John Locke Essay, Research Paper

Mark

Ethics, July 1999 v109 i4 p739

Justification and Legitimacy(*). (philosophy of the state) A. John

Simmons.

Abstract: Different arguments are needed to show that a state is justified and that it is

legitimate. Justifying the state is associated with the treatises of 18th-century philosophers.

The Lockean approach to this issue captures features of institutional evaluation that the

Kantian approach does not. Standard justifications of the state are offered to those

motivated by objections to states.

Full Text: COPYRIGHT 1999 University of Chicago

In this article I will discuss the relationship between two of the most basic ideas in political

and legal philosophy: the justification of the state and state legitimacy. I plainly cannot aspire

here to a complete account of these matters, but I hope to be able to say enough to motivate

a way of thinking about the relation between these notions that is, I believe, superior to the

approach which seems to be dominant in contemporary political philosophy. Today, showing

that a state is justified and showing that it is legitimate are typically taken to require the very

same arguments. I will argue that this contemporary stance obscures the difference

between two central ways in which we should (and do) morally evaluate states, and it

generates confusions about other serious practical issues, such as those surrounding our

moral obligations to comply with law.

I begin (in Secs. I and II) with brief discussions of the ideas of justification and legitimacy

and with an attempt to capture what ought to be most central in our concerns about these

ideas. I turn then (in Sec. III) to two basic ways of thinking about the relation between

justification and legitimacy that I want to distinguish: what I will call the Lockean and the

Kantian approaches.(1) Next (in Sec. IV), I argue that the minority Lockean approach to

this issue captures essential features of institutional evaluation that the majority Kantian

approach does not, and I add (in Sec. V) brief mention of one further complication facing

any adequate account of political evaluation.

I

The project of “justifying the state” is one that we tend to associate with the great political

treatises of the seventeenth and eighteenth centuries, and especially with those of the

philosophers in the social contract tradition, such as Hobbes, Locke, or Kant. We study

these historical texts in large measure because of their perceived contributions to a

justificatory project that many feel confident in claiming as “the central task of social and

political philosophy.”(2) But for all this, we are not always as careful as we might be in

specifying exactly what this justificatory project amounts to or how the justifications offered

differ from other kinds of institutional evaluation defended within the same works. In order

to clearly distinguish what I take to be two importantly different dimensions of these

philosophical enterprises, I want to begin with some very general thoughts about practical

justification.

Justifying an act, a strategy, a practice, an arrangement, or an institution typically involves

showing it to be prudentially rational, morally acceptable, or both (depending on the kind of

justification at issue). And showing this, in standard cases, centrally involves rebutting

certain kinds of possible objections to it: either comparative objections–that other acts or

institutions (etc.) are preferable to the one in question–or noncomparative objections–that

the act in question is unacceptable or wrong or that the institution practices or sanctions

wrongdoing or vice. Justification, we might say, is in large measure a “defensive” concept, in

that we ask for justifications against a background presumption of possible objection:(3) so

we try to justify moral principles by showing them to be true or valid, to defeat the

objections of the skeptic or nihilist; we justify coercion against a background general

presumption in favor of liberty; we justify our actions in legal settings against concerns about

apparent or prima facie illegality; and so on.

A moral theory that is maximizing, that requires that acts or institutions (etc.) be the best

possible (in the circumstances) in order to be justified–such as maximizing forms of

utilitarianism–will require for justification showing that all comparative moral objections can

be met (i.e., it produces what I have called “optimality justifications”(4)). Nonmaximizing

moral theories, by contrast, may allow that all acts or institutions which avoid breaching

applicable moral rules are justified, even if some are in different respects preferable to

others (i.e., they produce what we can call “permissibility justifications”). Kantian and

traditional natural law theories are often understood in this way, so that justification requires

only a showing that all noncomparative objections can be met. If an act or institution is

consistent with God’s commands, passes the “consistent willing” test of the Categorical

Imperative, or avoids infringing anyone’s rights, this by itself may move it across the

threshold of justifiability.(5)

But what is it to justify the state? “Justifying the state,” with its all-inclusive tone, might at

first be thought to have to involve showing that every possible state is immune to any

systematic noncomparative moral objections. Or it might be taken to involve showing that

any possible state is preferable to (or as good as) any possible condition of statelessness. If

we understand “justifying the state” in either of these senses, then justifying the state is, I

think, impossible. Many states are and have been hopelessly immoral and extraordinarily

dangerous places to live. Even those who find Hobbes’s arguments otherwise persuasive

seldom agree with his (apparent) contention that life in any kind of state, no matter how

violent or oppressive, is to be preferred to any kind of life outside the state.(6) On this point

some variant of Locke’s (opposed) position seems correct: life in a pure state of nature or in

some nonstate cooperative arrangement, subject though it might be to all of the

incommodities of insecurity, lawlessness, and vulnerability such a state could be expected to

involve, is still a life to be preferred to life in a state ruled by a cruel and unchallengeable

tyrant, where injustice is systematic or wildly random and irresistible.(7)

If `justifying the state’ is to identify any plausible enterprise in political philosophy, then it

should at least be taken also to be accomplished if we can show that one or more specific

kinds of state are morally defensible (comparatively or noncomparatively).(8) So, I suggest,

we can justify the state by showing that some realizable type of state is on balance morally

permissible (or ideal) and that it is rationally preferable to all feasible nonstate

alternatives.(9) In the course of such a justification we will typically argue that certain

virtues that states may possess or goods they may supply–such as justice or the rule of

law–make it a good thing to have such states in the world.

Such a justification, of course, will provide some comfort to those who have chosen to live in

a justified state: their choice wasn’t a dumb choice–the state is a good bargain–nor was it a

choice to participate in an immoral arrangement. But most of us don’t choose the states in

which we live, and almost none of us chose to live in a state (as opposed to something else).

It seems plain that standard justifications of the state are offered not to happy participants in

states but to those moved by certain kinds of objections to states. The background objection

against which such attempts to justify the state are intended to be mounted must be

understood to come from the anarchist, who denies that any state can be morally and

prudentially justified.(10) A common anarchist view, of course, is that anything that is

sufficiently coercive (hierarchial, inegalitarian, etc.) to count as a state is also necessarily,

and for that reason, morally indefensible and prudentially irrational. States necessarily do

and sanction wrong, or are necessarily in other ways practically inferior to life without the

state.(11) Justifying the state would involve showing that these anarchist views are false.

And the justification of the state will be stronger as the kinds of states that are justified are

more numerous or more like past or existing states–with the strongest possible justification

of the state then being of the (unsuccessful) Hobbesian sort.

One can see a contemporary version of this conception of “justifying the state,” for instance,

in Robert Nozick’s well-known political philosophy. For Nozick, “the fundamental question of

political philosophy … is whether there should be any state at all. Why not have anarchy? …

If one could show that the state would be superior even to [the] most favored situation of

anarchy …, this would … justify the state.”(12) Of course, Nozick does not (attempt to)

justify the state in an especially strong fashion, for he goes on to argue (in pt. 1 of his book)

that only the minimal state is justified; any more extensive state than that, Nozick claims (in

pt. 2), cannot be justified. Nozick argues only for the justification of the minimal state; but he

does so precisely by trying to show that such a state could arise and function without

violating anyone’s rights in the process–thus rebutting the anarchist’s objection that even the

minimal state would necessarily do or sanction wrong (i.e., would violate rights) and so

could not be morally justified–and by trying to show that such a state would arise naturally

(guided by an “invisible hand”) from any state of nature–thus establishing, against the

anarchist, that the minimal state is prudentially superior to nonstate alternatives (i.e., that it is

desirable to have states).

II

While Nozick is not as clear about any of this as we might wish, it is important to see that

this justification of the state is not for him the only dimension of the evaluation of states.(13)

Indeed, given Nozick’s orientation toward historical (or “pedigree”) evaluations of

institutional arrangements, his justification of the state in terms of a purely hypothetical

account of a minimal state’s genesis might seem a complete non sequitur.(14) Showing that

it is possible for a (certain kind of) state to arise and function without immorality and that

having such a state would be a good thing–that the state is justified, on Nozick’s model–is

obviously not the same thing as showing that a particular actual state (even of that kind) did

in fact arise and does in fact function in morally acceptable ways. Rather than having

located a deep confusion in Nozick’s thought, however, I think this observation points the

way to a quite basic distinction between justification and legitimacy. For notice that Nozick

also defends an independent account of state legitimacy. Showing that a particular state is

legitimate appears to be for Nozick a function of showing that the actual history of the

state’s relationship to its individual subjects is morally acceptable).(15)

It is Locke’s political philosophy, of course, that provides the model for this sort of distinction

between political justification and legitimacy (though Locke himself never uses these terms

to describe the distinction). But Locke, in my view, is in certain ways clearer about the

distinction than is Nozick. For Locke, remember, “no one can be put out of [the state of

nature] and subjected to the political power of another without his own consent.”(16)

Political power is morally legitimate, and those subject to it are morally obligated to obey,

only where the subjects have freely consented to the exercise of such power and only

where that power continues to be exercised within the terms of the consent given. The

legitimacy of particular states thus turns on consent, on the actual history of that state’s

relations with its subjects. But Locke also offers us (especially in chap. 9 of the Second

Treatise of Government) a different and quite general argument for the moral and prudential

preferability of states ruled by limited governments to life in the state of nature. This other

argument is plainly addressed to those who maintain that the state in any form is morally or

prudentially inferior to life without the state. Notice that in justifying the (limited) state–by

rebutting the anarchist objection–Locke says nothing about the actual consent that is

required to legitimate a particular state with respect to its subjects.(17) That the limited state

is justified–that having limited states (governments) is on balance a good thing and that we

have good reason to create them–does not appear for Locke to show that any particular

limited state is legitimate, that any state (government) has the right to rule over any or all

persons within its (claimed) domain (i.e., the right to occupy the position of authority).(18)

This Lockean account utilizes one standard moral conception of state legitimacy,(19) and it

is this conception of “legitimacy” that I will hereafter have in mind when I use that term. A

state’s (or government’s) legitimacy is the complex moral right it possesses to be the

exclusive imposer of binding duties on its subjects, to have its subjects comply with these

duties, and to use coercion to enforce the duties. Accordingly, state legitimacy is the logical

correlate of various obligations, including subjects’ political obligations.(20) A state’s

“legitimacy right” is in part a right held specifically against the subjects bound by any

state-imposed duties, arising from morally significant relations–in Locke’s case, consensual

relations–between state and subject. It follows that “on balance” state legitimacy may be

complete or partial, depending on whether such relations hold with all or only with some of

those against whom the state enforces the duties it imposes (though the state is, of course,

either fully legitimate or fully illegitimate with respect to each individual under its rule).

I do not here take up at any length questions about how state legitimacy is related to

governmental legitimacy; I focus principally on questions about state legitimacy.

Governments can presumably be illegitimate even where the states they govern are not. But

state and governmental legitimacy seem not to be independent of one another, since an

illegitimate state could not, I think, have a legitimate government. On the Lockean model this

is easily explained. According to this model, states (”civil societies” or “commonwealths,” in

Locke’s parlance) earn their legitimacy by virtue of the (unanimous) consent of their

members, a consent that transfers to the collectivity those rights whose exercise by a

central authority is necessary for a viable political society. Governments are legitimate only

if they have been entrusted by the state (society) with the exercise of those same rights.(21)

So while a legitimate state might have an illegitimate government (one that, say, acquired its

power by force rather than by trust), an illegitimate state could never have a legitimate

government since illegitimate states do not possess the rights, transferred to them by their

subjects’ consents, that must be entrusted by a state to a government in order to legitimate

that government.

There are, of course, many other conceptions of state legitimacy, quite different from the

strong Lockean conception just described. Some theorists have advocated weaker moral

notions of legitimacy, according to which legitimacy is a mere liberty right or “justification

right”(22)–a fight which correlates with no other parties’ obligations (e.g., with obligations to

obey the law or to refrain from rival attempts to impose duties). Such notions of legitimacy,

as we shall see, sharply diminish the argumentative distance between accounts of state

justification and accounts of state legitimacy.

There is also a host of conceptions of state legitimacy–those used in ordinary political

discourse and those advocated by various social scientists and political theorists–whose

connections to either of the aforementioned moral conceptions of legitimacy are not

immediately clear. For instance, we sometimes count states as legitimate if they achieve

certain kinds of international recognition–if they are “accepted into the community of

nations”–or if they remain stable over long periods of time, exercising effective or

unchallenged control over a fixed territory. Or we might call a regime legitimate that was

simply “lawful,” in the sense that it came to power and continues to govern according to the

generally accepted rules of its state, or if it refrained from the persecution or deliberate

impoverishment of its subjects (or of particular groups of subjects).(23) Or we might, with

the majority of contemporary social scientists (and following Weber), call “legitimate” those

regimes that are accepted or approved of by their subjects in certain distinctive ways.

The satisfaction of any of these criteria might, of course, be said to confer on a regime the

kind of moral legitimacy we have been discussing. But while concerns about a state’s

stability or lawfulness or about institutional racism and persecution are clearly moral

concerns, they are concerns bearing more obviously on what I have been calling the state’s

justification than on its legitimacy. That a state is stable and lawful and refrains from

persecution shows that it is good (or, at least, not bad) in certain ways, but it does not

obviously show that the state has the kind of special moral relationship with any particular

subjects that gives it a right to rule them. And international recognition, considered alone,

plainly tracks the moral legitimacy of states at best irregularly. What, though, of the last,

Weberian conception of legitimacy? Its popularity and its apparent similarity to the Lockean,

consent-based conception of legitimacy warrants a slightly more extended consideration of

this proposal.

One proponent of the Weberian view, Charles Taylor, distinguishes between two senses of

“legitimacy” as follows. On his preferred use, legitimacy “is meant to designate the beliefs

and attitudes that members have toward the society they make up. The society has

legitimacy when members so understand and value it that they are willing to assume the

disciplines and burdens which membership entails. Legitimacy declines when this willingness

flags or fails.”(24) Worries about the possibility of a contemporary “legitimation crisis” are

often understood in this way–that is, in terms of the special difficulties faced by today’s

industrial democracies in maintaining or generating the attitudes of allegiance, loyalty, or

identification on which their “legitimacy” (in this first sense of the word) depends.(25) Taylor

contrasts legitimacy in this first, “attitudinal” sense with what he calls “the seventeenth

century use of the term not to describe people’s attitudes, but as a term of objective

evaluation of regimes.”(26)

The majority of the social scientists writing about legitimacy during the second half of this

century have, like Taylor, identified legitimacy with members’ positive beliefs, attitudes,

perceptions, or other “favorable orientations” toward their society or its regime. In this, as I

have noted, they mostly take themselves to be following Weber, who famously attempted to

analyze the legitimacy of power solely in terms of people’s belief in its legitimacy.(27)

The most familiar criticism of this analysis of legitimacy points to its quite obvious

circularity. But this is not a particularly difficult problem to repair, for Weber can be easily

corrected to say more carefully (as he himself sometimes does) that the extent of a regime’s

legitimacy is equivalent to the extent to which its subjects regard its directives as obligatory

or authoritative, or regard the regime as lawful, exemplary, morally acceptable, or

appropriate for the society. Legitimacy is then just understood as the “reservoir of loyalty on

which leaders can draw,”(28) the subjects’ beliefs in the regime’s authority (or their feelings

of allegiance, trust, or other attachment) that will typically produce compliance and support

(or at least guilt feelings on occasions of noncompliance and nonsupport).(29)

There are, however, more serious problems facing attitudinal accounts of legitimacy. One is

that such accounts make judgments of legitimacy turn out to be about the wrong thing. Just

as subjectivist accounts of moral judgment implausibly understand my judgment that an act

is wrong, say, as a statement that I have negative feelings about that act–so that the “moral

judgment” oddly turns out to be about me instead of about the act–so attitudinal accounts of

political legitimacy make judgments of legitimacy too much about subjects and too little

about their states. To call a state legitimate is surely to say something about it, about the

rights it possesses or the scope of its authority. The attitudes of a state’s subjects can at best

be part of what argues for its legitimacy, not that in which its legitimacy consists.

It will not do, however, in response to this problem, to simply shift our focus onto the

properties of the state that produce feelings of allegiance or support, so that legitimacy can

be redefined as “the capacity of the system to engender and maintain the belief that the

existing political institutions are the most appropriate ones for the society.”(30) For there is a

second and much deeper problem with all accounts of legitimacy that thus centrally refer to

subjects’ beliefs or attitudes: no plausible theory of state legitimacy could maintain that a

state has the rights in which its legitimacy consists–rights to exclusively impose and

coercively enforce binding duties on its subjects–simply in virtue of its subjects’ feelings of

loyalty or its own capacities to generate such feelings. Surely by now the history of human

oppression has taught us how often people come to feel obligated toward and believe in the

rights of those who simply wield over them irresistible power, with no more moral authority

over them than such power yields. Attitudinal accounts of state legitimacy appear to

disregard such lessons. On such accounts states could create or enhance their own

legitimacy by indoctrination or mind control; or states might be legitimated solely by virtue of

the extraordinary stupidity, immorality, imprudence, or misperceptions of their subjects.

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