Consent to State Legitimacy vs. Voluntary Obedience to Law?

Sorry to be so convoluted about the attributions and citations here, but Brandon Christensen over at Notes on Liberty drew my attention to this post by Arnold Kling on Yoram Hazony’s recent book on nationalism. I haven’t read Hazony’s book, but Kling’s post is meant to be an explication both for readers and interested non-readers alike. Here’s what he (Kling) says:

A long post, below the fold, offering my [Kling’s] charitable interpretation of what he [Hazony] is saying.

1. We have three options for government, two of which are very unpleasant: anarchy; repression; or legitimate government. With anarchy, people don’t obey the law. With repression, they obey with great reluctance and only if carefully watched. With legitimate government, they obey the law voluntarily.

2. Legitimate government means that people willingly make sacrifices, such as paying taxes and serving in the armed forces, to help sustain that government.

3. Contrary to the theories of John Locke and others, legitimacy does not come from consent. It first requires that people have a sense of commonality. This comes from common traditions and cultural focal points. These might include language, religion, holidays, moral codes, social narratives, etc. Without this sense of commonality, a state has to default to anarchy or repression.

I don’t understand this. Does anyone? Not a rhetorical question. Maybe it’s laid out in the book, but at face value, this set of claims makes no sense to me.

Claim (1) says that if we put aside anarchy or repression, we’re left with a legitimate government whose laws we obey “voluntarily.” That sounds to me as though the laws of a legitimate government are consented-to. If the government’s constitution is law, we would, presumably, consent to that, too.

Claim (2) says that if our government is legitimate, we “willingly” make sacrifices for it. That seems to imply that the sacrifices we make are consented-to along with the laws.

But claim (3) says that legitimacy does not come from consent. It seems to imply that consent is not a necessary condition for legitimacy, either. To avoid tangles about such jargon as “legitimacy,” “authority,” and the like: it says that no one need consent to a government before that government can justly or permissibly govern those it governs.

Maybe there’s no overt contradiction there, but the claims obviously do not cohere. If we obey the laws (including the constitution) by consent, and sacrifice for government by consent, why wouldn’t we consent to the legitimacy of government itself? What rationale is there for saying that people who consent to the constitution of a government don’t consent to the government itself? At a minimum, why wouldn’t we consent to the legitimacy of a government that does all and only legitimate things, or at least approximated doing so? Without an answer to such questions, it’s hard to see how claims (1)-(3) make even minimal sense.

Nothing in Kling’s explication of (3) addresses the relevant issue. You could reject Lockean consent theories and still endorse the claim that consent was a necessary condition for legitimacy. Rejection of Lockean consent isn’t rejection of consent. You could say that consent requires ethno-national “commonality” and still think that consent was a necessary condition for legitimacy: X’s being a necessary condition for Y doesn’t imply that Y can’t be a necessary condition for Z. So my bafflement remains.

Coming the other way around: People could have a sense of ethno-national “commonality” but fail to consent to the state. For instance: lots of Jews have lots of things in common without consenting to the legitimacy of the State of Israel. Is the legitimacy of the state then underwritten by ethno-national commonality sans consent? Does the state govern people simply because they belong to the same ethno-national group, whether they consent to it or not?

Questions in the same vicinity: a majority of the people on some territory might have a sense of commonality and, invoking that, consent to the state while leaving an ethnic or other minority outside of that perceived sense of ethno-national commonality or consenting cohort. Does the state then have the right to govern the minority community that fails to consent? Supposing they do, what did consent have to do with anything? How can it be said that a minority community that happens to live in the same territory as an ethno-national majority “willingly” obeys the laws of the state and “willingly” sacrifices to the state even if it actively refuses to consent to the state and actively rejects the functional equivalent of that state’s constitution?

This isn’t the first time I’ve read Hazony and been baffled, not just by what he says (or in this case, is understood to say) but by others’ reactions to it. I guess the first time was when Hazony brought Meir Kahane to my undergraduate institution, had Kahane defend the proposition that the Palestinians of the West Bank be driven out or killed in the name of “the virtue of nationalism“–and then defended him as the audience nodded in agreement and laughed at Kahane’s jokes. I’m disinclined to show such a person “charity” of any kind even thirty years after the fact, and don’t really see why anyone should. Cruel, I know. But in the world we currently inhabit, prudent.

(Apologies, couldn’t get the “Continue reading” tag to work on this post.)

John Allison at Trump Tower

Readers interested in John Allison’s appearance at Trump Tower may also be interested in Arnold Kling’s review of Allison’s book, The Financial Crisis and the Free Market Cure, which appeared in the October 2012 issue of Reason Papers. 

An excerpt: 

When it comes to the financial crisis of 2008, the conventional view seriously under-estimates the extent to which collectivization of financial risk was the cause of the problem and seriously over-estimates the extent to which strengthening this collectivization represents a long-term solution. I am in complete accord with Allison on that score. However, I do not share his view that there is a free market “cure.” At best, there are movements in the direction of the free market that would reduce the costs of regulation without increasing the risks of another meltdown. However, such changes will not be made as long as the conventional history of the crisis—which treats it as resulting from the loss of will to regulate—holds sway. And I do not believe that, in the end, Allison’s book will have much of an impact on converting those who hold the conventional view.

Read the whole thing here (4 page PDF).

H/t: Alison Bowles (for the WSJ article)