On Moral Justification and Political Legitimacy

I'm keen on a distinction A. John Simmons makes (can't remember where at the moment) between moral justification (i.e. of some action) and the legitimacy of an authority (i.e. political authority.) Like any thoroughgoing Lockean, Simmons accepts that we are only under a moral obligation to obey a government if we have consented to that government.

Of course, we all have pre-political obligations. We are all obligated not to intentionally kill others who themselves haven't violated any pre-political obligations. We are all obligated not to use the property of others without permission, and so on.

The question of political legitimacy is whether a government can establish other moral obligations, beyond the pre-political. If the government tells me to do X, and X is not something I'm morally required to do anyway, what conditions must be met if the government's decree is supposed to establish a new moral obligation to do X?

The typical answer here will have something to do with consent. For example, if I have previously consented to do what X tells me to do, and X tells me to do something, then I am obligated to do this. If I've consented to obey the law, then I am morally obligated to obey the law. And so on.

The problem is that most of us haven't expressly consented to obey the government in this way, and accounts of tacit consent are fairly implausible. Thus, it appears that the government lacks the authority required to establish new moral obligations. None of us is morally obligated to obey the law, except when the law forbids us from doing something our pre-political obligations forbid us from doing in the first place.

Simmons position amounts to philosophical anarchism. According to Robert Paul Wolff, what government lacks is the capacity to make binding commands of us -- commands that we would be obligated to obey over and above the pre-political moral requirements we are all subject to anyway. To the extent that a government lacks this capacity, that government is illegitimate.

I'm a philosophical anarchist in this sense. However, while I deny the legitimacy of government, I do hold that particular acts of government can be morally justified. For example, it's a good thing when the government stops one person from inflicting violence on another. It's good that some entity exists to stop people from carrying off my property.

If Superman existed and used his super strength to protect my rights, I would also think that was a good thing, even though I would deny that I had any independent reason to obey Superman's commands to respect the rights of others. To the extent that rights violations would occur without his presence, the world would be a better place with Superman in it

We have to be careful here: it might be that Superman couldn't be trusted to use his power only to defend the rights of others. He could use his power for evil as well as for good. To the extent this is so, we might prefer a world without anyone like Superman. But this would be an "all-things-considered" judgment: we would have to compare the good a Superman might do with the evil he could do, and draw our conclusions that way.

However, this would not change the fact that when Superman (or the state) upholds the rights of citizens, then Superman (and the state) is worthy of praise. But what we would not do is condemn Superman as an evil-doer (or the state as an inherently criminal enterprise) on those occasions in which Superman/the state upheld individual rights.

Now let's look at the dispute between Timothy Sandefur and Stephan Kinsella. In reference to the Civil War, Sandefur argues that "The federal government had the right and the duty to put down the Confederate rebellion." We can set aside, for the moment, Sandefur's claim that Lincoln was duty-bound (under the U.S. Constitution) to stop the South from leaving the Union. I think he's right, but that's not what's at issue here.

The issue, rather, is how we should morally evaluate the actions of the state when it stopped the Confederate rebellion. In judging whether an action is good or not, we need a certain standard. In referring to "the ultimate values of libertarian political philosophy," Sandefur thinks libertarianism does posit such a standard. As I read his argument, Sandefur thinks it was good to quash the rebellion and Kinsella thinks it was not.

As I see it, that standard is liberty. Other things being equal, it's better when people are free than when they are not. Slavery is bad; abolishing slavery made the world a better place.

In his response to Sandefur, Kinsella takes the position that

Under my libertarianism, any pro-slavery legislator in either sorry government--or even any voter who endorsed slavery--is a criminal rights violator. Just because a libertarian does not endorse the USA's unconstitutional, immoral, criminal, unlibertarian, illegal actions does not mean we condone its enemy's actions either, as is plain to anyone with a lick of sense and a drop of honesty.

Let's accept the claim that both the United States was and is engaged in the widespread violation of individual rights. Let's also accept the claim that the Confederate government would also have been engaged in violating those same rights. Further, let's accept the philosophical anarchist's point that neither the Union, nor the Confederacy, was legitimate; neither could impose moral obligations on people apart from the obligations they would have had anyway.

Even accepting all this, as libertarians, why should we not think that it was a good thing that Lincoln acted as he did and rid the United States of slavery? This does not mean Lincoln had legitimate authority: he could not make it the case that slavery should be morally forbidden. But I take it that as libertarians we think that slavery is morally forbidden, and that ridding America of slavery was a good thing to do.

This is especially so if you think, as Sandefur does (and I agree) that economic forces in the United States were insufficient on their own to end slavery. If you think this, then you will be led to think that if someone had not acted, slavery would not have withered away on its own. In other words, in a world without Lincoln (or Superman; or the equivalent) slavery would still exist in the United States. And, I think it follows, that world would be -- in that respect -- a much worse place than the one we presently occupy.

Like Rothbard, Kinsella's position is that any state is inherently a criminal enterprise. This seems to amount to the view that nothing the state does can ever be morally justified. Even if it would be justified for you and I to use force to free our neighbor's slaves, it would not be justified for the U.S. government to forcibly free those slaves (would it even be justified in Kinsella's world for the state to pay slave owners to free their slaves? I doubt it.)

To me, this position seems absurd. Obviously, I can and should evaluate the state's conduct the same way I would evaluate the conduct of anyone else. When the state protects individual rights, that's good. When it doesn't, that's bad. And at no time does the state gain legitimate authority, in the sense the philosophical anarchist describes. But the state did not need any kind of special authority to free the slaves: morality itself provided all the justification the state needed to act in that case.