Boundaries of Authority

A. John Simmons is one of our most distinguished theorists of political obligation. His early book Moral Principles and Political Obligations (Princeton University Press, 1979) set the standard for philosophical writing about what we owe to the state in the way of support for its institutions and obedience to its laws, and he pursued this same theme in Justification and Legitimacy: Essays on Rights and Obligations (Cambridge University Press, 2000) and in his contribution to Is There a Duty to Obey the Law? For and Against (Cambridge University Press, 2005). Simmons has also contributed greatly to our understanding of the analytic workings of John Locke's political philosophy in his books The Lockean Theory of Rights (Princeton University Press, 1992) and On the Edge of Anarchy: Locke, Consent, and the Limits of Society (Princeton University Press, 1993).This bibliography might make it appear as though Simmons takes a rather old-fashioned view of the problem of political obligation, approaching it through a Lockean lens of consent and exploring in a conventional way the limits on what the state can demand of us. In fact, his work has always been wider-ranging and more innovative than that. The notion of legitimacy has been left undertheorized by most political philosophers; or, to the extent that it is theorized, it has been twinned misleadingly with either political obligation or political justification. But Simmons explored it most helpfully in an important 1999 article in Ethics, “Justification and Legitimacy.” And now in a new book, Boundaries of Authority, he brings all this together with work he has been doing on the territoriality of the state. The discussion of territoriality is in itself an important addition. Simmons is well aware of the emergence of a new agenda in political philosophy, which addresses the basis on which the world is divided into a couple of hundred geographically distinct entities each asserting its own identity and a distinctive basis for its authority over the land as well as the people it controls. In Boundaries of Authority, John Simmons engages with that new work productively, fairly, and in considerable detail.I want to say right away that Boundariesof Authority is political philosophy at its best. It draws boldly but sensibly on canonical work in historical political theory (John Locke in particular, but also Thomas Hobbes, Immanuel Kant, and Henry David Thoreau). It undertakes some difficult analytic clarification of the normative questions at stake (criticizing Razian accounts of authority, for example). And it shows how the philosophical arguments it develops can be brought to bear on real-world problems (such as sovereign resource claims and recent moves around the world to restrict immigration).The book is wide-ranging, but its central focus is clear. Simmons is seeking an account that explains why particular people are bound normatively to particular states in a way that dovetails with “possible moral justifications of states' territorially based claims” (1–2). His own answer, which he defends in part 2 of the book, is Lockean in character. People come to be obligated to a particular state by willingly accepting its authority and by voluntarily joining the political community whose state it is. They consent to be governed, and the territoriality of their political community is determined in the first instance by the accumulated real estate belonging prepolitically to its consenting members.The latter part of the Lockean case is potentially important for the application of Simmons's account to issues of resource ownership and migration. States claim the right to control the minerals and petrochemical wealth beneath the surface of their respective territories; and they also claim the right to exclude outsiders from venturing into the territory they control. Both these claims are property-like: they are analogous, respectively, to an individual owner's rights to the soil of her fields or her garden and to her right to exclude people from entering her property. Simmons's Lockean approach opens up the possibility that these rights are not just property-like but rights that are actually rooted in private property, inasmuch as the territory of each political community is determined by the real estate that its members have willingly transferred to its jurisdiction. Simmons's discussion of this possibility is rich and tantalizing, but I think in the end he is reluctant to pursue it dogmatically. His (qualified) rejection of the sort of open-borders claim that theorists like Joseph Carens have pursued is not so much the resultant of all the members' accumulated individual rights to exclude; it is based more in the fact that they have formed this community willingly for themselves and not others. I think too—though, again, it is not entirely clear—that Simmons wants to say something similar about resources. Instead of just arguing that if an individual owns the minerals beneath the surface of a piece of land that he owns, then the state to which he belongs gets rights or at least jurisdiction over those minerals, Simmons says instead that if the minerals below the land feature as necessary for the life plans of those who have banded together to form a political community in the relevant territory, then the state that they have formed has property-like rights over them. It is not an approach that makes the state into a Lockean owner, as in Cara Nine's theory. But it reflects the moral importance of the individuality of the political entity that particular individuals have created for themselves in a particular place. As I have said, the positions here are not crystal clear; but I actually take that to be a virtue of Simmons's reflective rather than assertive approach in the final chapters of the book.He certainly gives the Lockean theory a run for its money. Simmons has been remarkably persistent in his attachment to Locke's consent theory over the years, despite its many difficulties and obscurities. Few philosophers support the Lockean account these days (either Locke's view of property or his views about tacit consent), but Simmons makes the best case that can be made for taking seriously the rather casual comments in chapter 8 of the Second Treatise (sec. 120) about each individual uniting his landed possessions with the government whose authority he accepts. He believes that Locke explains the particularity of authority and territory “in a natural and intuitive way” (122) and, more than four hundred years after the Two Treatises were published, he doesn't think any better account is available.I will say something about Simmons's critique of the most plausible alternative view in a moment. Before I do, however, let me mention the most serious objection to the Lockean account. Why is consent necessary? Many duties are not dependent on consent in this way—one's duty to respect others' property, for example, at least on a Lockean account. The need for property acquisitions trumps any demand for consent on the part of those affected by them: “If such a consent as that were necessary, Man had starved notwithstanding the Plenty God had given him” (Second Treatise, sec. 28). Why isn't this true also of the state institutions that we need? Why is our support for institutions that keep order and attempt to do justice optional, as though we would do no wrong to others if we refused to participate? Simmons acknowledges that, in the canonical work of Locke and Hobbes, individuals give their consent to political authority for reasons, and those reasons determine the nature and extent of the resulting obligation (117–18). In the voluntarist tradition, the relevant reasons are seen as self-interested. But what if there are other-regarding reasons too, moral reasons, reasons purporting to indicate what we owe to others? Is it still an optional matter whether we follow such reasons? May one respectably refuse for reasons of one's own or for no reason at all? The consent theory implies that one may.Simmons shows us how the Lockean theory might work but he does not really confront this in-principle challenge. He takes the moral wrongness of involuntary subjection to political authority as a starting point, asserting simply that the “only people legitimately subject . . . are those who are willingly subject” (116). Some attempt should have been made to say why. Is it because political obligation (like friendship) won't work if it is not based on consent? Is it because personal autonomy would be compromised unacceptably if people were required—consent or no consent—to participate in the maintenance of order and the doing of justice? But the compromising of personal autonomy is not in itself an objection to the imposition of many other duties on a nonconsensual basis.The objection I have been developing points us toward the most natural alternative to the Lockean view, which is found in the theories of John Rawls and Immanuel Kant. These are theories that “aspire to ground the state's political authority solely in its successful performance of its morally mandated functions (through its creating and/or sustaining an appropriate structure of political/legal institutions)” (60). According to Rawls in A Theory of Justice, we have a natural duty to support just or nearly just institutions and to play our part in the rules they establish. Their moral claim on our submission is a direct consequence of the functions they serve. According to Kant in “The Doctrine of Right” in his late work The Metaphysics of Morals, we are required as a matter of rightful conduct to come to terms legally and politically with those with whom we live unavoidably side by side and to settle between us the distribution of the resources in our vicinity. Like the principles of right in general, none of this is optional. The function served by institutions of positive law is too important to be left at the mercy of idiosyncratic preferences embodied in individuals' consent or refusal of consent. That, in general terms, is the alternative theory of the basis of political authority. In addressing it, Simmons is not particularly interested in Kant exegesis. He wants to confront modern structural-functionalist theories that take their lead from Kant, without necessarily adopting the whole architectonic of Kant's late practical philosophy.Simmons sets out and criticizes theories of this kind in part 1 of his book. I should say immediately that my own work is criticized in this connection: in the 1990s, I attempted a defense of the Rawlsian view in an article in Philosophy and Public Affairs called “Special Ties and Natural Duties” and the Kantian view in an essay in the Harvard Law Review called “Kant's Legal Positivism.” I have no complaints about the way this work is treated, nor, I think, should David Estlund, Anna Stilz, Thomas Christiano, or any of the other authors he discusses. Whether any of us accepts Simmons's criticisms or is convinced by the overall tenor of his approach is another matter. Simmons shows, fairly convincingly, why the idea of democracy is of no help to modern structural-functionalists: it begs the prior question of what entitles us to subject all persons (e.g., within a given territory) to some collective decision-procedure, even an attractive one (57). And he is adept at showing the difficulties that the structural-functionalist approach has to face in determining who exactly is subject to which political institutions. Maybe the approach can explain why individual clusters of population in an unevenly settled world need to respond to intra-cluster problems of order and justice by setting up discrete sets of political institutions. But as population expands and becomes more continuous over the face of the earth, he says the structural-functionalist approach cannot explain how some sort of “districting” even in the face of inter-cluster problems can justifiably be maintained (64–65). Or suppose the United States were to unilaterally move its boundaries south by a few miles, offering its own institutions of justice, order, and authority for the benefit of the Mexicans caught up in the move (109–10). What possible complaint could the Mexicans have, Simmons asks, on the structural-functionalist theory (apart from the poor quality of the American institutions they were now subject to)?These and similar considerations illustrate the importance, to Simmons's mind, of something like a Nozickian historical account, not only in our Lockean understanding of property but in our understanding of the formation and territorialization of particular states. A consent theory makes history matter: its outcomes depend on contingent historical facts about people's willingness or unwillingness to consent to the rule of particular institutions. Simmons is right to insist that structuralist-functionalist accounts have an obligation to explain why we should marginalize or downplay such history. In chapter 7, he addresses one such attempt to do so, which is my work on the supersession of historical injustice. That work has its difficulties, but even at its most convincing it could not fully discharge this obligation. Structuralist-functionalist accounts need to be more aggressive in arguing that the history of consent, particularly the willing actions of our ancestors, simply cannot be as determinative of political obligation and authority as the Lockean theory makes it out to be. This is not a criticism of Simmons; it is not his job to make his opponents' case for them.What he can be criticized for, however, is his concentration on the difficulties of the structural-functionalist approach, at the expense of any sustained consideration of the plausibility of the intuitions that underlie it. This criticism complements what I said earlier about Lockean consent theory. There is something morally implausible about the proposition that the viability of necessary legal and political institutions should depend on the contingencies of individual consent. And there is something appealing in the notion that the real claim that such institutions have on us depends in the last analysis on the moral necessity of the functions they perform. If anything like this is true, then we have no choice but to persevere in constructing theories of the particularization of authority, theories that are less vulnerable to Simmons's counter-examples. The success of those counter-examples is not enough to drive us away from the basic intuitions. We have to keep trying if we think some theory of this kind is correct. Simmons would be wise, then, to devote some energy to arguing against the plausibility of theories of this kind, rather than just showing that individual instances of it have not yet proved successful in solving the problem of particularization

Analytic philosophy · Contemporary philosophy · Epistemology · General interest · American Constitutional Law and Politics · Philosophy