a, 462)—contemporary natural duty theorists tend to allow that support is no longer owed to a state that has fallen beneath a threshold approximation to the full demands of justice, and that ordinary citizens are in a position to recognize and respond to clear instances of injustice.