OPR VIII.22: The Authority of the State

Overview of §22

Chapter VIII of Gaus’ book is entitled “The Moral and Political Orders.” Appropriately enough, it takes up the topic of the relationship between the moral and the political order. Section 22 deals with the place of political authority in a broader story about moral authority. Section 23 discusses coercion in relation to moral and political authority.

Section 22 (“The Authority of the State”) begins by contrasting Gaus’ position with that of the social contract tradition. The latter, Gaus argues, holds that “There is no role for social morality as a distinct and independent source of moral authority” (p. 450). In order to reject this position, Gaus examines what he calls the “Comparative Procedural Justification Principle,” which states that “If the Members of the Public have available two procedures for selecting from the optimal eligible set, O and P, and P is itself publicly justifiable, while O is not, P should be employed” (p. 450). This principle is weaker than the Procedural Justification Requirement, which he discusses earlier. The former, unlike the latter, does not demand a uniquely justified optimal principle; it just demands a publicly justifiable principle be used. Gaus agrees that certain institutional arrangements (basically, those of modern representative democracies) may be good ways to protect basic individual rights (p. 452). This is why “Constant included political rights among the rights of the moderns” (p. 452). But this is “insufficient to yield the justification of a system of governance,” because there are many possible institutional arrangements that might accomplish this goal (p. 455). Hence the Comparative Procedural Justification Principle “does not support political authority over informal social authority, for political authority too relies on informal social-moral authority—an evolution of a political-moral culture leading to the selection of one of a wide range of acceptable political systems” (p. 455).

Gaus then investigates the nature of political authority. Following Thomas Christiano, he distinguishes between three different ideas of political authority. The first, which Gaus endorses, recognizes that states have a blameless liberty to coerce people into obeying its rules. There are good reasons why reasonable people would endorse such rules. Any society will possess people who simply do not respond to moral rules (e.g., psychopaths). Such people can respond to strategic incentives, however, and so if the harms that violations of moral rules can produce are to be avoided, then the state ought to have permission to align incentives appropriately (through threats and, presumably, offers; p. 463). Second, the state has the ability to push people (i.e, through incentive alignment) to participate in a particular moral equilibrium. Gaus holds that in doing so, the state is doing more than just providing a focal point upon which people can coordinate. For “the authority of the state allows us to make the implicit claim that should there be controversy or uncertainty about our claim, there is an authoritative answer that we all have reason to endorse”—the answer provided by the state (p. 466). I’m not really clear on what Gaus is driving at here, but it seems to be a second-order claim that the dictates of the state in resolving conflicts about moral equilibria creates a distinct moral reason for endorsing the resolution. It’s not just that the equilibria would in fact be an equilibria, and that it seems to be the one everyone is moving (thanks to the state) to accept. In addition, there is a moral obligation to do what the state says when it tries to do this. Without this additional moral obligation, the state is serving merely as a focal point, for everyone except psychopaths unable to respond to moral reasons. The third notion of authority is the idea that states have a “right to rule” (p. 468). Gaus takes this idea to mean that when states create rules, people have obligations to the states themselves to obey them. Gaus rejects this idea, and claims that whatever obligations people have to obey moral rules is owed to their fellow citizens. This is compatible with my interpretation of Gaus’ second notion of political authority; one can believe both that it is morally wrong not to accept the moral equilibria generated by states, and that if I commit this moral wrong, I am wronging my fellow citizens, not the state itself.

Gaus concludes this section by discussing morality on a global scale. Following Hayek, he argues that “the expansion of the market order to constitute a global order induces moral convergence on basic norms of cooperation among strangers” (p. 471). This convergence, however, has clear limits. Parts of the moral order, after all, do require states to set them up and keep them going. And there’s no reason to expect different states to do this in the same way. Indeterminacy between potential moral equilibria, after all, is a critical part of Gaus’ argument. Usually, this does not pose serious problems. If I visit a state which has resolved the indeterminacy of morality in a manner differently from my own, I still have plenty of reasons for abiding by rules of that state because they are “useful social conventions providing the basis for coordination” (p. 475). (An aside: Presumably Gaus does not believe I should regard these rules as morally binding upon myself; if so, then coercion would surely be necessary to ensure that I follow those rules. One would not, on Gaus’ story, expect moral rules to be self-enforcing among agents with no moral motivations for endorsing them. In respect to another nation’s rules—at least the rules with which my nation has not come into convergence—I might as well be a psychopath. Or is the fact that another nation has in fact coordinated enough reason to make obeying its laws the moral thing to do when I deal with people in that country? If the latter were the case, then there isn’t much of a problem to solve here.) But sometimes, it will cause such problems, especially if 1) it is morally important for me the state enforce a particular moral equilibria, or any moral equilibria and 2) another state cannot reliably be expected to do this. Gaus uses the example of China’s lack of respect for international copyright agreements (p. 476; if this is the biggest reason Gaus thinks we have to be concerned about “oppression” in China, he must be very happy with the state of the world.) Gaus doesn’t really see an easy answer to this problem. Finally, even if a state has no particular obligations to citizens of other states, it at least does have obligations not to coerce them—by denying them entry without justification (pp. 478-479). This final topic really belongs with the discussion of the next section, and so I won’t say anything about it here.

I am going to focus my critical remarks upon the Gaus’ argument with the social contract tradition, an argument that focuses upon the distinction between moral and political authority. In all honesty, I am not quite sure what Gaus believes he has accomplished here. Gaus is surely correct to argue that there are multiple democratic institutional arrangements that reasonable people might see as potentially legitimate ways to make decisions. What I do not see is how this yields the conclusion that the Comparative Procedural Justification Principle is “irrelevant” (p. 454). And I do not see how this in turn leads to a rejection of the social contract perspective on the moral order. Gaus seems to believe that the latter “grants to political processes all social authority to identify an acceptable moral equilibrium” (p. 456). If Gaus means that contractarians hold that nothing is moral or immoral unless and until the state says so, he is obviously wrong. Arguably Hobbes might be taken as endorsing this position, but surely every other figure in the tradition (Locke, Rousseau, Rawls, etc.) recognizes that there is a realm of morality that is not established by the state, and that doesn’t fail to qualify as moral until the state gets around to endorsing it.

Most contractarians would surely agree that the state may change the principles by which a society lives (by changing the laws). But that does not constitute, as far as I can see, any problem for Gaus’ endorsement of “the priority of social morality” (p. 456). On Gaus’ story, a society endorses certain moral principles that can command the reasonable agreement of all. Those principles are one set out of a number of possible sets that could command such agreement. The specific set that society endorses is the product of many arbitrary factors, in true Hayekian fashion. But this isn’t a problem, Gaus argues, given that the mere fact of endorsement—that people have in fact coordinated upon them—gives that set a unique status that principles outside that set do not have.

Thus far goes Gaus’ argument. Now add to this argument the following. Among the principles that the society endorses are second-order (meta-) principles stating that the public may legitimately change the first-order principles using certain institutions. (There is even scope within the institutions for altering the institutions themselves.) It states that the principles that result from these institutions are the principles that should be followed. It does not state that principles not enacted by those institutions are illegitimate, merely that the principles enacted by them are legitimate, even if they require changes in previously endorsed principles. These second-order principles have moral endorsement by all reasonable people, just like other principles in the set. If someone tries to defy the edicts of those institutions, they have prima facie done something wrong, and others may call them upon this, try to induce shame or guilt, etc. the specific set of institutions endorsed is contingent, in Hayekian fashion. But so is the rest of social morality, and so this poses no particular problem for those institutions.

I don’t see why a contractarian would necessarily have a problem with this story. And I don’t see what part of this story Gaus has reason to reject. I take it that he wants to put some sort of brake on what those institutions can do. It is surely reasonable to want such breaks; nobody believes that any set of institutions is guaranteed never to produce unacceptable outcomes. A democracy might enact laws that prescribe actions falling outside the bounds of reasonable agreement. But that just means that the demands of one principle might occasionally be in tension with, or even contradict, the demands of another principle. When that happens, there’s no neat solution; maybe there’s a higher-order principle that can resolve the conflict, or maybe there will simply be the need for one or the other principle to change. But this will arise whether or not either of the conflicting principles involves institutions.

And so in the end I’m just not seeing where Gaus’ beef with the social contract tradition lies. The state has a privileged status only in the sense that it is the morally endorsed way of resolving problems in the rules or creating new rules. It is “prior” to social morality only in the sense that it can change the rules of social morality quickly and decisively if the citizens use it to do so. It need not be “prior” to social morality in the sense of being completely independent of it. But unless you happen to be Hobbes, I don’t see why this conclusion should pose a problem for you.

I can only assume that Gaus’ goal here is to cast doubt upon the legitimacy of various forms of state action. This is an understandable goal given his libertarian inclinations (a topic that will occupy most of my next post). But I don’t see why recognizing the place for political institutions carved out by his theory creates a special reason to mistrust the state as a force for social morality. Now Gaus will later offer a specific reason for being concerned about state action later, one grounded in concerns about coercion. My point here is that from the mere fact that political institutions are but one part of social morality, he has neither scored a major victory over the social contract tradition nor provided a strong case for limiting the scope of political action.

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About Peter Stone

I work in various contemporary areas of political philosophy, including democratic theory, theories of justice, rational choice theory, and the philosophy of social science. My present research project deals with the virtues and limitations of random selection.
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One Response to OPR VIII.22: The Authority of the State

  1. I have three questions/comments about Jerry’s argument – and, in part, also about Peter’s comments.

    First, Peter seems to believe that Jerry rejects the Comparative Procedural Justification Principle (CPJP), and it sure seems so at times. However, Jerry does not say so explicitly and it seems to me that he relies on this principle to argue that only democracies are in the eligible set of political regimes (452-4). I read him as embracing the principle but denying that it implies the priority of political authority over social authority. (455)

    Second, Jerry’s purely instrumentalist justification of democratic regimes – as the only reliable protectors of agency and jurisdictional rights – is rather brief and justified with “merely indicative” (452) evidence. I have my doubts (especially given the lack of clear definitions of democracy and nondemocracy). To take just one example, Switzerland has long been a country where rights of agency and jurisdiction are reliably protected, and it is also a country with important supermajoritarian features (which Gaus likes, as we will see in §23). However, women were not allowed to vote until 1971. Based on Gaus, it seems that Swiss women could not complain about the decisions of Swiss political institutions before 1971 – it’s simply how political authority evolved in this country, and as long as the basic rights are protected; women might have been unhappy with the particular institutional equilibrium, but it was still justified to them, since it was an equilibrium within the eligible set of rights-protecting regimes.

    If that’s Jerry’s view (and it may not be), it doesn’t seem right. As I noted in my previous comment, Jerry used to argue that there is reasonable agreement on a political equality principle, which is the baseline for the institutional design of liberal regimes. But this principle is at odds with other arguments in the Order of Public Reason, most notably with (1) the priority of social authority and (2) with his preference for supermajoritarian decision procedures. So Gaus seems to have abandoned the equality baseline. I doubt, however, that his purely consequentialist argument can keep nondemocratic systems outside of the eligible set.

    Third, I read Jerry as sketching (on page 455) a sort of evolutionary justification of political authority – which Peter seems to embrace in his extended story. I find Jerry’s sketch insufficient and question-begging. One problem is related to my second point. For the evolutionary justification to work, it seems we would at least need reasonable agreement on the eligible set of political regimes. Gaus seems to think so, too, arguing (as noted) that all democracies are in whereas all nondemocracies are out. But why should a tentative empirical argument be sufficient to create the required agreement. Moreover, the democratic/nondemocratic distinction seems less clear than he suggests. Why should Switzerland before 1971 be out? Why should a rights-protecting system with Mill-type plural voting be out? Why should a liberal system be out, where only parties that pass a legal threshold of 20, or 30, or 40 percent of the popular vote gain representation? The answers are not clear to me, based on Gaus’ account. Yet if there is no agreement on the eligible set of regimes, how can a particular evolved regime be justified?

    My second problem with the evolutionary account of political authority is that the evolution of political authority seems to be very different from the evolution of social morality – a fact that Jerry completely ignores. He has carefully and on many pages tried to make the case for an evolutionary account of social morality but spends only a single sentence to suggest that “political authority too relies on informal social-moral authority – an evolution of a political culture leading to the selection of one of a wide range of acceptable political systems.” (455). Consider just two ways in which the evolution of political authority may be different from the evolution of social morality. First, political institutions often seem to result from self-interested elite bargaining with little citizen involvement. Second, the evolution of political institutions may be decisively shaped by the meta-rules for changing them. My reading of the evidence is that if meta-rules are permissive, there is a long-term evolution in established democracies towards fairer institutions, i.e., proportional representation for elections and simple majority rule for legislation. (I cannot argue for this here but do so in the paper I mentioned before). However, if meta-rules are restrictive – as e.g. in the United States – they may lock-in institutions that are not affirmed by citizens based on their current social morality. The question thus is whether we need reasonable agreement on the meta-rules or whether it is ok that these meta-rules simply evolved. Consider the counterfactual: if the Swiss meta-rules had made the changing of voting rights for women so difficult that they would still not be allowed to vote today, because a small minority of men could block institutional change, would this be justified because the Swiss regime protects agency and jurisdiction rights and its institutions and meta-institutions simply evolved in some arbitrary power-based process.

    To summarize, it seems to me that Gaus wants to use the assumptions of (1) the evolved nature of political authority and (2) the pervasive reasonable disagreement within the eligible set of regimes to reject the priority of political authority of social authority (455). However, it seems to me that these very same assumptions may challenge the idea that political authority can be justified at all (which was a major concern in Gaus’ earlier work).

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