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Law, Loyalty and Citizenship


Meir Dan-Cohen

“to thine own self be true”

William Shakespeare, Hamlet

The Political Question

It is commonly believed that countries, their governments and their laws make at least a prima facie normative claim on citizens. For the most part people conduct their lives as though they owed a measure of loyalty to their country, their government had a modicum of authority over them, and the law was at least somewhat binding. To be sure, attitudes to one’s country, its government and its law may diverge, and each raises some distinctive philosophical issues of its own. Under the heading of patriotism, philosophers explore the general, mostly affective attitude to the country; political philosophers tend to focus on the question of the government’s authority; and legal philosophy is centrally concerned with the duty to obey the law. But though separable, these issues are closely related. Ordinarily, a vital aspect of allegiance to one’s country is acknowledging its government’s authority, and law is by far the most significant medium through which that authority is exercised. The divergent issues that arise in this area have a common core: we are expected to pay some heed to our country’s interests by, in part, accepting its government’s authority, an acceptance manifested in part in a disposition to obey the law. What grip, if any, does this composite claim have on us? Call this the political question.

In one form or another, the political question has occasioned over time mountains of writings. Under these mountains, however, is buried a simple if dispiriting truth: we are no closer to a satisfactory answer than we have ever been before. Philosophers who till these fields have their employment secure. In these circumstances, adding yet another molehill to the landscape may seem foolhardy or worse. We can nonetheless engage with these issues in a different spirit. Though existing approaches provide a useful and inescapable foil, the aim is not to offer a better answer, since the aim is not to provide an answer at all. It is rather to use this question as the focal point for an imaginative reconstruction, partial and simplified, of a certain segment of the human condition. In this process, the question itself and the terms used to pose it get reformulated and transformed. The results are the rudiments of a theory, designed to add to a cumulative stock, which is itself part of the subject matter under investigation; an attempted contribution to the fund of ideas that inform and so shape that segment of the human condition, even when cast as a commentary on it. The guiding principle of the present inquiry is an old insight that goes back at least as far as Plato: that social and political arrangements are refracted in, and are a refraction of, the structure of the human self; to study the one is to study the other.

Two preliminary points. First, the political question arises with particular acuity with respect to an unjust state. “My country, right or wrong” is a well-known, for many notorious, sentiment. But we must also query allegiance to a just state. Our obligations to our own political system are supposedly different from our obligations to others, no matter how just these others may be. The fact that any given country, government or law is just does not by itself bind us to it in the way in which we are supposed to be bound to our own.

Second, the political question is a quest for justification. Such a quest does not arise in a void. Justification usually proceeds as an attempt to silence some qualms or reply to putative or actual opponents. Allegiance to the state, political authority and law’s bindingness need to be justified. Why? A common answer fixes on the state’s coerciveness, since coercion by itself is presumptively bad. But coercion is not my primary concern. In focusing on normativity, I mean to attend to an aspect of the state, its government and law, that is independent of coercion, and if anything is antithetical to it. The state’s and so the law’s normativity consist in an appeal to voluntary allegiance and compliance. The political question is an invitation to assess this appeal quite apart from the fact that the state is in a position to enforce it. What challenge other than coercion gives rise to the political question and guides the efforts to answer it?

It is instructive that there are in fact two prominent challenges, diametrically opposed: one associated with an individual, self-regarding standpoint, the other with a universal, other-regarding standpoint. Seen from the individual’s standpoint the question is, why should I assume the burdens the state seeks to impose on me and accept the setback to my own interests it often demands? From the other end of the spectrum the question arises, why do my political community’s claims get priority over similar claims of other people or humanity as a whole? Each of the two opposing perspectives is commonly tied to a normative orientation of its own: individual self-interest is subject to considerations of prudence, whereas the universal concerns are the turf of morality. The political question accordingly arises between the prudential and the moral, and is answerable to both.

That the challenges to the state’s normative claims come from two opposing directions is sometimes obscured by the fact that the same idiom, of autonomy, is used to express both challenges: being subjected to the state’s authority and deferring to its demands is allegedly inimical to one’s autonomy. But here the polarity is hidden by an ambiguity in these claims between personal and moral autonomy. Roughly, personal autonomy concerns a person’s ability to carry out her wishes and desires and so advance her interests. Moral autonomy, at least as interpreted by Kant, is a matter of acting on universally valid principles one endorses. The charge that political authority and the law threaten autonomy can accordingly amount either to the claim that they restrict people’s capacity to pursue their own goals, or that they displace the universal principles that as moral agents people otherwise endorse (Dworkin 1988; Hill 1989; Raz 1988).

Given the two polar challenges, it is not surprising that answers to the political question should often consist in efforts to account for the state’s normative claims either by showing that these claims arise out of self-regarding individual concerns and are congruent with them, or else that they are the implications of a universal morality and part of it. This is not the place to canvass the voluminous literature, other than to comment that the very volume and endurance of the two contrasting lines of thought raises some doubt that either is fully satisfactory. In any case, there is a prima facie phenomenological objection to both reductionist accounts, as unable to capture the experience of the political domain as a distinctive site of normative considerations, marked precisely by their failure to neatly align with the self-regarding/other-regarding divide. For example, some people pay their taxes resentfully, betraying a conflict between their self-regarding wish to keep the money and the state’s demands. The same people may feel personally offended and outraged when their country’s embassy is attacked or flag burnt. The state’s claims seem in this way to belong to a large and variegated category of what appear to be intermediate interests (values, attitudes) and their associated reasons and norms, which cannot be classified clearly and stably either as one’s own or as those of others. Although a satisfactory answer to the political question would have to meet both the prudential and the moral challenges to the state’s normative claims, the answer needs also account for the perceived distinctiveness of these claims, rather than collapsing them into one pole or the other.

I have mentioned that the twin challenges to the state’s normative claims are sometimes phrased in the idiom of autonomy, either moral or personal. Here too, the apparently intermediate location of the political between the individual and the universal can be observed, confounding the binary division. Autonomy is self-government, and a state’s sovereignty is the realization of a people governing itself. Who, however, is the referent of this reflexive expression? It may appear that I have already answered the question in the course of posing it by designating “the people” for that role. But the history of political philosophy is in part the record of pursuing two radically different interpretations of this answer and of coping, inconclusively, with the difficulties to which each of them leads. “The people” either labels an aggregate of individuals, or a single entity, existing over and above, as the saying goes, the group of individual members. Both answers, however, create a rift between the self-government of the state and the autonomy of its individual members. Each individual is governed by a group of other individuals in the one case, or by some independent entity in the other. In neither case does the reflexive subject of self-government coincide with the individual self. But here too familiar facts appear to belie this picture. In the name of national self-determination, people often favor a more oppressive regime of their own over a more benign foreign rule. In doing so, they experience themselves as promoting their own autonomy rather than that of some third party, be it other individuals or an impersonally perceived collective entity.

It is possible, of course, to dismiss all such attitudes that people exhibit toward their country as deluded and wrongheaded. But even if this is one’s verdict, it would make better sense to reach it on normative rather than conceptual grounds. We should be hesitant to diagnose large segments of human history as displaying a conceptual error. The reluctance stems in part from the explanatory paucity of such an account. Given how pervasive the attitudes in question are, an adequate account, even if not upholding them, should tell us something about what prompts and sustains them. Ascribing to people a conceptual error that renders their attitudes senseless or incoherent is unlikely to meet this goal. It would be more fruitful to try to maintain conceptual room for political autonomy, seen as a genuine and distinct possibility, even if we denounce on normative grounds its supposed realizations.

The Moral Question

When the political question is raised, and the state’s normative claims are brought before the court of morality, this court’s jurisdiction is for the most part taken for granted. That the political question arises between two contrasting poles—of prudence and morality—reminds us, however, of the challenge the self-interested individual poses not just to the state and its law but to morality as well. For this individual, keen to advance her interests and satisfy her desires, morality presumes to stand in the way. Why would the individual care? How are we to understand morality’s grip in possible derogation of our own interests and desires? In Kant’s well-known formulation, how is morality possible? Call this the moral question. Clearly, our answer to the political question must be linked to our answer to the moral question.

Adding the moral question to the political question, while compounding difficulties, also provides a clue. Both questions must respond to the same challenge, posed by the self-regarding individual. Given the similarity between the two questions and the common challenge they face, strategies for coping with the moral question may be employed in coping with the political question too. One response to the moral question—of which Kant’s own moral theory is a prime example—resorts to abstraction. Since morality purports to speak in a single voice to or on behalf of individuals whose interests and desires potentially conflict, it presumably requires a unitary standpoint, occupied by every human being; abstraction paves the way. By abstracting from actual, concrete individuals, their interests and desires, we efface differences and construct a single platform on which they all stand. In Kant’s case this feat is accomplished by means of the noumenal self, characterized exclusively by the possession of a rational will, and by the uplifting image of a Kingdom of Ends, a forum in which abstractly conceived noumenal selves spell out the practical implications of their shared humanity (Kant 1964/1785, ch. 2).

The most influential recent engagement with the political question, that of John Rawls, does indeed purport to follow Kant in this regard. Since Rawls considers justice to be the primary virtue of political institutions, his response to the political question takes the form of a procedure for constructing a society’s constitution, laws and institutions that embody sound principles of justice. In doing so, Rawls explicitly models his procedure on Kant’s approach to the moral question. The participants in the original position, a forum Rawls analogizes to the Kingdom of Ends, are abstracted from actual human beings by means of the veil of ignorance, and so reach principles of justice in their shared capacity as citizens, oblivious to distinguishing characteristics and conflicting ends that keep them apart (Rawls 1971).

On a closer look, however, Rawls’s use of abstraction turns out to be at once too timorous and excessive in ways that help reveal some of the broader issues involved. To appreciate the first weakness, we need to compare Rawls’s theory to Kant’s. Despite their similarity, the approaches are fundamentally different, exposing a crucial ambiguity in the notion of abstraction and its relationship to the self. In employing abstraction, Kant is making a metaphysical claim. His moral theory is grounded in a bifurcated metaphysics which distinguishes between the world of appearances—that is the world as it appears to creatures with the particular perceptual and cognitive capacities that human beings happen to possess—and the world as it exists apart from humans’ perception of it, the world of things-in-themselves. People belong to both domains. As phenomenal selves, we belong to the world of appearances, in which psychological inclinations participate in the same system of perceptual and cognitive capacities by means of which all of human reality is constructed. Qua noumenal selves, however, we belong to the domain of things-in-themselves, to which ex hypothesi we have no experiential access. We can, however, use our philosophical imagination to project on this blank screen the features of our moral experience which the phenomenal self cannot by itself accommodate. Specifically, we can view moral reasons as applying to us as noumenal selves and motivating us in this capacity (Kant 1964/1785, ch. 3).

Much of post-Kantian philosophy, however, is averse to this bifurcated metaphysics, and at any rate Rawls abjures it. Cut off from such metaphysical moorings, Rawls’s abstraction differs radically from Kant’s. Unlike the Kingdom of Ends and its noumenal inhabitants, the original position is a hypothetical meeting of imaginary representatives, whose characteristics purport to be nothing more than theoretical stipulation. The original position and its abstract inhabitants accordingly play a much more attenuated role in answering the political question than the Kingdom of Ends and the noumenal self play in answering the moral. The normative force of the principles of justice and of the laws and institutions they generate comes from outside the theoretical devices Rawls employs. He appeals from the start to people who are assumed to possess a sense of justice; the original position serves only as a heuristic device designed to instruct them about what justice, to which they are in general already independently committed, requires (Rawls 1971: 12, 16, 21, 120). But appealing in this way to a sense of justice is unsatisfactory. If we are puzzled about the source of our alleged obligation toward the state, even a just one, positing a sense of justice is too ad hoc, and has little explanatory power.

Rawls’s abstraction is also excessive for the task he undertakes. Depriving the participants in the original position of all individuating characteristics is designed to replicate Kant’s subject of morality, the noumenal self. But what would stop such an abstract self from assuming a universal perspective? Why would its interest in justice and the scope of the principles it adopts be confined to domestic institutions and apply only to citizens of a single state? This indeed is the gist of the critique that communitarians launch against Rawls. On the communitarian view, only a “situated” self, thickly constituted by communal norms and practices, can sustain the burdens of communal life and exhibit the other-regarding concerns that justice mandates (Sandel 1998).

But this communitarian critique of Rawls’s position, and the alternative it presents to liberalism’s abstract strain, raises difficulties of its own. First, by privileging the community and its norms, the communitarian position militates against a universal morality, and weighs instead in favor of moral relativism that many, including some communitarians, find unappealing. Second, when the communitarian trains her critique on Kantian abstraction, she tends to downplay the individualist challenge to which the political question must also respond. After all, the communitarian’s situated self isn’t quite the concrete, prudential self either. The integration of the individual into the community denoted by the “situated” conception of self risks displacing not only the universal standpoint of morality but also the unique standpoint of the individual and its normative significance. I consider these next.