Here is a quick argument for non-voluntary (and hence non-consent-based) normative authority. No doubt this needs some tightening-up or is otherwise flawed. And I have to do a lot more reading about the various “fair play” approaches to political authority (and authority generally). But right now, something like this seems pretty compelling to me.
(1) When one is participating in a collective endeavor or institution of value, one is obligated to contribute one’s fair share (irrespective of whether this maximizes or optimizes utility relative to the other ends in view – in this sense, the obligation is thought of as deontological).
(2) Not all such participation is voluntary: in some important cases, one simply finds oneself participating and cannot, not without unacceptably high cost to oneself, escape or opt out (e.g., participation in systems of language and communication).
(3) So, in these non-voluntary-participation cases, one in this sense cannot get out of the obligation to contribute one’s fair share.
(4) In some further subset of these non-voluntary-participation cases, all or part of one’s fair share is personal compliance with the social rules.
(5) Sometimes these rules include those specifying that one is to obey the (relevant-enough, competent-enough but not necessarily that great) orders of qualified persons who occupy certain roles or offices.
(6) In these cases, the only way to realize the non-voluntary obligation to fairly contribute is by obeying authorities (people in relevant roles or offices) in ways that constitute normative authority.
Unlike Estlund’s argument, this argument does not require that the collective task be urgent, important, super-valuable, etc. Also unlike Estlund, I don’t worry that everyone will be obligated to provide fair contribution to a valuable task that only all of us around here are engaged in. For it is the particular value to the participants, not any strictly agent-neutral value of the endeavor or its aims, that I take to do the work. I also don’t have a “normative consent” condition here (requiring that, in order to get authority, it needs to be the case that you are obligated to agree to obey).
However, by adding qualifications to this most-basic sort of case, it is easy to move in a broadly liberal direction. It seems likely that, especially in social conditions adequately propitious to liberal social arrangements, the value of and obligations to respect individual autonomy – and as well considerations of fair play in choosing between the various adequate options in schemes of social rules that we enforce – might amount to additional conditions on authority. For example, schemes of social rules might, for small or questionable social gain, (a) impose high autonomy-costs on individuals or (b) impose differential compliance costs across different types of individuals (arguably, something that is unavoidable) but without providing adequate space for public objection, persuasion and social or political organization. If either of these things are true, it is plausible that we are not obligated to comply with at least some of the social rules that we would otherwise be obligated to comply with. I suspect that there are other broadly liberal qualifications for authority (or political authority) that would plausibly appropriately qualify the story of fundamentally non-voluntary fair-contribution-based obligation here.
Policy of Truth 
Most of that seems pretty right to me. I wonder about some details, even apart from the refinements we’d need to get a justification of political authority out of it.
I’m not sure we should think of these cases as “non-voluntary-participation” cases. The important fact about them that distinguishes an account of this sort from consent-based accounts is that participation is not rationally optional. But it seems mistaken to suppose that I do not voluntarily choose an option simply because it is rationally compelling and I recognize that it is rationally compelling. My will follows my reason in such cases, but my will is still involved and is not coerced. Moreover, though such cases might be rationally compelling, I might still be free to will otherwise, because other, more limited ends can attract my attention and I can voluntarily pursue those instead of doing what I can and perhaps do recognize to be rationally compelling. Whether or not I choose to do the rationally compelling thing, its being rationally compelling differs from the three sorts of cases that ordinarily render something non-voluntary: (i) I don’t voluntarily do anything, but am strictly forced, as when you push me and I fall to the ground; (ii) I act voluntarily, but what I actually do differs in some significant way from what I intended to do or thought that I was doing, as when I hit you in the face with a piece of fruit because I thought you were aware that I was about to throw it to you but you weren’t; (iii) I act voluntarily, intentionally, and knowingly, but I do something that I strongly want to avoid because someone else is coercing me, as when I hit you in the face with a piece of fruit because your enemies have kidnapped my children and threatened to execute them if I do not publicly disgrace you with fruit. We can and do voluntarily, intentionally, and knowingly do what is rationally compelling without being coerced (so perhaps ‘compelling’ is the wrong language here, and ‘required’ would be better). Participating in a collective endeavor or institution need not be non-voluntary in any of those ways even when we strictly cannot opt out, but as your qualification — “without unacceptably high cost to oneself” — rightly registers, it is often not strictly true that we cannot opt out.
What remains crucial on the view you sketch out is that I am or come to be under authority not because I choose to be under authority, and not because of any other choices I make, either. Of course, my recognition of the purported authority as authoritative is up to me in that whether or not I do in fact recognize it depends on voluntary acts of mine, but no voluntary act of mine makes it the case that I have reasons — normally decisive reasons — to comply with the relevant rules. The language example is a good one, though of course it will not be closely analogous to political authority in many respects: I have decisive reasons to participate in English-language use, and when I so participate I have normally decisive reasons to comply with the rules of English. Of course I may sometimes have sufficient reason to break those rules, too, but compliance with the rules is usually not rationally optional either (a) insofar as I am trying to communicate to be understood or (b) insofar as I have decisive reasons to communicate to be understood, to contribute to the continued availability of a system that enables this communication, to avoid undermining it, and so on. [I am assuming that you and I both envision the relevant rules here as genuine rules of English grammar on which intelligible use of that language depends, not on narrower rules of ‘proper’ English — so that we’re talking, at least in the first instance, about the rule that makes Object Verb Subject word order impossible in English, not a rule like “do not end a sentence in a preposition” or “say ‘people are,’ not ‘people is’,” though of course we might be able to offer some good reasons for rules of the latter sort, particularly within specific contexts.]
So I think I want to put things a little bit differently, but I don’t see those as serious disagreements.
Incidentally, I wonder about the “obligation to agree to obey.” I’m still not seeing good reason to distinguish an obligation to agree to obey from an obligation to obey. I might have obligations to agree that are not obligations to obey — maybe not all agreement and adherence to agreement counts as obedience, because obedience depends on commands, and agreements don’t need to involve commands — but what is the point of distinguishing an obligation to agree to obey from an obligation to obey? Is this just another way in which Estlund wants to hold on to features of consent-based theories that cease to make sense given that he does not in fact give consent or agreement a fundamental role in justifying authority? Or am I missing something? [I imagine this point will become clearer as I get further in the book.]
LikeLiked by 2 people
That’s quite helpful, David. Thanks for correcting me regarding ‘non-voluntary’. I think the relevant mode of participation is at least partly mediated by one’s intentions and choices. However, I’m not sure that it being rationally compelling that one continue participating is quite what I had in mind. Maybe a species of rational compulsion, however. I certainly don’t have in mind simply the instrumental rational compulsion that comes along with the pursuit of some particular end (not even if it is added that the end is valuable and taken to be such). Something more like this: participation in practice or institution X is an integral, ineliminable means to my realizing many or most things that are valuable for me. (Adding that one cannot really conceive of achieving many of the relevant ends outside of engaging or participating in the social process in question seems apt and would make the normative inescapability or non-opt-out-ability even stronger.)
LikeLike
I would just ask: is the participation involuntary? If so, I would say that “involuntary participation” is just a solecism and a contradiction in terms. “Involuntary participation” is like “involuntary cooperation.” There simply is no such thing. When you involuntarily undertake a task, you don’t “participate” in it; you acquiesce in it.
If the participation is not quite involuntary but not in any sense consenting, I would say that that fact weakens the obligation to contribute substantially–substantially enough to fall short of anyone’s conferring “authority” on anyone.
It’s hard to get someone to participate in something without informing them of what they’re participating in. As the authorities inform their participants of that, it seems inevitable that they (the would-be participants) will at least implicitly consent or not consent to participation. If they can be shown somehow to consent, then consent (however inchoate or implicit) is what underwrites the authority in question. If they can’t be shown in any sense to consent, then I would say that it is simply unclear whether they are really “participating” in anything or have an obligation to contribute to it. We can’t say much about them at all, much less that they have an obligation to contribute.
To the extent that those in a position of authority actively refuse or just fail to inform the “participants” of what they’re participating in, and fail to give them an opportunity to consent to or refuse consent to it, I’d say they lack the standing to have authority.
I don’t think our participation in the use of language is a helpful example because it strikes me as a paradigm case of implicit consent. Few people object to having to speak the language of their birth, or more precisely to involuntarily having to speak a language from birth (or infancy). But our involuntary inculcation in language (in childhood) has little or nothing to do with our involuntarily having to follow the law in adulthood. Consent would be impossible without language of some kind, so that the involuntary imposition of language makes acts of consent possible. By contrast, law doesn’t make consent possible, and in the absence of consent, involves coercive commands (which can’t be said of the use of language). So I don’t see how the one case illuminates the other. Also, it’s essential that language is involuntarily learned in childhood; childhood is just a special case where paternalism has obvious application. But childhood aims, teleologically, at maturity, and involuntary impositions on adults are just a different sort of case.
LikeLiked by 1 person
I don’t think I understand why you suppose that whether or not I consent to something has any bearing on whether or not I have an obligation to do it. Perhaps I’m not seeing what the relevant objects of consent and obligation are. Surely you don’t lose an obligation to drive on the right side of the road simply because you don’t consent to doing so; you have an obligation to drive on the right side because you’re driving and that’s the convention our community has settled on (and hence because that is the authoritative rule; you have this reason because the law commands it), and while we could easily construct some scenarios in which you had good reason not to drive on the right side, absent such special, overriding reasons, you have decisive reason to drive on the right, and nothing about your will makes any difference to this, particularly not anything about your will independent of substantive reasons that are prior to your will (when you have good reason not to drive on the right side, it’s not going to be because you don’t consent to driving on the right side). Of course, you might just opt out of driving altogether, and so perhaps your obligation to drive on the right side of the road depends on your consent insofar as your driving at all depends on your choice to drive or not. But not everything is rationally optional in the way that driving is (and I’m not sure driving really ends up being rationally optional for everyone in every circumstance). You have an obligation not to initiate physical assaults on your neighbors, too, not because you have opted in to the conventional practice of not assaulting people, but because any reasonable pursuit of a good human life requires that you participate in forms of social life that demand, as a minimum, that we not initiate physical assaults on one another absent some extraordinary considerations. Your consent isn’t the measure of reasonableness here; it is unreasonable for you to refuse to consent to such norms, and your consent is measured by that reasonableness rather than being the measure of it. Perhaps you understand ‘implicit consent’ very broadly, but I don’t see why your will is supposed to play a fundamental role in determining what you have reasons to do. I can readily understand how your free decisions, inclinations, and so on can make it more or less reasonable to choose among numerous rational options, and how, given such choices, you become obligated only as a result of your will (in just the way that I have obligations at work that depend on my voluntarily taking on the position I hold at work). But I take it that what Michael is sketching out, and what I am joining him in finding promising, is a view on which our participation in political community is not rationally optional in the way that my participation in the institutions of my workplace is rationally optional. The language analogy works well for this because for most of us, participating in the use of our native language is not optional. Sure, if I become sufficiently fluent in German, I could choose to abandon English and so not be under any obligation to the rules of English (perhaps; in fact I have a hard time envisioning a circumstance in which it would be reasonable for me to opt out of participating in English). You suggest that this analogy is poor because it is a case of implicit consent, but what strikes me about it is that my will has little or nothing to do with making it reasonable for me either (a) to use this language or (b) to adhere to its rules when I use it. I could intentionally violate its rules: Irfan hately fullest in ways chickenish blow. The point is that I can’t have good reason, absent special circumstances — like illustrating my ability to voluntarily violates the rules — to violate the rules or to opt out of it. I don’t see that my will has any fundamental role to play in explaining why I have these reasons. I suppose we could say that I have consented ‘implicitly’ to use English and to follow its rules, but what seems to matter is that I already have decisive reason to use it and to follow it rules, and if I consent, it’s only because I’m not flagrantly irrational — and if I were flagrantly irrational, it wouldn’t make a difference to what I have reason to do.
LikeLiked by 1 person
I can’t see that my obligation to drive on the right side of the road has anything to do with the authority of convention, let alone the authority of the law. I should drive on the right side of the road because I have an obligation not to drive in such a way that I’m likely to smash into other drivers, and given that most other people are driving on the right, that means my doing so also. My obligation would be exactly the same if everyone else were in self-driving cars that they didn’t know how to change the programming of, and so everyone else’s driving on the right were not the product of any convention, let alone any law.
LikeLiked by 2 people
What would be the case in some counter-factual possible world doesn’t have any bearing on why you have the reasons you have in the real world. In the real world, people drive on the right side because that is the conventional practice the law has prescribed. Your obligation not to drive in such a way that you’re likely to smash into other drivers plainly does not yield an obligation to drive on the right side of the road independently of the convention prescribed by the law. Of course, the convention prescribed by the law would not yield that obligation if you didn’t have the prior obligation to drive in such a way as to not crash into others. But the convention settled by law is not eliminable here; it’s part of why you do in fact have reason to drive on the right side.
I don’t know that self-driving cars are really a counter-example anyway, since those have to be programmed by people. But even if they were, appealing to them would be like holding that I don’t have an obligation to pay you $5 because I promised to pay you $5 on the grounds that I would have an obligation to pay you $5 if I had promised Michael to pay you $5, and what really does the work is my obligation to fulfill my promises, not the fact that I made you a promise. The latter depends on the former, but the former isn’t sufficient.
I take it that law, as opposed to convention alone, is relevant here just because there is in fact a law in place that shapes what we have good reason to do on the road. I do not suppose that purely conventional rules would be insufficient. I think they would be deficient, but that’s a different matter.
LikeLiked by 1 person
Well, counterfactuals are relevant to explanation; if X would be the same with or without Y, that undermines the case for saying that Y is the reason for X. (Of course there are complicated questions of overdetermination, but leave those aside.)
So, imagine three worlds. In world 1, most people drive on the right because most other people drive on the right; it’s just an emergent convention. In world 2, most people drive on the right because the laws tells them to. (I take the real world to be a messy mix of world 1 and world 2.) In world 3, most people drive on the right because in their world-3 version of the Bible, it says “On the right shalt thou proceed alway, for the leftward way is sinister and vain.”
Now if I suddenly find myself in world 3, I have an an obligation to drive on the right (because of the not-crashing-into-people thing). Now in world 3, that practice exists because of their Bible; but I can’t see that MY obligation to drive on the right commits me to recognising the authority of their Bible. So, well, ditto for worlds 1 and 2.
LikeLiked by 2 people
Well, it may be a quibble, but I reject your initial formulation there, at least as a characterization of your earlier argument. If X would in fact be the same in our world even without Y, then, setting aside overdetermination problems, Y is not the cause of X. But that’s not how your examples work; they work by purporting to show that we could get X in some other way. But the mere fact that we could get X in some other way does nothing to show that we aren’t getting it in this way here and now — that would be like claiming that the stain on my tie can’t have been caused by my spilling coffee on it, because it could have been caused by my spilling tea on it. But this is just a quibble.
I take it that the situation in world 3 collapses either into that of world 1 or that of world 2; either this is just a convention or the Biblical injunction is part of, or a source of, a legal system. I’m supposing the convention and law are authoritative when they provide recognizable social rules that settle on one among many possible acceptable ways to solve a co-ordination problem such that, once that solution is adopted, to act contrary to it would be to act unreasonably. Even in world 3, the content of your reason (to drive on the right) is determined in part by the existence of this social rule adopted on Weirdo Biblical grounds. Of course it gives you reasons only given that you already have some other reasons to which this rule appropriately connects, and not just any rules or commands that this conventional or legal system presents would likewise give you reasons — if the Weirdo Bible commands you to sacrifice your first-born son, it will not give you reason to do that, and if most of its commands are unreasonable in this way, then the system as a whole will fail to give you any reason except wholly incidentally.
If it helps, the view I’m inclined to is not that convention or law are necessarily authoritative, but that they can be and often are. I’m curious about your own view as an anarchist: I know you don’t recognize state authority, but I seem to recall you somewhere discussing law and custom without the state. Is your view that stateless law and custom are authoritative but depend on consent, or that they aren’t even authoritative?
LikeLiked by 1 person
Your obligation not to drive in such a way that you’re likely to hit others happens to involve reference to the law (or convention), but doesn’t depend on the authority of law (or convention). The explanation for why driving on the right is instrumentally required for not hitting people makes reference to the existence of the law as a causal fact but not to its authority as being the relevant explanatory factor. The law’s existence explains why people think and act as they do, i.e., tend to drive one way rather than another. It doesn’t entail that the law itself has authority.
LikeLiked by 1 person
I take it that authoritative rules or commands operate by shaping the content of what I have reason to do. It may be that you only recognize the law as a causal source of practices that make it instrumentally rational to act in one way rather than another. I agree that that wouldn’t be enough for genuine authority. But it is not the only way that conventions and laws can give us reasons: they can and do give us reasons because they are reasonable ways of addressing co-ordination problems, where the adoption of the rule, whether by custom or legislation, is a reasonable way of settling on one among many possible solutions to the problem. This seems to me to go beyond merely shaping the causal conditions of my action (though of course it is open to any of us to look at custom and law this way) because these are reasonable ways of settling on solutions, and they give us good reason (when they do) whether or not we recognize them as such. I take it that the view I’m trying to sketch out here does not collapse into your view that the reasons to obey the law are reducible to reasons to do what is already just independently of the law — so I understood your claim that we have obligation to follow the law not because the law has authority, but because justice does — because, as you have recently emphasized in conversation, what justice requires is often indeterminate prior to some determination via social rules, and law is a rational way of providing that determination.
LikeLiked by 1 person
I agree with Roderick here. Imagine a case in which drivers decided unanimously, amongst themselves, to flout the law with respect to which side of the road to drive on. Would the old rule have any “authority”? No. It never had any “authority” in the first place. If we all unanimously decided to change the convention from driving on the right to driving on the left, the latter convention would have authority over us. We could (logistical considerations and matters of habituation aside) toss the old conventions out like trash.
It just makes prudential sense and exemplifies justice to drive in the same direction as everyone else; doing the reverse is instrumentally irrational and unjust. But neither the irrationality nor the injustice involved are explained by the authority of law or the authority of convention. Granted, this is an outlandish thought-experiment on logistical grounds, but the conceptual point it makes is clear enough.
LikeLiked by 1 person
The outlandishness of the thought experiment, though, lies in supposing that we could solve co-ordination problems like these via unanimity. We can’t. The alternative is some form of authority, whether legal or conventional.
LikeLiked by 1 person
Not only thought-experiment: http://realscandinavia.com/this-day-in-history-swedish-traffic-switches-sides-september-3-1967/
LikeLiked by 1 person
That’s a case of a change in the law, though, not a case of mass defiance of the law.
LikeLiked by 3 people
David,
I think my comment under the “Nullification of Consent” post responds to the parts of your comment above that I haven’t responded to here.
https://irfankhawajaphilosopher.com/2019/01/05/what-i-should-have-said-before-about-nullified-non-consent/comment-page-1/#comment-3924
LikeLiked by 1 person
I’m curious what anyone of thinks of the claim I made before, that the phrase “involuntary participation” is a contradiction in terms or a flagrant, even Orwellian misuse of language. There’s a vast range of verbs and verbal nouns, including “participation,” which all seem to presuppose voluntariness as part of their very meaning, so that it would be considered superfluous to qualify one’s use of the word by “voluntary” every time one used it. By the same token, someone who insisted on using “participation” to cover both the voluntary and the supposed involuntary case would be guilty of equivocation. There is no “involuntary” case of participation. We have a different word for supposed “involuntary participations” (conscription, or in milder cases, takings in the sense Epstein uses) because it’s a fundamentally different thing altogether.
If I say, “I wrote a blog post,” it’s understood that I voluntarily consented to write one; I don’t need explicitly to add that I voluntarily wrote one. Same for “having sex.” If I say, “I had great sex last night,” it’s understood that I don’t mean that I did so by raping someone or being raped, or even had sex in a case where the issue of consent was unclear. “I had sex” means: I had the voluntary, consensual kind. If “I had sex last night” were uttered by a rapist, the claim would justifiably be thought to involve deception, and if uttered by a victim of rape, would be thought to involve some kind of severe emotional repression or self-deception. “I had sex” just is not the appropriate locution for the atypical case of non-consensual sex. (At least I like to think that that’s the atypical case.)
“I flew to Tel Aviv” means “I entered into voluntary, consensual relations to fly to Tel Aviv,” not “I was flown to Tel Aviv after being kidnapped by Mossad.” Same with “I got in the car,” or “I bought a house,” or “I accepted a job,” “I got some work done,” or “I went running” or “I got married,” or “I drove down the Parkway,” and so on. It would be silly in each case to specify that the speaker voluntarily consented to get in the car, buy a house, accept a job, got some work done, went running, got married, drove down the Parkway. That’s understood. If someone then refers to the cases of involuntarily getting in a car, buying a house, accepting a job, doing work, running, getting married, or driving down the Parkway, that requires explicit qualification. It would be linguistically absurd for someone to be referring to this latter involuntary set of cases, not make reference to the involuntary character of the case, and then blithely say, “Well, I use the phrase ‘get in the car’ univocally for both cases: the case where you voluntarily get in, and the case where you involuntarily get in.”
How is “participate” or “participation” any different? Isn’t it understood that if you participate in something, you do so voluntarily and by consent? And isn’t it likewise understood that when you’re engaged in some task involuntarily, that isn’t properly speaking participation at all, but something else?
LikeLiked by 1 person
I’m inclined to think that the strength of this argument varies by the verbs you’re using, but that in most cases it’s indeterminate as a matter of ordinary language. One reason for that is that “involuntary” is itself ambiguous and, as ordinarily used outside of stipulated technical contexts, certainly allows us to describe people as doing many things involuntarily, including participation.
I take it that you agree that if three guys hold guns to your head and credibly threaten to shoot you unless you do what they say, your doing what they say, and doing it only because you don’t want to get shot in the head, can rightly be described as involuntary. Certainly it seems sensible to say that you did not consent (otherwise I’m not sure what bite your insistence on consent as a condition for authority would have).
Now, among the things that you can do solely because some guys credibly threatened to shoot you in the head include getting into a car, going running, flying to Tel Aviv, driving down the Parkway, and writing a blog post (perhaps they coerce you into writing a pro-Israeli piece!). It strikes me as possible for you to marry someone for this reason, though there may be some complications there (do marriage vows depend on sincerity for their validity? They do according to some lines of thinking…). The only way I can see to deny this would be to hold that these cases count as voluntarily getting into the car, going running, &c. But unless ‘voluntarily’ and ‘by consent’ come apart — and while I can imagine some theoretical contexts in which someone might want to use the terms that way, they don’t unambiguously work this way in ordinary speech — then this line would require you to treat cases of coercion as cases of consent. The only other apparent alternative would be to say that you did not get into the car at all, did not fly to Tel Aviv at all (even if you were the pilot!), did not write the blog post, and so on. That strikes me as either patently false or a disguised stipulation for a new, non-standard way of talking.
‘Participation’ is a pretty broad word, and I don’t see any obvious incoherence in saying that someone was coerced to participate in an activity. Your gunmen coerce you into participating in their scheme to drive to the airport and fly to Tel Aviv to write pro-Israeli blog posts; you didn’t consent to any of this, because you did it solely under the coercive threat of violence, but you sure did participate in it. Of course, it can also make sense to say that you didn’t participate in it. But I take it that this is just because there’s an ambiguity in ordinary language’s use of “participate” — which is contrary to your view above, I think.
One could certainly exploit that ambiguity for Orwellian ends. But it doesn’t strike me as inherently Orwellian. If we’re going to be clear about these things, we have to refine our use of language beyond its ordinary uses. We’re relatively free in how we choose to do that, provided that we’re clear about how we’re doing it.
LikeLiked by 1 person
damn, I’m good at forgetting to check off ‘notify me of new comments via email’
missed this discussion but I’ll try to get caught up
LikeLike
Small point. The voluntary/involuntary issue is distinct from that of the normative (whether ‘normative’ is cashed out as ‘rationally’ or otherwise) optionality or non-optionality of continuing to engage in what one is doing. But the latter point – we have clarified – is more important for defending non-consent-based authority on the model suggested. Right?
Another small point. I take it that since, in most or all cases, there is a voluntary element to participation in a social practice or institution, there is also, in most or all cases, an at least semi-plausible case to be made that the voluntary element constitutes (tacit, implicit) consent even when there is no explicit consent. So we would need, from the only-consent-based-authority folks, an account of implicit consent (and of why it counts as a form of consent, not something else).
And another (there I go…). I think it is important that, on a certain model of non-consent-based authority, the obligation to obey (the right people, in the right circumstances, etc.) is based on more fundamental obligations (like the obligation to do one’s fair share when one is involved in the relevant sort of collective endeavor with others). The move here is just this: if one’s fair share is complying with the rules (and specifically a rule of authority), then – it seems – you have non-consent-based authority. Whether or not this is the case ever in our world, this is a strong case for (a sort of) non-consent-based authority in some world (that is normatively very, very similar to ours). Of course, as presented, one could opt out of the obligation to obey by opting out of the relevant social practice. Hence, we need the non-optionality element in order to get not only non-consent-based (but participation-based) authority but also such authority being non-optional. This step is more controversial because it is not entirely clear what sorts of non-optionality will or will not do the work and are or are not relevant to putative authority situations in the real world.
(I think that, for Estlund, all of this is insufficient – hence his “quasi-voluntarist” condition (that is satisfied by the normative consent condition – it has to be that we would be wrong not to consent). At least as a purely conceptual point, this seems wrong. In principle, there can be authority without any (or very many or very strong) will-related conditions being met. I’m inclined to think that, for broadly liberal reasons, in adequately propitious conditions, consent-involving conditions (probably that need not involve actual consent) need to hold in order to get authority. I’m not, however, convinced that it is easy to achieve the propitious conditions or that they are ever in realistic conditions perfectly achieved. And so, in principle but also simply when the going gets rough enough, there is political (and probably other) authority that does not meet even the quasi-voluntarist or involving-your-will-in-some-important-way condition (let alone anything stronger, like actual consent). And I think this is probably because something like the above “fundamental obligation realization” model (plus non-optionality in participation) applies to our world. But we should start out recognizing that this model works for generating non-consent-based authority – and, with the addition of non-optionality in participation, non-consent-based authority that is non-optional – at least in principle.)
(Arguably, Estlund’s “important task” condition does the same work as my “normative non-optionality.” His normative consent condition is different in that it focuses on reasons to consent to comply or obey – and reasons to consent to comply or obey that are independent of reasons to comply or obey – and is, in this way, paying more respect to individuality and the will.)
LikeLike
To clarify, I’m not really one of the “only-consent-based-authority folks.” Although I think defenders of authority tend to look at non-consent through consent-coloured spectacles, I don’t think the presence or absence of consent is crucial to most of the issues we’re talking about here; and that’s because I don’t think consent is either necessary or sufficient for authority.
Not necessary, because, for example, you have authority over your own body and property; you can order me to leave them alone for any reason you like, without my having consented to anything.
And not sufficient, because some rights are inalienable (in particular, my right to control my own mind, body, and actions), and I cannot surrender them to you even if I want to. (Contracts over services I interpret, in Evers-Rothbard-Barnett style, as conditional transfers to titles over external goods, thus ruling out specific performance: https://mises-media.s3.amazonaws.com/1_1_2_0.pdf?file=1&type=document )
The kind of authority that states claim is thus one that I don’t think would be justified even if people consented; though I also think people haven’t consented, and in most cases cannot meaningfully consent, to the state’s authority.
LikeLiked by 2 people
Thanks for the clarification, Roderick. I think your case of one having authority over one’s own body (personal space, personal property) is important and I need to think about it more. This case does seem to imply authority over others: when there is indeterminacy in the relevant more-fundamental obligation, within a range of determinations or specifications, I get to decide whether you are obligated not to do this or that thing that affects my body (personal space, personal property). And I make it so by engaging in relevant speech-acts (commanding, ordering – but also objecting, requesting, declaring, etc.).
LikeLike
Again just a quick reply to a bit of what you say here, Irfan. I agree, and conceded to David, that the important thing is a certain kind of normative inescapability (given roughly by ‘participation in practice or institution X is an integral, ineliminable means to my realizing many or most things that are valuable for me’) – not whether my initial or on-going participation is voluntary or not. It also seems at least plausible that a voluntary element to the participation is required. That would be another bit that I would need to add/change in my sketch to make it more adequate. It seems less plausible that this voluntary element would amount to a kind of consent (implicit consent) and work its “moral powers” in the way that consent or agreement does. Part of the reason for this (and part of my reason for being skeptical about implicit consent or at least it working in the same way and for the same reasons that consent proper does) is that consent seems to work via a mutual, clear understanding of terms.
LikeLiked by 1 person
I think the question is whether the escapability is that of an obligation or of someone’s authority over you. An obligation can be inescapable without involving anyone’s authority over you. I can have an obligation to contribute to the state without recognizing its authority. In fact, I could deny its authority and just think that I have an obligation to contribute because the state has monopolized some good that we need, indeed that I need, and it would be unfair to consume the good without contributing to the institution (currently) making it possible.
But it doesn’t follow from my having or accepting the preceding obligation that I authorize or recognize the authority of the state, even if the state were to command me to satisfy the very obligation I ex hypothesi have. If I think that roads should be privatized, but I live in a regime where the roads are publicly owned, driving on public roads may be inescapable. As a result, I may have an inescapable obligation to contribute to those roads. But it doesn’t follow at all that I recognize the authority of the State to build roads, or to command me to support them. Ex hypothesi, the reverse is the case.
Rational inescapability doesn’t entail authority in the absence of consent to the authority. I can grant the obligatory character of a course of action that justice demands without granting the authority of the institution commanding that the action be done. Estlund writes as though we could collapse the obligation not to free ride and the non-consent-based “obligation” to grant the authority of government. I reject that conflation. In fact, his conflation of the two things strikes me as something like the boss/expert fallacy. This is like a boss/obligation fallacy.
Slightly different example: Suppose I have an imperfect duty to ameliorate poverty, and suppose that given the time that’s elapsed since my last effort to help a poor person, my imperfect duty directs me to help the very next (deserving) panhandler I meet. Suppose I meet one, and he is deserving. Do I have an obligation to help him? Ex hypothesi, yes. But does he have authority over my wallet or bank account, or a literal claim on me? No. This is slightly different from the case of the State, but close enough, I think, to drive the relevant point home.
LikeLike
Other “not rationally optional, but not literally coerced” areas in addition to the language and which-side-of-the-road rules would be some others that have been or anyway could be without State law enforcement: Which money, or for that matter, the whole way of life by commercial exchange. One is born into the way it is and its advantages, although I suppose one could try to get land and live in a self-sufficient way, and that would seem off-hand a way of life much more deliberately chosen. But then there is the land system one has about one. Some buy-in with the social conventions about that too seems to be the only viable way of being somewhat left to one’s plan for self-sufficient, solitary life.
So far Walter and I have resisted getting a smart phone. We like the greater solitude. But we’re retired, and I get the impression that having no smart phone is not really a sensible choice anymore for people still in commercial work. Like the automobile or other modern transport, I imagine, the fun and the work are mixed together, and not many would seriously complain about the impracticality of opting out.
I incline to think that one is grown up into an adult enmeshed in all sorts of conventions, and results of markets and of violent conflict, including rules of property and rules about rule-making, about which the obligation to make the best life for oneself in the enmeshed situation is the sufficient and original obligation. Consent to a lot of that may be pretty close to consent to go on living.
LikeLiked by 2 people
We probably should be careful not to treat just any strong reason that we have to act in a certain way stemming from social conventions as a case of authority. But you’re right, I think, to emphasize other cases where state enforcement isn’t at issue; authority is one thing, coercive enforcement is another. What I think would be missing in the smartphone example, though, is any clear notion of a rule or a command, and I’m not sure that the reasons to get a smart phone would be exclusionary in the way that authoritative commands are; sure, you might have really strong reason to get a smartphone, and those reasons might outweigh reasons you have or take yourself to have not to get one, but when I have an exclusionary reason and treat it as such, I don’t weigh it in the balance with other reasons — I don’t, to take my earlier example, go ahead and consider whether I should teach Kant instead of Rousseau. Social conventions can exert an awful lot of pressure on us, and can perhaps even give us decisive reasons to do things that we would otherwise not think worth doing — like owning a smartphone, wearing a tie, etc. But authority enters in where there is a fairly clear rule, often with an institution or individual issuing commands: I wear a tie at work not simply because that is the convention, for instance, but because our faculty rule book requires male faculty members to wear ties to work (I also like ties and would probably still wear them even if there were no such rule, though, so it isn’t the only reason I wear them).
More generally, though, the sorts of considerations you set out do illustrate, I think, how our action depends on a broader context of social practices and rules that shape what is reasonable and unreasonable for us to do quite independently of our consenting either to those practices and rules or to what they make reasonable or unreasonable to do. From my point of view, this helps to show how relatively non-fundamental our will or consent or agreement is in determining what we have reason to do or not do. Of course, consent or agreement is often of considerable normative importance. I just don’t think it can be as fundamental as many liberal thinkers seem to have thought.
LikeLiked by 2 people
Agreed on all of that. Also I like your account of the reasons involved in authority (exclusionary reasons). I’m not sure how this square with Estlund’s characterization of authority, but I’m thinking they are compatible.
LikeLike
For clarity’s sake, I note that my account of authority in terms of exclusionary reasons is just (what I take to be) fairly standard, though of course not wholly uncontroversial, fare in philosophy of law, following Joseph Raz (Practical Reason and Norms), but embraced by those who think that law is generally authoritative (e.g., Finnis) and those who deny this in one form or another (Raz himself). I think some who deploy the notion of exclusionary reasons take obligations in general to be exclusionary reasons. I’m not sure we should think so, given that some things often taken to be obligations seem to yield pretty easily to contrary reasons — e.g., I promised to meet you for lunch on Tuesday, so I had an obligation to meet you, but I woke up with stomach flu, so I didn’t need you to release me from the obligation in order to be released from it, and you would be unreasonable to demand that I fulfill it given that I’d be miserable and in danger of vomiting on you, I just had to let you know that I couldn’t make it (and in different circumstances, it would not have even been necessary for me to let you know ahead of time, only to explain afterwards). But perhaps this is just a difference of degree, not kind; some legal obligations might cease to apply in certain circumstances, too, and there is no general requirement that exclusionary reasons exclude all countervailing reasons. In any case, I take it that we might have a conclusive reason to do something in a given circumstance even if we do not have an exclusionary reason to do it: given that I still have a cold, I have conclusive reason right now to take some more cold medicine, though that reason is not such as to exclude my failing to take the cold medicine if I were to have other, countervailing reasons — if, say, I were pretty sure that the cold medicine would make me sleep through my alarm in the morning and be late to work.
And on that note, I will take cold medicine and set my alarm.
LikeLiked by 1 person
Thanks, David. I now remember once knowing about this way of thinking of obligation, from reading Raz.
Feel better!
LikeLike
I see that my brief absence from the site has led to the promulgation of all manner of noxious heresy. But before initiating a jihad against it, I wonder if I could make a procedural suggestion: Michael’s last three posts are all reactions to the early chapters of Estlund’s Democratic Authority, and are all essentially on the same topic, the problem being (as I see it) that three sets of comments on essentially the same topic are now distributed across three different posts with material relevant to one post being discussed in two other places. Maybe we ought to take a step back and clarify in a summary way what we each take the issue to be?
Substantively, I have a worry that obligation is being conflated throughout this discussion with authority, an issue that comes up in one of the other posts, but is hard to discuss here without going there, discussing it, and then (awkwardly) coming back to report what was said there. I was tempted to write a separate post differentiating authority (where I regard consent as playing a crucial role) from obligation (where I don’t). But doing that might make the existing problem worse. On the other hand, continuing the discussion in the present way has its own downside of talking past one another (which I’m afraid is what’s happening).
First talking-past-one-another problem, for me: I thought we were discussing authority this whole time, not obligation, and I was primarily addressing issues of authority, not obligation (on the assumption, recognized elsewhere, that they’re different). As authority and obligation are not reducible to one another–I would say–the role of consent can’t directly be inferred in the one case from the other. You can be obligated to pay your fair share of something without anyone’s having authority over you to pay it. The obligation to pay may or may not arise by consent, even if consent is required for the authority relation. Asserting (correctly) that someone has an obligation to pay says nothing about who has “authority” over that person, and asserting (correctly) that someone has authority over a person doesn’t, on Estlund’s account, tell us whether that authority is legitimate or not, or permissibly involves coercion or not.
Second (related) problem: the authors we’re discussing (primarily Estlund, secondarily Brennan, and in the background, Huemer) use the terms “authority,” “obligation,” and “legitimacy” in subtly different ways, and the differences matter to the discussion. The authors also differ on what follows from being in the authority relation, in particular what follows about the permissibility of coercing the person in it.
Counterintuitively (to me) Estlund thinks that authority and coercion can be decoupled while also thinking (apparently) that authority is not reducible to obligation. This raises the question (to me) of why we need the concept of “authority” at all. If the claim is that authority entails X creates obligations for Y “by command,” I would simply say that I don’t accept the legitimacy of the concept. A command doesn’t by itself create anything but noise, much less obligations. Put more decorously: I would say that the sheer issuing of a command is never a sufficient condition for someone’s being obligated to do or omit something. I sometimes get the impression that Estlund thinks otherwise, but so far I haven’t seen anything to make his thinking-otherwise plausible. Anyway, if that’s what authority is supposed to be–X’s command creates an obligation for Y qua command, full stop–I’m an authority skeptic. (To be differentiated from: Y has an obligation to do something, or Y consents to be commanded by X.)
Third problem: the differences in the way these authors use these terms is in each case a matter of stipulative definition, but it’s a separate issue what’s the best (clearest, most explanatory) way of using these terms, and whether any are reducible to any of the others.
So my suggestion would be for each of (who wants to) to write a single brief summary statement of what we want to say so far on authority/obligation/legitimacy/consent in a single new post (which we can do if we each have Editorial powers on the blog, as I think we all do).
LikeLike
Having missed this reply before I replied to a bunch of others, I have contributed further to the problem you’ve rightly identified. mea culpa. Perhaps we should initiate a new post and leave these two alone?
For now, though, let me say a few things in response to the above:
1. If these different authors are using terms like ‘authority’ in different ways, we definitely need to note that. I’m not so far convinced that Estlund’s way of using it is substantively different from my own (which is not mine, but a widespread one owing its immediate paternity to Raz), but maybe I’m wrong. I don’t know how Brennan and Huemer use it. So it could be helpful to have a catalogue of uses.
2. Nobody here, so far as I can see, is conflating obligation and authority or even (strictly) reducing authority to obligation. I myself hold — and I think that Estlund and Michael hold — that genuine practical authority involves obligation, but that is a far cry from conflating the two or reducing one to the other.
3. You yourself seem at points to be conflating practical authority and the right to coerce. I take them to be conceptually distinct, and it’s an open question so far as I’m concerned how they relate. This is hardly a weird opinion; it is, as I say, a widespread notion in contemporary analytic jurisprudence, and though Estlund seems not to be drawing on that literature, he reproduces the distinction: his ‘authority’ is a moral power to create obligations via command, his ‘legitimacy’ is the state’s right to enforce its commands, and he explicitly denies that authority entails the right to coerce (Democratic Authority, p. 10). So to the extent that you want to treat ‘authority’ as though it includes the right to coerce, I think you’re running against the grain; certainly authority and coercion are conceptually decoupled in much analytic philosophical work on legal authority. As you know by now, I’m not a stickler for terminology, provided we’re clear. Perhaps you think that there’s no room for a concept of authority that is neither reducible to obligation nor backed by the right to coerce; I’m not sure that’s what you do think or what would be most consistent with what you’ve said about consent so far — it seems to me most consistent with what you’ve said to recognize authoritative commands not reducible to prior obligations but dependent on consent and not involving a right to coerce — but even if it’s what you think and it’s right, it wouldn’t clearly license a rejection of this way of using the term ‘authority.’ I agree that we can ask which of these uses is the clearest and most explanatorily valuable; but we don’t need to insist on using the term in this way or that in order to argue about which of these it is.
4. I’ll stop replying on these two most recent posts of Michael’s for now in order to prevent exacerbating the current chaos (it’s already more than I think I’ll be able to keep up with).
LikeLike