Response to Comments on Chapter 7

Thanks to David (I’ll call him David L. lest readers get confused about the multiple Davids on the screen) for his excellent summary and questions. The first issue he raises is about my appeal to symmetry between consent and non-consent. I say that it’s interestingly asymmetrical if consent is sometimes null but non-consent never is. David L. is quite right that symmetry of this kind is not automatically an important thing, and so it’s no basis for thinking that non-consent must also be capable of being null. But Jonathan is also right, I think, to say that we might find the asymmetry morally puzzling. That’s all I had in mind. The asymmetry just opens up a question. After that, it does no argumentative work. I refer back to the question of symmetry once or twice as I argue for normative consent, but only to stay clear about what it was that was initially puzzling.

David L.’s main concern is focused around my airplane crash example. I should say that I don’t intend that example to elicit strong predictable intuitions. (It is not like the famous trolley problems in that way.) Rather, it is just a story I can use to illustrate what it is that I want to claim. It has also proven very useful to my critics in helping them make clear just where they think I go wrong. You’re welcome.

The main line of worry seems to be that I haven’t clearly or adequately answered what I call the direct authority objection, which holds that normative consent is superfluous. As David L. points out, the crucial distinction is between what conditions materially entail authority, and what conditions morally ground authority. So it’s important first to see that these are two separate things. I give as an example the fact that all present facts about masses, forces, etc., must materially entail all the moral facts. (This claim is available to lots of different metaethical views, though not all, I admit.) But those facts don’t morally ground or support the moral facts. For example, the micro-physical facts that entail that I consent to your using my pen do not morally ground your permission even though they do guarantee it by way of guaranteeing that I consent.

Now in the normative consent context it is moral facts, not just physical facts, that I claim make it wrong not to consent, and so it is more plausible for critics to claim that they could provide the whole moral account without any need to appeal to the stuff about the wrongness of not consenting. But that doesn’t change the form of the point. Just because those moral facts materially entail the authority (because they guaranteed the wrongness of non-consent), that doesn’t yet show that they morally ground the authority. Think of it this way: take any plausible account that says moral fact F is morally grounded in condition C. Now find some other conditions C’ that entail C but which are plainly no moral basis for F. A cheap way to do it is always to go to the underlying physical facts, but there would be other ways. Now ask whether you can find some other moral conditions MC that guarantee C. If so they are moral conditions that guarantee F, but that does not show that they morally ground F without any appeal to C. They might, unlike C, have no morally salient relation to F.

Now consider the garage cleaning example. I imagine a case where you would be morally required to consent to my authority over you if I proposed it. Why might you be required? I might have helped you a lot under your authority recently, and I might really need you to do as I say to help clean my garage. The direct authority objection against my account goes like this: Skip the stuff about the requirement to consent. The basis for the authority is, directly, the fact that I have helped you and you need my help. Those are the considerations I used to ground an obligation to consent to authority, but the direct objection says they will always be adequate direct grounds without the step about normative consent. What I have argued so far is only that the mere fact that those conditions are moral considerations and they guarantee the authority doesn’t show that they morally ground it directly. Let me say a little more about why we should think they don’t ground the authority directly.

When a direct theory says certain conditions are the basis for authority, suppose we ask, “how do those conditions ground authority?” The direct account says, in the garage case, that you’re under my authority because it’s my birthday. My account says you’re under my authority because, since it’s my birthday, you would consent to my authority (unless you act immorally). The advantage, I think, is that this connects the authority claim to the one really time-honored basis for authority: consent. The direct account simply asserts a connection between authority and birthdays.

You might say, the direct account just cites circumstances that give rise to certain obligations, with no mention of consent. And surely many obligations arise without any connection to consent. But I accept the traditional view that authority is special. The obligation to do as you’re told by another person requires an extra justificatory element. Authority is a loss of freedom in a way that simple moral requirement is not. Normative consent theory provides an extra element.

David L. raises a point about the relation between my view and the several direct views I mention, such as fair play and urgent task theories. Those and other theories have known difficulties. David asks, what good would it do if normative consent were, as I tentatively propose, an umbrella account that explained the moral force of the direct accounts (if any)? My thought was this: the familiar direct accounts are often troubled by counterexamples. They can be tweaked to try to avoid the counterexamples, but this looks ad hoc. But if normative consent is the overarching idea, then when, say, the fair play theory is adjusted in a way that avoids counterexamples, we can test how ad hoc the adjustments are by asking whether we can explain them in terms of which fairness contexts would make consent to the authority morally required. This won’t help with the direct authority objection, by the way, but that’s a separate issue. It won’t help because the direct objector will say that introducing the question about consent won’t generate anything that couldn’t already be generated by an appeal to the facts about fairness themselves as direct grounds for authority.

Notice, by the way, that the normative consent approach can appropriate whatever intuitive force is generated by any direct theory. The reason is that the direct authority objection grants for the sake of argument that where they say there is authority there does also happens to be normative consent. They just think it is morally superfluous. Where they say there is authority, I (can) agree and just add that what connects the “direct” considerations to authority is that consent to authority would be required in those cases. The only issue between the two approaches is the alleged superfluousness. Intuitively, both approaches can give the exact same answers to cases.

Let me finish this part by trying to put the impulse behind normative consent in a succinct way. Philosophical anarchists typically grant that there would be authority if it were consented to, but deny that political authority is consented to by most of the supposed subjects. They also argue that the familiar litany of non-consent approaches face damaging counterexamples, so they believe there is no political authority over most supposed subjects. People are free of authority if they have not consented. If we ask why someone should be off the hook if their denial of authority was morally wrong, the most compelling answer is the thought that in many contexts our refusal of consent retains its force even if the refusal is immoral. In the standard example, non-consent to sexual relations is decisive even if the non-consent is itself morally wrong. But then I reply that this case can be sharply distinguished from the one that concerns us. The decisiveness of sexual non-consent, which I grant, blocks the permissibility of doing something to someone. Our convictions about that don’t obviously bear on whether non-consent blocks authority, which does not involve anyone doing anything to anyone. So now why should we think that even immoral non-consent is decisive? If, as I recommend, we allow that it is null, we have a basis for political authority in which the attractive parts of many direct approaches are connected to the traditional concern with consent, without being led by the empirical absence of actual consent to the skeptical conclusions of philosophical anarchism. The direct authority objection is left with either philosophical anarchism or proposals that divorce authority completely from the one moral idea that has always been granted to have the potential to ground authority: consent.

I’ve limited myself mainly to questions about the direct authority objection, and I apologize for not being able to take up the several other interesting issues that have been discussed. I can say one quick thing about a question of Ben’s. A command can be said to have authority, and a person can be said to have authority. Which am I talking about? How are they related? I have been thinking of things this way: A person’s authority is nothing but a set of possible commands by them that would be authoritative over certain people. So that latter is the more basic notion. One person is an authority over another only with respect to certain issues and within certain limits. It is not a hierarchical relation between persons, since two people might have various kinds of authority over each other. (In fact, nothing in my account prevents two people from having authority over each other with respect to the exact same issues and to the exact same extent.) The primacy of command authority is useful when we are considering the authority of the state, since it is not a person. So long as it can issue commands, the question of authority can find application.

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6 Responses to Response to Comments on Chapter 7

  1. David Lefkowitz says:

    Thanks to David E. for his reply. But I must confess, I’m still unclear on the case for normative consent.

    One claim favoring it over various direct accounts of authority is that the latter simply asserts a connection between certain conditions (e.g. receipt of benefits from others’ cooperation) and authority, while normative consent adds the idea that given certain conditions, an agent should consent to another’s authority, and so is bound to obey that other regardless of whether he or she does actually consent. But this simply moves the point of assertion back one step – rather than asserting that I have a duty to obey the law because I have benefited from others’ obedience to it, Estlund asserts that I have a duty to obey the law because, having benefited from others’ obedience to it, I should consent to the law’s authority. I don’t see why moving the simple assertion (if that is what it is) back one step makes normative consent any more attractive than direct authority accounts.

    Estlund appears to believe that the advantage of having added this extra step is that it “connects the authority claim to the one really time honored basis for authority: consent.” But I don’t see how Estlund can help himself to the positive aura that traditionally surrounds consent (as an account of political obligation). After all, that positive aura follows from the way in which consent expresses an agent’s will. Estlund rightly points out that there are moral constraints on those obligations an agent can voluntarily acquire – I cannot acquire a duty to obey Michael Corleone’s command to kill an innocent person, even if I have putatively consented to do so. But some positive case must still be made to support the claim that there are moral constraints on non-consent, constraints that both render such non-consent null and leave the non-consenting agent in the normative position he would have occupied had he consented. And I still do not see where Estlund makes that case. Apparently it has nothing to do with symmetry, nor with the airplane crash example. So, even if we grant the logical possibility of normative consent, I still see no reason to believe that normative consent is a genuine moral phenomenon.

    Estlund might appeal to our intuitions in the various cases thought to support direct accounts of authority, since as he notes those intuitions also support the claim that it would be wrong not to consent to another’s authority. But it seems to me that the value of parsimony or simplicity favors direct authority accounts over normative authority. Consider two theories of physics, A and B, each of which consists of all the current laws of physics, but where theory B adds the claim “and God wants it that way.” If, as I believe, that claim adds nothing to the explanatory value of a theory of physics, and competing theories of physics should be evaluated solely in terms of their explanatory value, then we should reject theory B in favor of theory A. This is so even though both theories account equally well for the data. I contend that we should draw the same conclusion when comparing normative authority with various direct authority accounts: even if they account equally well for our intuitions, normative consent adds a thesis that, as far as I can see, adds nothing to the explanatory, or better, justificatory value of the theory. For reasons of parsimony, then, we ought to reject normative consent and prefer direct authority accounts instead.

    Estlund acknowledges that we can come to have moral obligations in the absence of consent, normative or otherwise. He maintains, however, that the duty to obey an authority is special: “the obligation to do as you’re told by another person requires an extra justificatory element. Authority is a loss of freedom in a way that simple moral requirement is not. Normative consent theory provides an extra element.” I do not see how normative consent provides that element. After all, according to normative consent an agent will have a duty to obey another regardless of whether he chooses to do so. As long as certain conditions are met – namely those that make it wrong for him not to consent to another’s rule – he has a duty to obey that person. What extra justificatory element has been added here that distinguishes the situation this agent confronts from one where circumstances give rise directly to some moral obligation? Of course, actual consent does add an extra element, namely the agent’s actual exercise of his or her will. But obviously this cannot be the extra element that normative consent adds.

    Estlund contends that normative consent maintains some connection to the agent’s will – there is a quasi-voluntarist constraint on authority (p. 130-1, and 151). I don’t see any special connection between normative consent and the agent’s will. If the idea is that the correct account of morality must assign a central place to the idea that “there is… some moral independence of each person from the wills of others, having something to do with the fact that they, too, have a will that is just as morally important as anyone else’s” (131), a wide range of non-consequentialist theories can accommodate it (and, depending on how consequences are understood and assessed, perhaps even a consequentialist theory can). Surely a hypothetical contract approach to morality such as Scanlon’s can do so – which I mention because a variation on that approach serves as the basis for my own account of morally justifiable political authority. But without having thought about it for too long, I suspect that other approaches can as well – for instance, George Klosko’s account of fair play, which, apart from the one that provides them with indispensable benefits, entails that agents’ cannot be bound to contribute to a cooperative scheme without having willingly and knowingly joined it. Once again, then, it seems to me that Estlund cannot appeal to the aura of traditional consent theories to make the case that normative consent adds an element missing from (at least some) direct authority accounts.

  2. Let me see if I can say something, at least briefly, about each of David L.’s points. I’ll quote his comments to specify what I’m responding to, but only partially in order to avoid getting excessively long. (Well, in truth, this is going to be excessively long. David L.’s reply is long, and I don’t want to duck any of it. Perhaps the readership on this thread is understandably down to me and him. I still value the opportunity. Anyone who wants a shorter reply is welcome to read only part of it…)

    “… some positive case must still be made to support the claim that there are moral constraints on non-consent, constraints that both render such non-consent null and leave the non-consenting agent in the normative position he would have occupied had he consented.”

    He lists two things that I must make a positive case for.

    1. That there are moral constraints on non-consent.
    2. That morally wrong non-consent is null.

    More precisely, for (1), I need to show that non-consent can be morally wrong. In the chapter I don’t say much along these lines, not anticipating much objection on this point. I do offer the case of the car, and I didn’t respond to David L.’s earlier remarks on that example. I propose (in the chapter) to put aside any claim I might make about authority, and imagine a car’s owner saying to a passenger, in effect, (we would never put things in these words, but that doesn’t matter) “If you’re going to ride with me, would you please agree to do as I ask with respect to the care of my car (within certain limits)?” I claim that under many plausible conditions it would be morally wrong to say no. Keep in mind, we’re not yet looking at any claim about authority. As I understand David L.’s discussion of that example, his main argument is that a better explanation of the intuition that the passenger should agree is that there is, already, a natural duty that grounds the obligation to obey the driver. So this is not really consent to anything new.

    So, first, which natural duty would operate in this way? David L. proposes a natural duty to respect the driver’s property. But if the driver says “Please don’t rest your foot on the dashboard,” this natural duty lies dormant unless this happens to alert the passenger to some genuine risk of harming the car. If it doesn’t (your shoes are clean, for example) the duty to respect the driver’s property won’t generate any obligation to keep your feet down. I think most people agree that refusing to keep your feet down in this case is morally wrong, a fact involving authority which the posited natural duty can’t explain.

    Now if what is posited is more specific—a natural duty to respect the property by doing as the owner says, then perhaps I can agree. It depends on what “natural” is doing.

    So, second, what is “natural” doing here? A duty is being asserted—a duty to do as the driver says. So we are agreeing that there is such a duty. The only question between us, then, is what its moral basis is. But on that question, calling it natural is no account at all, since it seems normally to mean nothing more than “It’s a duty that does not have consent as its moral basis.” I see that this is the claim, and I don’t disagree, but my question is what the basis is for this duty. (And if that is what is meant by natural, then my account can be said to offer an explanation of the moral basis for natural duties to authority—duties that do not depend on consent. But I find the word “natural” to be distracting, as if some account is being offered of how nature grounds the duty, or something.) If “natural” is being used to mean, “not based in either actual or normative consent,” then, of course, I don’t agree that there is such a duty. But then the objection is nothing more than a counter-assertion with no alternative proposal for the basis of such a duty. It’s no explanation of how there could be a duty without actual or normative consent to say: “It’s this kind of duty: one that doesn’t depend on actual or normative consent.”

    Turning to (2):
    I need to show that immoral non-consent is null. I don’t expect to be establishing that as a premise and then moving on with the argument. Rather, I introduce this possibility (novel, I think) and ask whether it leads to any utter implausibility (I haven’t seen any argument that it does), and whether it would provide a new possible account of authority with some advantages. So, in a way, there’s not much more to say here. It’s the advantages that are really in dispute, as we’ll see.

    “But it seems to me that the value of parsimony or simplicity favors direct authority accounts over normative authority. Consider two theories of physics [DE: see his physics example]…I contend that we should draw the same conclusion when comparing normative authority with various direct authority accounts: even if they account equally well for our intuitions, normative consent adds a thesis that, as far as I can see, adds nothing to the explanatory, or better, justificatory value of the theory.”

    It’s slightly interesting that parsimony looms large here, even though symmetry was dismissed rather quickly, but this is no big issue between us. I approve of parsimony in some cases, but here it’s not clear what this gets us. Let’s take an example in another context: Consider a theory that says that what makes it wrong to break a promise is that (roughly) a person could, without being unreasonable, reject any set of rules that didn’t include that. And suppose a critic replied by an appeal to parsimony: “It’s much simpler to say that there is a natural duty to keep promises, a duty that has no basis in actual or hypothetical agreements to such a rule.” Here I don’t think the value of parsimony is any serious pressure against the more complex contractualist account.

    That point would stand even if this weren’t, in other ways, a good analogy for our purposes. But perhaps it is. One objection to the analogy might be that the direct theories of authority offer some other moral account of authority when questions of consent are eschewed: fair play, urgent task, etc. But I don’t see any disanalogy yet. “Direct” theories of a duty to keep promises will certainly have to propose rules about promising that seem to capture when promising is and is not required. I suppose that could be called a moral account. But the contractualist can say (and I’d have sympathy) that a rule that gives the right extension of the duty does not necessarily cite anything that provides a moral basis for the duty. For this (they say) we need to bring in a contractualist story. That looks pretty parallel to my claim that direct accounts of authority do little more than specify (and not very adequately so far) the extension of authority, and that for a moral basis we need to bring in a story about normative consent. The question at the moment is not whether you accept the account. I’m just responding to the charge that theoretical simplicity weighs heavily against my account. Of course, if someone thinks that my appeal to normative consent, or contractualism’s appeal to the hypothetical contract, doesn’t provide any extra moral explanation, then they wouldn’t think those are parts of the best theory. But then simplicity isn’t the real issue.

    “Estlund …maintains…that the duty to obey an authority is special: ‘the obligation to do as you’re told by another person requires an extra justificatory element….’ Normative consent theory provides an extra element.’ I do not see how normative consent provides that element. After all, according to normative consent an agent will have a duty to obey another regardless of whether he chooses to do so.”

    Normative consent is an extra element in the justification in the same way that the contractualist story is, in a contractualist theory, an extra element in the justification of a duty to keep promises. It’s really not at all unclear how it’s an extra element. I suspect the question is really just about whether this extra element does what it’s meant to do. But that’s a separate complaint than this one I just quoted.

    “Estlund contends that normative consent maintains some connection to the agent’s will – there is a quasi-voluntarist constraint on authority (p. 130-1, and 151). I don’t see any special connection between normative consent and the agent’s will.”

    You could say that. But you would presumably have to say the same thing about Hobbes, Kant, Rawls, Gauthier, and Scanlon. Because (or insofar as) the will (or the capacity for choice) only appears in their justificatory theory in a hypothetical scenario the theories involve “no special connection” to the agent’s will. Obviously, like mine, those wouldn’t be fully voluntarist theories. They specify a different connection to the will than that. You could call it no connection to the will at all, but what would the point of that be? The will (or capacity for choice) shows up in the theories, and is not removable. Call that feature what you will (so to speak). That’s the feature mine has.

    “If the idea is that the correct account of morality must assign a central place to the idea that ‘there is… some moral independence of each person from the wills of others, having something to do with the fact that they, too, have a will that is just as morally important as anyone else’s’ (131), a wide range of non-consequentialist theories can accommodate it…. Surely a hypothetical contract approach to morality such as Scanlon’s can do so… I suspect that other approaches can as well – for instance, George Klosko’s account of fair play, which…entails that agents’ cannot be bound to contribute to a cooperative scheme without having willingly and knowingly joined it.”

    Agreed. This particular feature of my account is not proposed as an advantage over any other theory that makes essential appeal to actual or hypothetical exercises of the will. That’s the very feature I’m advertising in the quoted passage.

  3. David Lefkowitz says:

    Many thanks again, David, for responding to my comments (especially if it is only for my benefit). I respond to each in turn.

    First, on a passenger’s natural duty to respect the property of the driver (in this case, the driver’s car). As you note, all I mean by the term ‘natural’ is that the duty is a non-voluntary one – that is, the duty is one that agents are under even if they have done nothing to acquire it.

    But I do not think the content of that duty is ‘a duty to respect the property by doing as the owner says.’ Rather, it is a duty to act in those ways consistent with respect for that agent’s property (which is vague, I know, but I’m pretty sure that won’t matter here). I agree that the duty is dormant if, as a matter of fact, my conduct – in this case, putting my feet on the dashboard – does not cause any damage to the property. I do think it would be rude to keep them there if the driver asked me to remove them – but that would still be true even if the driver said ‘I know your feet are not doing any damage to my car, but you having them there makes me uncomfortable (perhaps for no good reason) so please put them down.’ I suppose I need a theory of rudeness, one that among other things distinguishes between mere rudeness and immoral conduct, to buttress this intuition. I don’t have one, but perhaps my intuition resonates with others?

    Suppose that typically the driver will be better placed epistemically to determine whether my conduct is damaging to his car – in these cases, that fact plus my non-voluntary duty to respect the driver’s property suffice as an account of why I act wrongly if I do not remove my feet from the dashboard when the driver instructs me to do so. But what about the case where my judgment is more likely to be correct? Suppose I say to the driver: “look, I know that someone’s putting their feet on your dashboard usually damages it, but for reasons X, Y and Z (e.g. my shoes are clean, etc.) that is not the case here.” Suppose, further, that the driver says “I don’t believe you” or “I think you are mistaken” or “I don’t care,” followed by “since this is my car, you have to play by my rules [and my application of them to particular cases].” Now the situation has changed. Now I am confronted with an offer – either play by my rules, or get out of my car – and I face a choice: either actually consent to the driver’s authority, or exit the car.

    Estlund is more or less right that my assessment of the foregoing example, and so of the case for normative authority, is “a counter-assertion with no alternative proposal for the basis of such a duty.” But might the rival intuitions appealed to in that example provide some basis for preferring one theory over the other, even if I have yet to flesh out a theory of property rights and a direct account of authority grounded in epistemic considerations (e.g. one like Raz’s normal justification thesis for practical authority)?

    Second, regarding the claim that direct authority accounts ought to be preferred to normative consent on grounds of parsimony: I think both Estlund and I would have to spell out our preferred moral theories in greater detail to employ this criterion of theory selection. My thought was something like this – I think a variation on Scalon’s contractualism can demonstrate why X has a duty to obey the law when certain conditions are met (namely when collective action is morally necessary, there is (or could be) reasonable disagreement over the form that action should take, and there is an effective liberal-democratic mechanism in place for settling such disagreements for action guiding purposes). I don’t think this form of hypothetical contract reasoning needs to be supplemented with normative consent. But having not made any effort to argue for this conclusion here, I concede that the jury should remain out as to whether this account proves to be simpler than Estlund’s (in the sense relevant to the superiority of one theory over another). [Sorry, couldn’t resist the jury reference.] So, take my point about parsimony as a source of hesitation to accept normative consent, but not (yet) a refutation of it.

    Third, my hesitation would be less if it were clearer to me what the advantages of normative consent are over various direct authority accounts – Estlund is right, then, when he says that ‘it’s the advantages that are really in dispute’ between us. I’m still unclear on what those advantages are, however, and perhaps less clear than I thought I was on exactly what view normative consent is alleged to have an advantage over. Perhaps Estlund does not mean to claim that normative consent has an advantage over any other hypothetical contract approach to political authority. In that case, he and I may disagree about the particular form that hypothetical contract reasoning should take (or something like that), but as I noted in the previous paragraph, we are not currently in a position to assess which of the two views are superior (or how much, if any, disagreement there really is between us).

    However, I do think Estlund believes normative consent to be superior to non-hypothetical contract approaches to political authority, such as fair play (or fair contribution), but I am not sure why this is so. To repeat the worries from my original post, I am not persuaded that the ability of normative consent to serve as a kind of umbrella encompassing various extant direct accounts of authority provides a compelling reason to adopt it – at least not in the way that I find Scanlonian contractualism’s ability to encompass various sorts of wrong-making features of the world an aspect of the theory that makes me think it superior to rival views (views that often accommodate only a subset of the features that Scanlon labels wrong-making). Estlund’s suggestion that agent’s can ask themselves whether it would be wrong not to consent to a person’s authority is an interesting one, but of course an advocate of fair play could agree that posing this question can be a useful heuristic without assigning it any justificatory role. But perhaps I’m looking in the wrong place, or holding Estlund to too high a standard, in assessing the case for normative consent over various non-hypothetical contract direct authority accounts. Perhaps I should focus instead on the alleged failings of these accounts, and the ability of normative consent to avoid them. [Interestingly, in his response to the discussion of chapter 1, Estlund rejects FP accounts because they ground the duty to obey the law in the benefits the agent receives from it, whereas it is the just treatment of others that should play a foundational role in justifying the duty to obey the law. I have argued for the same point, as have a number of others.] This is consistent with Estlund’s stated goal of introducing the logical possibility of normative consent (which I grant) and showing that it does not lead to “any utter implausibility,” together with a third thesis that says something like “and all the other accounts of authority are implausible, or at least considerably less plausible.”

    That still leaves the philosophical anarchist, however. Estlund (and any other hypothetical contract theorist of political authority) with the challenge of explaining why we should believe that in some cases agents have a non-voluntary duty to defer to another’s authority, rather than merely a duty to make a good faith effort to discharge the various non-authority non-voluntary duties they have? How does the proper hypothetical reasoning lead to the former duty, rather than the latter? For a typically clear and succinct statement of this challenge, see John Simmons’ presentation of it at the end of his discussion of natural duty approaches to the duty to obey the law, in Wellman and Simmons Is There a Duty to Obey the Law? [And now for some shameless promotion: I discuss this issue a bit in an article entitled ‘Simmons’ Critique of Natural Duty Approaches to the Duty to Obey the Law,’ published in the most recent issue of the APA Newsletter on Philosophy and Law, available at http://www.apaonline.org/apa/publications/newsletters/v07n1/Law.pdf%5D Perhaps Estlund addresses this in Ch. 8 (which, perhaps embarrassingly now that I have posted this comment, I have yet to read), or elsewhere in his book.

  4. This was a very helpful exchange. I won’t do anything more than to briefly answer a question David L. implicitly puts to me.

    Right, the quasi-voluntarist element of my view is only advertised as an advantage over views that don’t include even that nod to voluntarism. And right again, my thought about actual consent views or fairness views with a voluntarist component is that none that I know of gets all the cases right. Call this the extension issue. (Solving the extension problem doesn’t guarantee that a genuine moral basis has been found, so there’s also the moral basis issue.) I’m not thinking of normative consent as giving us any clear extension, but rather that it might be a moral account of why some of the examples that meet the (best) fairness account yield authority while others don’t, etc. It might give a unified explanation of the extension, and of why it doesn’t exactly fit any of the other accounts, while still accepting the moral relevance of many of the factors those other accounts point to. But this (the umbrella idea) is just an idea, not an argument. It would take much more work to explore and test.

    Finally, as might be obvious, normative consent is compatible with contractualism, since it doesn’t commit itself to one underlying moral theory or another. But if a contractualist account (such as David L. is developing) could get the extension right then nothing I’ve said would give us any reason to appeal to normative consent (which isn’t to say that there is nothing MORE I might find to say). Contractualism certainly has a quasi-voluntarist component, as I think a theory of authority must. I genuinely look forward to seeing David L.’s view as it develops.

  5. David E and David L, This exchange has been so formidable that I, at least, have thought better of interjecting. Now that it has come to a hiatus, I would like to ask for clarification on a point or two. David E., you took David L. to have challenged you to show two things:

    1. That there are moral constraints on non-consent.
    2. That morally wrong non-consent is null.

    With respect to the second point, you remarked:

    I need to show that immoral non-consent is null. I don’t expect to be establishing that as a premise and then moving on with the argument. Rather, I introduce this possibility (novel, I think) and ask whether it leads to any utter implausibility (I haven’t seen any argument that it does), and whether it would provide a new possible account of authority with some advantages. So, in a way, there’s not much more to say here. It’s the advantages that are really in dispute, as we’ll see….

    (One advantage you go on to claim is that of having a conceptual tool capable of solving the “extension problem,” which I take to be that of supplying a principled basis for dividing cases in which intuition tells us there is legitimate political authority from cases in which it does not. Another is that of providing an understanding of how, e.g., fair-play and other theories work in handling the (insufficient) range of cases they do handle.)

    I think you have offered compelling reasons to accept that there are indeed instances of wrongful non-consent (meeting the first part of David L.’s challenge). These reasons aren’t merely that “wrongful nonconsent” is an interesting and novel possibility that offers theoretical advantages. But as I understand you, as to the second part of David L’s challenge, you in effect challenge us to show that wrongful nonconsent cannot be null; and, confident that that burden has successfully been shifted, you proceed to explore the theoretical advantage normative consent has in the solution of the extension problem.

    I think it is implausible that immoral non-consent is null, whether generally or with respect to the kinds of cases that bear on the problem of authority. I’d rather counter-argue than argue, but, David E., am I right that you view the skeptic on this point to bear the burden of going forward?

  6. Bill: I’m glad to see that you accept that non-consent can be wrong. That focuses things nicely on the last step, the claim that wrongful non-consent to new authority is null. You wonder whether, lacking much positive argument, I’m trying to pass the burden of proof to my opponent.

    I would say no, I don’t think the opponent bears any special burden of proof. But nor would I say that either position has the advantage of being the default position. By that I mean, to say that one side has the burden of proof normally means that if neither side gives any proof then the other side wins by default. So, unless one of the positions on the nullity of wrongful non-consent to authority has some claim to be the default, neither of us bears the burden of proof. That metaphor only applies when there is a default.

    So, what I try to do is raise a question most of us will never have considered before: Is wrongful non-consent to authority morally effective or null? It’s hard to know which way to lean, and how to support it. On one hand, non-consent on many other matters, such as whether you can touch me, or whether you can borrow my car, is effective even if it is wrong. On the other hand, as I observe, there is a difference between those cases and this one. In those cases if the non-consent were null it would permit people to do something to me or my property. In the case of authority, if my non-consent is null that still doesn’t permit anyone to do anything to me.

    So, on the principle that other things being equal a person shouldn’t benefit from doing wrong, there is some pressure for wrongful non-consent to be null. Perhaps this is outweighed by the importance of people not being permitted to do things to me without my consent, but is not outweighed by the less pressing interest in being protected from obligations to obey.

    That bit about people not benefiting from wrong is something I’m adding here. I think it gets at an idea that was silently guiding the argument. My thought is this: if a person wrongly refuses to let me borrow the car, we need some good reason to let that still prohibit the action. There is, I think, normative pressure against letting it stand. After all, it’s a kind of abuse of power. But morally there are even stronger reasons to give people that especially wide scope for blocking permission to do things to them (or their stuff, etc.). In the case of non-consent to new authority, this latter consideration is not in play. So making someone’s abuse of that power morally ineffective would fortunately still not permit anyone to do anything to them. With no such consideration pushing back, the pressure to prevent the person from benefitting from an abuse of that power wins.

    Anyway, I don’t appeal to burden of proof. I adduce some reasons in favor of my case, and I acknowledge that there are some considerations against it, but I don’t see that either deserves the status of a default.

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