(I’ve switched the last two posts around, so that David E’s response to the chapter 6 discussion is now beneath David L’s chapter 7 discussion. Please don’t overlook the former. SCM)
In chapter VII, ‘Authority and Normative Consent,’ Estlund takes up the challenge of justifying one agent’s authority over another. X enjoys a morally justified claim to authority over Y if and only if the mere fact that X instructs Y to f provides Y with a (prima facie or defeasible) moral duty to f. Estlund seeks to offer a novel justification for authority, which he labels normative consent. On this view, if an agent acts wrongly in refusing to consent to another’s authority, then that refusal is void and the situation is as it would have been had the agent consented to the other’s authority. For example, if for some reason I act wrongly in refusing to consent to your determining how I should spend my afternoon, then my failure to consent is null and the situation is as if I had consented – or in other words, I have a duty to acknowledge your authority by spending my afternoon as you direct me to do.
I focus here on the three main tasks Estlund undertakes in this chapter: (1) making the case for normative consent as a (but not necessarily the only) genuine source of authority; (2) a defense of normative consent against some objections likely to be made to it; and (3) a brief description of how a normative consent argument for authority might encompass (and so improve?) some other arguments for authority extant in the literature on political obligation.
Estlund’s first argument in support of normative consent rests on an appeal to the value of symmetry. He characterizes (libertarian) consent theory as holding that “without consent there is no authority (the libertarian clause), but unless there are certain nullifying conditions (the nullity proviso), consent to authority establishes authority (the authority clause” (119). Consent theory contain an asymmetry, since consent creates authority only if it meets certain conditions, such as being free and informed, but no such conditions, indeed no conditions at all, hold in the case of non-consent. What explains this asymmetry? One possibility, which Estlund labels hard-line consent theory, is that the conditions on consent are there to ensure that putative acts of consent reflect an agent’s will – and that this is the only justification for putting any conditions on what counts as genuine consent (i.e. the sort that actually generates a duty to others). Another possibility, which Estlund calls moderate consent theory, is that in addition to will-tracking nullifying conditions (as Estlund calls them) there are also external normative nullifying conditions. The latter render a putative act of consent void in some cases because it would be morally wrong for the agent to consent to f in this case (and perhaps in all cases of this type), even if that act genuinely expresses his will. Insofar as they endorse the inalienability of certain rights, the impermissibility of selling oneself into slavery, etc., most consent theorists appear to endorse moderate consent theory. But if consent is sometimes null because it is wrong, why is it not also the case that non-consent is sometimes null because it is wrong? Estlund concludes that “a condition such as the one I propose, in which non-consent is null if it is wrong, now has some standing on grounds of symmetry” (123).
Estlund attempts to buttress support for normative consent as a genuine source of authority by giving an example in which he (and hopefully the reader) believes that non-consent is null because it is wrong, and therefore the non-consenting agent has those duties he would have had he actually consented. Here is Estlund’s example, which I will henceforth refer to as the airplane crash example, and his analysis of it:
“Consider a flight attendant who, in an effort to help the injured after a crash, says to Joe, ‘You! I need you to do as I say!” Let us not yet suppose this puts Joe under her authority. Even if it does not, Joe would (I hope you agree) be morally wrong not to agree to do as she says (at least under a significant range of circumstances). Once that is granted, the question remains whether by refusing, wrongly, to agree to do as she says, Joe has escaped the duty to do as she says. Consent theory, with its libertarian clause, draws a libertarian conclusion: Joe may have various obligations in such a terrible scenario, but the flight attendant’s instructions have no authority over him. Why? Because, lucky for Joe, he is despicable. If you find consent theory’s implication implausible here, as I do, then you think that Joe has not escaped the authority by refusing to consent. So he is under authority even without having consented. In this case, non-consent to authority is null. If this is granted, consent theory must be rejected” (124).
Estlund considers the following response to his example, and the conclusion he draws from it: Joe ought to do as the flight attendant directs because she “is well positioned and knowledgeable enough to supply the most effective plan to aid the crash victims” (124). But Joe is not morally obligated to obey her commands when they are wrong (or sub-optimal). [Lefkowitz: Indeed, Joe may not be morally obligated to obey her commands if it is reasonable for him to believe they are wrong (or sub-optimal), even though they are not.] Estlund offers a twofold response: the duty to defer to a practical authority – in this case, Joe’s duty to obey the flight attendant – is rarely absolute. If the flight attendant’s commands are clearly and egregiously wrong, Joe may or must act contrary to them. However, where genuine authority exists, it creates a duty to obey even in a range of cases where the authoritative instruction diverges from the morally best or right course of action. Consider, then, the following variation on the airplane crash example: “Suppose that she [the flight attendant] were to order Joe to grab the bandages from the remnant of the overhead compartment. Joe correctly believes that it would be wiser to secure whatever fresh water can be found first. Does this exempt Joe from the duty to obey her command? On the contrary, unless the stakes were especially high, it would be wrong for Joe to decline to obey on that ground. The flight attendant may be making a mistake, but she is in charge. This is characteristic of authority, and different from merely following the leader when and only when she is leading correctly” (125).
Having made his case for normative consent, Estlund briefly considers this question: When is an agent entitled to treat another in a way to which that person should consent, but has wrongfully refused to do so, and in what cases must an agent forbear from treating another in a way to which that person should consent if she wrongfully refuses to do so? The example Estlund gives of the latter is the persistent refusal of one person in a marriage to consent to sex with the other (in the absence of a strong reason for doing so, such as ill health). This discussion and example are fascinating, but since Estlund concludes that in the case of authority wrongful non-consent entails those rights and duties that would have existed had consent occurred, I skip over it here. I also skip over the opportunity objection to normative consent, which Estlund quickly and (I believe) rightly dismisses.
I turn, then, to the criticism of normative consent that has likely been foremost in most readers’ minds from the beginning of this summary, namely that whatever makes it wrong for X not to consent to Y’s authority suffices as a justification for Y’s authority over X. Normative consent is an extra wheel, adding neither justificatory nor explanatory power to a theory of authority that rests on whatever it is in a particular case that makes non-consent to authority wrong. Estlund labels this the Direct Authority Objection: “Whenever it would be wrong to consent to authority in light of certain facts, those same facts already establish authority independently of anything about the duty to consent” (129).
[Warning: I’m not certain that I have correctly represented Estlund here – since the relevant section in the book is hardly longer than my summary, the reader may want to consult it directly. But here goes…]
Estlund replies by arguing that just because certain facts (moral considerations) make non-consent to authority wrong, it does not necessarily follow that those facts by themselves entail authority. He then points to a similarity between the normative consent account of authority and Rawls’ contract account of justice and Scanlon’s contract account of rightness (or wrongness). The latter distinguishes between the property of wrongness, characterized in terms of being reasonably rejectable, and wrong-making properties, characterized in terms of those features of the world an agent can appeal to as a reason to reject a proposed principle for the general regulation of behavior. Likewise, Estlund appears to suggest, we can distinguish between authority facts, such as normative consent, and non-authority facts, such as those considerations in virtue of which it would be wrong not to consent to another’s authority.
Once again, Estlund offers an example to buttress his claim (henceforth the car care example): “Suppose you think that there is no authority without consent. Still, suppose I ask you, a passenger in my car, if you will do as I ask (within reason) with respect to caring for the car. If you refuse to consent, the refusal is wrong, or so I hope you will agree. Stop the story before I try to claim that any authority enters. The important point is that you are faced with the issue about the permissibility of accepting new authority even if you believe that there is, at least so far, no authority present to determine the matter. So the passenger’s reasons are not, as the objection claims, the authority reasons themselves. It might be that it would be extremely rude to refuse, a rudeness that is bad enough to be morally wrong. Or there might be other considerations that require you to consent to my authority” (129).
Estlund takes the foregoing discussion to show “how there could be authority resulting from normative consent even if there were not already authority on independent grounds” (130). He then considers a variation of the direct authority argument according to which in every case where normative authority provides a justification for authority, authority is also justified on some other grounds. It is difficult to know whether this claim aptly describes the world, and Estlund concludes that “since it is not clear how this coincidence could be explained by the objector, I believe he bears the burden of proof” (130).
Is normative consent nothing more than a heuristic for identifying our natural duties? What connection, if any, does it retain to the idea central to consent theory, namely that an individual’s liberty may be constrained only when he or she voluntarily agree to those constraints? Estlund suggests that normative consent gestures in that direction, since it implies that agents must defer to another’s authority only in those cases where they have agreed to do so or it would be wrong of them not to do so. At the same time, it explicitly recognizes the moral limits of consent and the individual freedom it is meant to protect.
Estlund concludes his discussion of normative consent by suggesting that it can unify a number of alternative accounts of authority extant in the literature – or at least encompass them within an overarching account of justified authority. The basic idea is that what has heretofore been thought to directly justify authority is better conceived of as an explanation for why non-consent to authority would be wrong, and so is void. Estlund makes his point by briefly considering two frequently defended bases of political authority, which he labels urgent task theory and the fair contribution argument.
Roughly, urgent task theory is the idea that the achievement of some morally mandatory end or state of affairs requires deference to authority. Characterizing the sort of urgent task that suffices to justify authority may be difficult, however. It cannot be a simple matter of the task’s value, since there are very valuable goals or state of affairs that we are not morally required to bring about. Rather than treat urgency as directly giving rise to justified authority, we should instead view it as a reason why, in some cases, an agent would act wrongly in refusing to consent to another’s authority.
Similarly, Estlund claims that placing the fair contribution (or fair play) argument in the context of normative consent helps bridge the gap between a claim about the costs and benefits of a given cooperative scheme and those circumstances in which receipt of benefits gives rise to a duty to do one’s fair share. For instance, by addressing this question through the lens of normative consent, we may come to recognize that agents have a duty to defer to an authority making a good faith effort to distribute the benefits and burdens of cooperation fairly, even if his efforts fall short to some degree.
Estlund nicely captures the alleged advantage of placing urgent task theory and the fair contribution argument under the umbrella (to use his phrase) of normative consent theory when he writes: “normative consent theory asks which cases… are such that it would be wrong not to consent to authority if one’s consent were solicited. The advantage of this step is that it is often easier to see that such a refusal to consent would be wrong than it is to grant that, lacking consent, it would be wrong to disobey commands” (133).
Challenges to Estlund’s account of Normative Consent:
I begin with Estlund’s positive case for normative consent as a genuine basis for practical authority. That case, remember, has two prongs: first, an appeal to the value of symmetry – now both consent and non-consent are conditional on the putative act being morally permissible – and second, the intuitions generated by the airplane crash example. Neither of these strikes me as compelling. Symmetry may contribute to the beauty of certain things (e.g. human faces), but I do not see why or how it adds to the plausibility of a moral view, or indeed of any philosophical argument. So, unless Estlund can provide a reason why we should think a symmetrical theory of consent more compelling or more likely to be true than an asymmetrical one, the presence or absence of symmetry is uninteresting. Of course, if there are independent grounds for thinking that both consent and non-consent are conditional on the putative act of (non-) consent being morally permissible, so that if follows that the best account of consent is symmetrical in this respect, then that may be nice (aesthetically pleasing). Note, however, that the symmetry would simply follow from the arguments that did all of the justificatory work – it would not contribute at all to the theory’s justification.
With the airplane crash example, Estlund attempts to provide an independent justification for making non-consent conditional on the moral permissibility of doing so. I am resistant to drawing the conclusion he draws from it, however. Suppose (as I believe to be the case) that Joe has a natural (i.e. non-voluntary) samaritan duty to aid the injured passengers, and good reason to believe that the flight attendant knows better than he the specific ends he should pursue in discharging this duty (e.g. which injured passengers to help first) and the most effective and/or efficient means to those ends (e.g. what exactly he should do to aid the injured passengers). Some will claim that these facts suffice to justify the flight attendant’s authority over Joe, and his duty to obey her commands, even if some of them are sub-optimal with respect to Joe’s fulfilling his samaritan duty. This is Raz’s view, for instance – see his defense of the normal justification thesis (of authority) in The Morality of Freedom and elsewhere. Others may claim that while the aforementioned facts entail that Joe ought to do as the flight attendant says, his reasons for doing so have to do with the content of her commands, and not the fact that she issues them. A defender of this view will likely attribute what Estlund calls leadership to the flight attendant (vis-à-vis Joe), but not authority. Estlund’s variation on the airplane crash example, where the flight attendant commands Joe to grab bandages rather than secure fresh water, though in fact that it is the sub-optimal course of action, is intended to generate the intuition that the flight attendant enjoys authority over Joe, and not mere leadership. But why is leadership not enough in this case? That is, why shouldn’t Joe simply make a good faith effort to determine what the morally optimal course of action is? He might give some weight to the flight attendant’s directive, but ultimately he relies on his own assessment of which action is favored by the balance of reasons. Suppose Joe were to secure fresh water, but it turned out that retrieving the bandages was the morally better act. If it were clear that Joe had made a good faith effort to determine the best course of action, would we really blame him for not deferring to the flight attendant’s judgment? Does Joe act despicably by not acknowledging the flight attendant’s authority? Perhaps we would blame him if Joe knew nothing about first aid or crash survival, and dismissed without thought the flight attendant’s admonition. But then Joe is not making a good faith effort to determine what morality requires of him in this situation.
Regardless of whether the epistemic advantages the flight attendant has over Joe entails that he has a duty to obey her or merely to give significant weight to her judgment in reaching his own conclusion about which action is best, I do not see the need to introduce the mechanism of normative consent. The reasons that Estlund appeals to in order to explain why Joe’s non-consent is null, and so why the normative state of affairs is as it would have been had Joe consented, suffice by themselves to explain why Joe ought to do as the flight attendant directs (and, for someone like Raz, because she directs him to act). Obviously this is the direct authority objection to normative consent – but as I will explain shortly, I do not find Estlund’s response to that objection compelling.
At least one other variation on the airplane crash example is worth considering. Suppose that Joe is just as knowledgeable in the relevant respects as the flight attendant, or even more so, but he recognizes that disputing her commands will cause confusion among the other surviving passengers able to assist the injured, with the likely end result being a reduction in the overall aid provided to those who need it. In this case, Joe has a non-epistemic reason to act as the flight attendant directs – and again, some will view this reason (together with Joe’s samaritan duty) as sufficient to justify the flight attendant’s authority over Joe, while others will claim that it provide Joe with a reason to do as the flight attendant directs (even, across a range of cases, where Joe knows that her directive is sub-optimal), though not simply because she issues the directive. In this version of the airplane crash example, Joe has a contingent reason to do as the flight attendant directs that may hold less often than where Joe’s reason has to do with the flight attendant’s epistemic advantages. So, if there are several hours after the plane crashes before outside help arrives, Joe may have several opportunities to act contrary to the flight attendant’s directives without creating the aforementioned confusion. And, again, as long as he makes a good faith effort to do the right thing, why think he acts wrongly if he does disobey the flight attendant? Of course, Joe may act wrongly (though perhaps excusably) because he chooses a sub-optimal course of action. But that is a distinct wrong from the one he does if the flight attendant has a morally justified claim to authority over him – and note that it is the type of wrong he may also commit by obeying the flight attendant’s directives, if they are erroneous.
Ask yourself, then, the following question: would we think Joe despicable if he acted as the flight attendant directed, but said to her (or thought to himself): “because I have not consented to your rule, you have no claim to authority over me, but because I believe I can best discharge my samaritan duty by acting as you direct, I will do so?” If we would, I posit that this is not because we think Joe must consent to the flight attendant’s authority – rather, it is because we don’t think Joe should be engaging in philosophical niceties when there are injured people to be helped!
As I noted, my discussion of the airplane crash example is simply a long-winded way of making the direct authority objection. So let’s consider Estlund’s response to that objection. The best response would be an example (or, better, a series or set of cases) where the reader will accept both (a) that it is wrong for a person not to consent to another’s authority, and (b) that the reasons that make it wrong not to consent do not suffice to justify that authority without the mechanism of normative consent. I’m not sure I understand Estlund here, but I think the car care example may be intended as such an example. It will come as no surprise that I do not think it succeeds (though, again, I’m not certain that providing an example that meets the above criteria is what Estlund intends to do here).
First, I do not think that as a passenger in your car, I act wrongly if I do not consent to caring for the car as you ask (within reason). The example is far too unspecified for me to draw this conclusion, and certainly I can imagine more precise versions of it in which it seems permissible for me not to consent to your request. Obviously this is true if I am a passenger in your car only because you have kidnapped me, but equally obvious is that Estlund does not have this sort of scenario in mind. The one, slightly more specific, version he does appear to consider is one where it would be rude of me to refuse your request. I can certainly imagine cases in which it would be – though not, perhaps, if you have been begging me to be a passenger in your car, and either out of compassion or annoyance I have finally consented to do so. But set those cases aside – even in a case where I do think it would be rude of me to refuse your request, I do not think rudeness alone can make an act wrong. Might you be justified in never giving me a ride again, in light of my rudeness? Sure. In certain circumstances, might you even be justified in ordering me to leave the car if I will not consent to your authority with respect to caring for the car? Sure. But I do not see how the display of rudeness, or ingratitude, or any other character flaw of this sort can be wrong (immoral), and so the basis for normative consent.
Note, however, that just as in the airplane crash example, my conduct as a passenger in your car is constrained by a variety of natural (i.e. non-voluntary) moral duties. Thus I have a natural duty to respect your property, which places significant limits on the sorts of things I may do to your car. And, if I have good reason to believe that I will do better at respecting your property by deferring to your judgment as to whether a particular act on my part is damaging to your car, then I ought to do so. As I noted earlier, some will argue that in this scenario I have a moral duty to obey your reasonable commands (with respect to the treatment of your car), while others will deny this, arguing that I am morally required to do that which you would have me do, but not because you would have me do it. Those who adopt the latter view will deny that in failing to consent to your authority, I act wrongly, though they will argue that in the absence of a very good reason to think your directives to me mistaken, I will act wrongly if I fail to act as you desire. Those who adopt the former view may accept that I act wrongly if I fail to consent to your request, but they will also argue that the natural duty to respect others’ property and the epistemic facts previously cited suffice to justify your claim to authority over me.
So, a person may respond to the request “do as I ask with respect to caring for my car” by saying “I will do so because I think this is the best way for me to fulfill my natural duty of respect for your property – it is the best means for me to ensure that I treat you as you are entitled to be treated – but do not think that my reason for complying with your future directives is the mere fact that you are the one issuing them, and I have consented to do as you direct.” Would this be an odd response? Yes, probably even in a car full of philosophers. But is it rude, let alone wrong? I think not – if anything, it demonstrates a serious commitment to respect for others’ property rights, and perhaps an admirable degree of modesty when it comes to proper car care.
Still, the direct authority objection does not disprove normative consent as a genuine source of authority. After all, it may be that epistemic advantage provides both a direct basis for authority and a reason why the failure to consent to another’s authority would be wrong and so null. And it may be that the two are merely coincident (at least in this world), so that it is a contingent, but not necessary, truth that those grounds that entail the immorality of non-consent also directly justify authority. Fair enough. But insofar as parsimony is a virtue of theories, including theories of morally justified practical authority, and insofar as the only cases of normative consent that Estlund can identify are those in which the considerations that make non-consent to authority wrong also directly justify authority, there is no reason to accept that normative consent is a genuine source of authority. So, the direct authority objection does not show normative consent theory to be false. What it does show, I think, is that we have no reason to think that normative consent theory is true (at least as a theory of authority).
Suppose, however, that we grant that normative consent is a genuine moral event – that is, that it generates a duty to defer to another’s authority. Though Estlund makes no attempt to provide a detailed, let alone comprehensive or systematic, account of those (moral) facts that entail normative consent, the examples he gives are those frequently discussed already in the literature on political authority: e.g. urgent tasks and fair contributions. Nothing he says in his admittedly brief remarks leads me to believe that what he has to say in these cases will serve as compelling rebuttals to those criticisms that philosophical anarchists and others have leveled against these moral facts as sufficient by themselves (i.e. in the absence of normative consent) to generate authority. Someone that denies the adequacy of fair play as a basis for authority will equally deny fair play as a basis for normative consent, which in turn provides a basis for authority. So I don’t see how normative consent, even if granted, moves the true debate over political authority forward – rather, at best it seems to entail that all of the old debates should be recast in terms of what does, or does not, provide a sufficient basis for normative consent.
One final thought. An alleged advantage Estlund does identify for normative consent is that it can serve as an umbrella under which various facts that provide a basis for normative consent (and so authority) can fall. What is not clear to me is why such an umbrella is needed, or even if not needed, why it is attractive. The attraction of Scanlon’s characterization of wrongness in terms of reasonable rejection is that it (allegedly) makes commensurable various sorts of factors typically taken to be morally important – e.g. certain consequences, certain non-consequentialist considerations, certain practical considerations, etc. But I do not see a similar need with regard to the various alleged bases for authority. Whereas I do want to draw an all-things-considered judgment re: the rightness or wrongness of a particular act(-type), principle, institution, or policy, I do not feel any need to have a single unifying, or covering, basis for authority. I’m perfectly comfortable identifying several different bases for authority, and with the possibility that only some of them may apply to a particular agent in a particular case. [Of course, as some readers may know, I’m even more keen on a natural duty account of the duty to obey the law that combines the moral necessity of collective action with a moral right to democratic governance.]
Let me conclude by expressing my appreciation to those that have been participating in the discussion of David’s book thus far, and, especially, to David for regularly responding to the other discussants.