What Would It Take for There to be a Moral Obligation to Obey the Law? A Defense of the Associative Account and its Intrinsic Connection with Deliberative Democracy

Edward Radzivilovskiy Honors Thesis NYU Philosophy Department Spring 2015

First Reader: Professor Samuel Scheffler

Second Reader: Professor Kwame Anthony Appiah

What Would It Take for There to be a Moral Obligation to Obey the Law?

A Defense of the Associative Account and its Intrinsic Connection with Deliberative Democracy

 ABSTRACT  

 In this thesis, I will explore several prominent kinds of theories of why we have moral obligations to obey the law, and show that all have problematic features. These problematic features move us to consider alternative theories, of which Ronald Dworkin’s associative relations account seems most promising. A close look at the implications of Dworkin’s theory reveals that only certain kinds of state structures are such that their citizens will have moral obligations to obey the laws of that state no matter what else might be true of it. One such state is deliberative democracy. Furthermore, I offer an explanation of why associative relationships have the particular features that they do by arguing that relationships are constituted by the obligations they impose on their members to satisfy other members’ relation-specific needs. If a need is specific to a relationship R, then individuals who relate to each other in the R way have obligations to satisfy these needs in the other individuals to which one is R-related. For example, since companionship is a need specific to friendships, friends have obligations to satisfy their friends’ needs for companionship. Financial transparency is a need specific to relationships between business owners and accountants, but not necessarily between friends. I then conclude with some thoughts about the applicability and implementation of deliberative democracies in a real setting.

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§1. Introduction

The central question of this thesis is what would it take for there to be a moral obligation

to obey the law. And if there is a moral obligation to obey the law, what engenders that

obligation—why do we have it? I am going to examine and reject three proposals about what it

would take for such an obligation to arise, namely the consent, fair play, and natural duty

accounts. I will also look at the virtues of Ronald Dworkin’s associative account, which I take to

be the most promising, and where it might be defective. I then give my own positive account of

why we have a moral obligation to obey the law, one that builds off of Dworkin’s. Next, I argue

that my modification of Dworkin’s theory of political justification will entail that we can have

moral obligations to obey laws only in a deliberative democracy. Lastly, I will look at the

foundations of community and deliberative relationships and show why these are very valuable

relationships to have.

Before I venture into my argument, a note on my methodology would be helpful. We

need to be open to the possibility that, when all is said and done, it turns out that we do not have

a moral obligation to obey the law. In light of this, I am not assuming that the answer to whether

we have a moral obligation is yes and then am just looking for possible explanations. The

question I really am interested in is what would it take for us to have a moral obligation to obey

the law. This is a foundational question: it is asking what conditions would need to be satisfied

in order for us to have such a moral obligation. Answering this question, though, leaves

unresolved the question whether these conditions are in fact satisfied, and therefore leaves

unresolved the question whether we do in fact have a moral obligation to obey the law.

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Throughout the thesis, I will not distinguish between moral obligation to obey the law

and the moral legitimacy of these laws. Moral obligation and moral legitimacy are distinct

notions, and so there seems to be at least conceptual space available to distinguish between them.

Consider, for example, that a state of emergency is declared and certain groups of people are

placed in quarantine. Although police enforcement of the quarantine may be in accord with laws

that were arrived at in a just manner, you might think that particular people would not have a

moral obligation to obey the quarantine. Perhaps your child is hungry at home and you have to

violate the quarantine in order to feed your child. This, however, is controversial, since you

might equally think that citizens have a moral obligation to comply so that public officials can

more easily resolve the problem that gave rise to the state of emergency, and that the seriousness

of the problem trumps more personal obligations and commitments that one has. Furthermore,

most philosophers of law take these questions to be closely related such that if a law is in fact

arrived at in a legitimate manner, we have a moral obligation to obey it1. The typical explanation

for the close link between the two is that a law passed and enforced in a just manner gives people

under that system good reason to be morally obligated to comply. The quarantine example is a

good illustration of the idea that the legitimacy of laws gives good reasons that morally obligate

compliance with the law.

In the literature of legal and political philosophy, one finds four predominant theories of

what it would take to generate a moral obligation to obey the law. There are consent theories,

which hold that consent of some kind to the legal system is required. There are natural duty

accounts, which argue that we have moral obligations to support just institutions in virtue of our                                                                                                                          1 “An additional question is whether legitimate political authority is understood to entail political obligations or not. Most people probably think it does. But some think that the moral obligation to obey political authority can be separated from an account of legitimate authority, or at least that such obligations arise only if further conditions hold.” Peter, Fabienne, "Political Legitimacy", The Stanford Encyclopedia of Philosophy (Winter 2014 Edition)  

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nature as moral agents. On the natural duty account, I do not to consent or to be in any salient

relationship in order to have a moral duty to obey the law; I have the duty because I am an agent

with moral or rational capacities. There are fair play accounts, which take our moral obligation

to be entailed by the fact that we receive significant benefits from living under a functional legal

system. Finally, we have the associative relations account of Dworkin, which holds that our

moral obligations to obey the law are grounded in the nature of relationships between citizens of

the same legal institution. In the following section, I will consider and offer some criticism of

the consent, fair play, and natural duty accounts.

§ 2. Considering Consent, Natural Duty, and Fair Play Accounts

2.1 Consent accounts

Consent accounts hold that the moral obligation to obey the law derives from the consent

of the people. The consent theorist would argue that people give their consent either explicitly or

tacitly. When we talk about explicit consent, we mean that people consciously and freely give

their permission to be governed. But is this account a plausible way to explain how obligations to

obey the law generate in any type of society? It seems that you are born into society and there are

demands and expectations placed on you to obey the law, but there is no real sense in which you

actually give consent explicitly to the practice and choose to have those demands placed on you.

We do not consent to the system of laws that governs our activities simply in virtue of being born

into them. Furthermore, some people are unable to explicitly consent—they never developed the

ability to reason.

What would it take for the explicit consent account to work? Perhaps if we can somehow

implement this account then we would have the obligation. A possible way to implement the

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explicit consent would be to ask a person when she reaches the age of eighteen whether she

consents to the laws of society. But if her answer is ‘no’, then what happens? Does she move to

separate society or does she live alongside everyone else without having to follow the laws?

Another possible way to implement a government in which all citizens explicitly consented

would be for these citizens to self-select out of a larger society. An illustration of what this

involves is portrayed in Ayn Rand’s Atlas Shrugged, in which the ‘great’ men and women of

society move to Galt’s Gulch in order to create a society with laws that are consistent with their

laissez-faire worldview. Now, it is true that such a voluntary society would not need to have

laws amenable to laissez-faire capitalism; one might imagine utopian socialist societies

constituted by members who consented to the laws in their choosing to move there. There is,

though, an intergenerational worry with this implementation of societies in which all members

explicitly consent to the laws. Although the first-generation immigrants to this society could

plausibly be said to have explicitly consented to the laws of this society, their descendants may

not do so. We then revert to the problems in the situation described above, in which children are

asked to explicitly consent once they reach a certain age. There is an additional worry that self-

selection into a legal system governing only those who explicitly consent to it presupposes that

these citizens are selecting out of something—namely, other societies whose citizens are not

explicitly consenting to the legal system of those societies. It shows that, if the explicit consent

view were correct, moral obligations to obey the state would have only a very narrow

application: for first-generation immigrants to societies like that of Galt’s Gulch. These questions

show the consent account leads to an impractical situation when implemented on a large scale.

One may still insist that explicit consent is what it takes to generate an obligation even if this

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situation is never realized, but my intention is just to show some of the difficulties that this view

runs into.

I think that the explicit consent account is sufficient for generating obligation of a certain

kind: contractual obligations. I doubt, though, that contractual obligations are necessarily moral

obligations. When we sign a typical service contract with Verizon, we do so explicitly: we sign

a contract in front of a Verizon sales representative. The typical Verizon service contract

requires us not to change providers for a two-year period. It is true that such a contract obligates

us to keep Verizon’s service for two years, and the early termination fees attest to this. It does

not seem at all correct, however, to call this contractual obligation a moral obligation. The

explicit consent account does not give us obligations that rise to the level of genuinely moral

obligations. If we want an account of moral obligations to the state, we need something more.

Even if, somehow, explicit consent suffices for generating a genuinely moral obligation,

so does my modification of Dworkin’s associative account that I provide later. Further, I will

argue, my account is more plausible to implement. Though implementation is not strictly

speaking a necessary condition for an account, it is certainly an important virtue.

The tacit consent account, on the other hand, as forwarded by John Locke in his Second

Treatise of Government, is implied by someone’s participation in society. Locke says:

The difficulty is, what ought to be looked upon as a tacit consent, and how far it binds, i.e. how far any one shall be looked on to have consented, and thereby submitted to any government, where he has made no expressions of it at all. And to this I say, that every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as anyone under it; whether this his possession be of land, to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely on the highway; and in effect, it reaches as far as the very being of any one within the territories of that government (347-348).

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The idea is that the only way not to tacitly consent is to leave. But there is something wrong with

such an explanation of our obligation.

The tacit consent theory seems to be widely held. One might be concerned that the

popularity of this theory seems to derive in part from the phenomena of many people in positions

of power who often in a self-serving way claim that it is a basis of our obligation. This raises an

epistemological worry, although one that, if anything, should make us more skeptical of our

commitment to the tacit consent view. In point of fact, though, acceptance or rejection of the

tacit consent view does not coincide with access or lack of access to political power, since many

who are not in positions of power, including Locke himself, also hold the tacit consent view.

Furthermore, it is important to distinguish between the causes of one’s belief in a theory and the

reasons to rationally accept or reject a theory. Since we are particularly concerned not about the

causes of any particular person’s theoretical convictions but about the grounds for a theory’s

rational acceptance or rejection, this criticism of the tacit consent theory seems beside the point.

One might suggest that tacit consent does not seem like consent at all. The very idea of

consent seems to be that a person consciously accepts a particular decision, and thus the notion

of ‘tacit’ or ‘implicit’ consent contains an inherent contradiction. But this would not be giving

the account its fair due. There are in fact contexts in which it is plausible to say that the fact you

act in a certain way is tantamount to tacit consent. For example, we can imagine a situation in

which a student is working with a professor on her undergraduate honors thesis. The professor

might not have agreed ‘explicitly’ to be the student’s advisor in the sense of uttering the words,

but his actions demonstrate agreement — and ultimately, consent is about agreement. So then

why cannot we apply tacit consent to explain our obedience to the law?

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There are, I think, three salient differences between the professor’s alleged tacit consent

to advising the student, and the citizen’s alleged tacit consent to obeying the state. The first

important difference is that, in the advisee case, the obligation to take on the advisee is ultimately

grounded in an instance of explicit consent that the professor gave at the time of his hiring.

These are cases in which explicit consent might work to give rise to an obligation. Since I

previously argued that explicit consent to the laws of one’s state does not give rise to moral

obligations to obey the law, any tacit consent that derives its obligatory force from some other

act of explicit consent will fail to produce moral obligations to obey the law.

The second important difference concerns the relative awareness of what the professor

and the citizen are tacitly consenting to. Since the professor in the above example is responding

to emails about advising and submitting advising-relevant paperwork in a timely fashion, the

professor is consciously aware of the relationship that he is developing or has developed with the

student. Citizens, however, do not really have to think about whether they have consented to the

laws. Having been brought up in a legal society and trained by public officials, obedience to the

laws is all they know. One might think that if the government explicitly dictates that the

people’s silence will be interpreted as tacit consent that we can say that people have tacitly

consented—but this is a strange view. Locke, for instance, would not have held it. Suppose, for

instance, that the dictator of North Korea declares that all the people love him, presumably

because he received 99% of the votes in the recent election. It would be a mistake to infer from

this that the people in fact love the dictator of North Korea. Similarly, if a government declares

that all people tacitly consent to their laws in virtue of engaging in some sort of behavior such as

compliance with the law, it would be a mistake to infer from this that the people in fact tacitly

consent to the law.

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The reason is because of a third important difference between the citizen case and the

professor case: the presence and absence of political coercion. Tenured professors will not be

physically punished if they refuse an advising request from an undergraduate student. Citizens

might be physically punished if they refuse the state’s request to obey the law. In the political

case, there is an entire system of police, law and the courts that coerce the members of the

society into obeying the law. This is related to David Hume’s famous criticism of tacit consent

that nobody is really has a choice in the matter anyway—often people can leave only with great

difficulty so it is not meaningful consent:

Should it be said, that, by living under the dominion of a prince, which one might leave, every individual has given his tacit consent to his authority, and promised him obedience; it may be answered, that such an implied consent can only have a place, where a man imagines that the matter depends on his choice. Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives, from day to day, by the small wages which he acquires? We may as well assert, that a man, by remaining in a vessel, freely consents to the dominion of the master, though he was carried on board while asleep, and must leap into the ocean, and perish the moment he leaves her. (475) “Of the Original Contract”

Hume here is saying, much more eloquently than I am, that coercion is a morally relevant

consideration when it comes to evaluating whether someone is giving or withholding tacit

consent. Actions that would normally constitute tacit consent to an agreement, such as

cooperating with a request, may not do so in the political case because that request is backed by

considerable threat of force. The adviser is under no such pressure to accede to the student’s

request for advising. Perhaps one might think that there are punishments for misbehavior and

dereliction of duty for college professors, just as there are punishments for breaking the law. The

salient difference, in this case, would be that the professor assumes his or her professional duties

consciously and willingly, even if the specific applications of those duties are tacit, whereas

natural born citizens are never given this choice. Again, though this may not amount to a

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complete rejection of the consent account, these examples illustrate that there are serious

difficulties this views runs into.

2.2 Fair Play Accounts

The next account I will consider is known as fair play. This view holds that if you are

part of a mutually beneficial enterprise, i.e., if you receive the benefits of that enterprise, then

you have an obligation to obey the laws of that enterprise. So you have a duty to bear a fair share

of the burdens of the enterprise. The assumption in the fair play view is not that everyone is

following the rules, but it is that everyone is receiving the benefits, which, according to this

view, obligates them to follow the rules. The fair play account has prominent defenders such as

George Klosko.

Robert Nozick in his Anarchy, State, and Utopia argues that the fair play model would

not work because people could simply confer benefits to us and by that make us obligated to

them. In one of the various examples to illustrate this point, Nozick says, “On the face of it,

enforcing the principle of fairness is objectionable. You may not decide to give me something,

for example a book, and then grab something from me to pay for it, even if I have nothing better

to spend money on” (95).

One might object that Nozick’s thought experiment does not function as a criticism of

fair play accounts of our obligation to obey state laws. Citizens derive mutual benefits from state

because they mutually submit to obeying the laws. Nozick’s thought experiment therefore does

not work as a criticism of this kind of system of mutual benefit, since the situation that Nozick is

describing is not one in which all participants are following the same set of rules.

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A fair play account of our obligation to obey the laws of the state cannot, however, limit

its argument only to social situations in which participants are following rules. I noted above in

my remarks on the methodology of this paper that, in giving a good theory, it is better ceterus

paribus not to make assumptions. When we are giving a theory of why we have moral

obligations to obey the state, what we are trying to give, in part, is an answer to the question why

someone who simply stops obeying the laws of the state ought not to do that. If we limit the

scope of fair play arguments only to situations in which the participants are already obeying the

laws of the state, we will not be able to use these fair play accounts to answer this important

question.

To illustrate, imagine that Socrates is talking to Callicles, who is asking Socrates why he,

Callicles, ought to obey the laws of morality. Socrates then argues that there are additional

reasons to be moral, but these reasons only apply to people who are already obeying the laws of

morality. Callicles can reasonably protest that Socrates has not given someone like him, who is

not obeying the laws of morality, any further reason to do so. Similarly, a fair play argument

that only succeeded in establishing that people who obey a system of shared rules have moral

reasons to do so would not succeed in answering the question why someone who was not

obeying such a system ought to do so. In other words, if you limit your argument only to people

who are playing a certain game, then the argument will not apply to people who are not playing

that game.

To clarify, here is the line of argumentation thus far. Nozick has a compelling objection

against the view that mutual benefit gives rise to moral obligations to obey rules. I take this

objection to be sound. One might object that Nozick’s objection does not apply to the case of

mutual benefit of members engaged in state cooperation, since state cooperation involves agents

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that are acting in accord with the same set of rules, and Nozick’s objection is based on a scenario

in which the agents are not playing by the same rules. However, if the fair play theorist wants to

avoid Nozick’s objection by limiting the applicability of fair play accounts only to scenarios in

which the agents are playing by the same set of rules, the fair play view will not have anything to

say to people who do not take themselves to have reasons independent of the fair play account to

play by the same set of rules. However, the fair play view is supposed to be a theory of why we

have moral obligations to play by the set of rules in the first place. So the fair play theory would

then fail to provide what it set out to provide: an explanation as to why people have moral

obligations to play by the set of rules in the first place.

Nevertheless, the fair play account might seem harder to reject than the consent account

because we do have a strong intuition that we are constantly in situations where we incur

obligations that we did not accept. The primary example of this is that we are born into a family

that raises and takes care of us. Most of us never ask our family to actually do that, but many

people would hold that we are still obligated to them for the rest of our lives—we owe them

something, which at the least might be respect, even when there is no longer any economic

benefit in doing so.

One might think that this example of obligations to one’s family is irrelevant because it

lacks shared principles or rules. I agree that families may lack explicitly agreed-upon principles.

Despite this, however, we do have strong intuitions about the kinds of principles and norms that

govern family relationships. People are striking in their willingness to obey these principles: we

go to family get-togethers and let family members stay over at our houses even when we do not

actually like them very much. We will even go to great lengths and suffer serious financial

burdens to help family members who are suffering from illness. This goes to show that family

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relations are governed by principles and rules that we are in fact often quite committed to

following, even if doing so is unpleasant. However, the fact that we go along with these rules

even when we do not benefit evidences the claim that our moral reasons to conform to these rules

does not stem, contra the fair play account, from the benefit that we incur from doing so. The

reason we obey a family is because of its relationship structure, not because of fair play.

Therefore the fair play misidentifies the nature of the reasons that you have to obey in such non-

voluntary relationships.

2.3 Natural Duty Accounts

Another account to consider is the natural duty account. The natural duty account is a

duty account because it is an account of our duties to obey the state; it is a natural account

because the duties derive from reasons given by our common humanity, independent of what

legal framework we happen to find ourselves in. One influential form of natural duty account

has been given by John Rawls, who argues that people have a natural duty to support just

institutions. For Rawls, we come to know these duties through reasoning in the Original

Position: a hypothetical situation consisting of rational agents stripped of any knowledge of

particular, individuating features of themselves (race, gender, occupation, class) and their

particular society (the specific legal structure, the geography and level of technology, and so

on)2.

                                                                                                                         2  Rawls makes this point famously in  A Theory of Justice, saying, “Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does any one know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like. I shall even assume that the parties do not know their conceptions of the good or their special psychological propensities. The principles of justice are chosen behind a veil of ignorance” (11).  

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Rawls does have a theory of hypothetical consent; he thinks that, insofar as we were

ideally rational, we would in fact consent to live by laws consistent with the principles arrived at

after deliberation and reflection from behind the veil of ignorance. This does not, however,

mean that Rawls’ natural duty account is a species of consent account. Rawls does not take

hypothetical consent to be the ultimate source of our moral obligation to obey the law, since the

reason we would hypothetically consent to obey the laws of just institutions is because, if we

were ideally rational, we would do what we have a natural duty to do: namely, support just

institutions.

By natural duty, Rawls means that we have them notwithstanding whether we have opted

into a practice voluntarily.3 But does this mean we have an obligation to obey all just

institutions? If we have a duty to support just institutions, then why does it matter where those

just institutions are? Perhaps somewhere in Europe there is a just institution—do I, an American

citizen, have a duty to support and obey its policies?

One aspect of supporting just institutions involves obeying the laws of these institutions.

If the political institution to which I belong is just, then supporting this political institution will

mean paying the taxes that the law requires. Surely, though, the moral requirement to support

just institutions cannot mean that we are obligated to obey the laws of all of these institutions.

Laws between political jurisdictions frequently conflict, so if there were multiple just legal

institutions, we would have to obey conflicting laws, which is contradictory, if not in the logical

sense, at least in the practical one. By directing us to support one just institution by following its

laws, the natural duty account would move us to remove support from some second just

institution that has adopted laws inconsistent with the laws of the first. The Rawlsian formulation

                                                                                                                         3  Rawls says, "Now in contrast with obligations, it is characteristic of natural duties that they apply to us without regard to our voluntary acts” (Rawls, p. 98)  

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of the natural duty account therefore generates practical inconsistencies. If we are morally

obligated to obey the laws of some political institutions but not all of them, which institution’s

laws, then, do we have an obligation to support?

Defenders of the natural duty account such as Rawls have an obvious reply. They could

reply that we have a duty to obey those just institutions that apply to us. So for example the

government of Luxembourg is just and I do not have a duty to support them because I do not

really have anything to do with Luxembourg: I am a US citizen living in New York. But if I go

to Luxembourg as a tourist, then Luxembourg’s legal framework does apply, and so I then gain a

moral obligation to obey the law while I am there. Rawls’ notion of applicability here seems tied

significantly to one’s location: if I find myself in the United States, I have a moral obligation to

obey the laws of the United States; and if I find myself in Luxembourg, I have a moral obligation

to obey the laws of Luxembourg.

The location conception of applicability generates a problem when we consider laws that

apply to US citizens irrespective of their location. For example, it is illegal for US citizens to

spend US dollars in embargoed countries such as Cuba, and it is illegal to bribe foreign officials

while one is traveling in foreign countries and to participate in their armed forces. If the US is a

just institution, then we have an obligation to obey its laws, including laws that restrict our

activities while traveling abroad. But if we are to obey these laws even when we are not within

the political jurisdiction of the United States, we cannot say that our natural duty to obey just

institutions is limited only to obeying those just institutions that we find ourselves located within.

Location within the jurisdiction of a just institution is therefore not necessary for generating

one’s moral obligations to obey that institution’s laws. Nor is it sufficient. Again, this is simply

a conflict of jurisdictional obligations rather than a logical inconsistency.

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There is one more objection to Rawls’ version of the natural duty account that is worth

bringing up. Consider a case in which, while traveling in Luxembourg, Luxembourg finds itself

under threat. If we take Luxembourg to be a really just society, and suddenly it is under threat

while I am touring there, then it might seem like we have a natural duty to support its institutions

in the very profound way of helping it to defend itself from attack. Suppose that Rawls and

Dworkin both agree that we have such an obligation. Even though they may both agree as to the

content of our duties to the state, there is a disagreement as to the reason that we have these

obligations.

Dworkin’s objection to Rawls’ natural duty account is that it fails to “tie political

obligation sufficiently tightly to the particular community to which those obligations belong”

(Law’s Empire, 193). Dworkin is not criticizing Rawls’ view that we have obligations to support

just institutions. He is simply concerned that Rawls’ natural duty account does not explain the

special duty that we have to support just institutions to which we belong. Although we may have

natural duties to support just institutions, the natural duty account fails to identify the distinctive

character of our obligations to support institutions to which we belong. This is admittedly only a

sketch of an objection, but the sketch will be completed in my treatment of Dworkin that I

provide in the next section.

More recently, Christopher Wellman has given an influential form of the natural duty

account that invokes the idea of fairness. This account suggests that an individual has an

obligation to do his fair share in discharging a collective natural duty to rescue others from a

state of lawlessness on the condition that this rescue does not impose unreasonable burdens.

Wellman says, “Given that states rescue us all from the perilous circumstances that would

inevitably prevail in their absence, and because states rely upon the compliance of their

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constituents to perform their political functions, it seems to follow that each of us has a samaritan

duty to obey the law” (31)4. In other words, this generates a moral obligation to obey the law

because obeying the law contributes to upholding the rule of law, thereby rescuing citizens from

a greater state of lawlessness that would obtain if one did not obey the law. Wellman argues that

we have a moral obligation to prevent the state of lawlessness because a state of lawlessness

imposes considerable social costs. The principle of fair play itself seems uncontroversial. For

example, if a professor assigns Jim and Mary the task of presenting a class, it is only fair that

each does a fair share of the work to discharge this obligation. But one might challenge invoking

the fairness principle in the specific context that Wellman does.

Indeed, the philosophical anarchist A.J. Simmons argues that Wellman computes the total

costs of failing to obey the law in the wrong way. Simmons argues that the legal order will not be

undermined by my decision to disobey. Simmons says, “But individual citizens, doing their parts

in the collective task of maintaining the rule of law, never confront a choice between bearing the

costs of obedience or bearing the costs of a lawless state of nature. Individual disobedience

(failure to rescue) virtually never has as a likely cost the collapse of the state” (182). In this

respect, the choice to obey or disobey the law is like the choice to vote: although it is true that

the voting system would fall apart if everyone decided to vote, any single person’s decision not

to vote will not have the same effect. Similarly, although the rule of law would fall apart if no

one complied with the law, the choice of any particular person not to comply would not have this

effect. My choice to disobey the law is not morally significant because my decision to disobey

the law will not undermine the legal order; therefore, my choice will not produce the great social

costs that Wellman associates with the state of lawlessness and chaos. One might be concerned

                                                                                                                         4  This is from Wellman and Simmons’ book Is There a Duty to Obey the Law: For and Against (2005). The quote from Simmons in the following paragraph is from the same collection.

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that Simmons’ objection here fits less into a defense of political anarchism than into a defense of

political egoism; however, the role of this argument in Simmons’ larger political philosophical

outlook does not detract from this argument’s status as an objection to Wellman’s natural duty

account.

There are, of course, important costs associated with disobeying particular laws, even if

these costs are not so great as the cost of bringing about the state of nature. Disobeying the law

puts you in greater danger of being punished by the police and the courts, and so you have

prudential reasons to follow such laws. In additional to the prudential reasons, though, I

interpret Simmons as suggesting that there is also the issue of our right to freedom. Laws are

coercive, and our state of coercion negatively impacts upon our freedom to live as we see fit.

There are significant costs to our moral integrity in complying with laws that one has no moral

reason to obey because you are coerced into doing something that you are not morally obligated

to do. This is also a personal cost, but strikes as in some way weightier than the prudential

reasons that the law’s coercive power produces. Wellman’s calculation of the social costs of

disobeying the law therefore fails to consider the moral costs of obeying the law when it conflicts

with the dictates of one’s conscience or desire to live freely.

Wellman’s argument relied on the premise that we have moral obligations to avoid doing

things that will produce great social costs. This does seem like a plausible claim. Simmons,

however, makes a convincing case that any particular individual’s failure to comply with the law

will not produce the great social costs associated with living in a state of lawlessness. In

response, Wellman could modify his original premise about our moral obligations. In addition to

having moral obligations to avoid doing things that will produce great social costs, Wellman

could also argue that we have moral obligations to do things that produce social benefit. Even if

  19

any particular individual’s failure to comply with the law will not produce great social costs, it

seems that an individual’s compliance with the law produces some social benefits: providing a

role model for fellow citizens, making it so that fewer resources needed to be spent on

enforcement, and so on. However, the claim that we have moral obligations to do things that

produce marginal social benefits is much less plausible than the claim that we have moral

obligations to avoid imposing great social costs. A philosophy graduate student could produce

many more social benefits by changing her career to work for Doctors without Borders, but few

people think that such a graduate student has a moral obligation to subordinate her goals and

desires for her life to the cause of producing even great social benefit. Even many utilitarians

have tended to think that utilitarian reasoning is more properly limited to decisions about what

public policy to implement and not to the domain of one’s personal life. In other words, there

seems to be a conceptual gap between the notion of moral obligation and the notion of social

benefit. Wellman just seems to bridge this gap by brute force by assuming that everyone has an

obligation contribute to the well-functioning of society. If this assumption were true, then

Wellman would indeed have bridged the gap. However, by failing to provide any additional

argumentation as to why we should think we are obligated to contribute to the well-functioning

of society, he does not succeed in actually bridging the conceptual gap. Hence, Wellman’s

assumption is a convenient one for him to make in terms of his larger argument, but ultimately

weakens the argument unless supplemented with additional argumentation.

In addition to Simmons’ compelling criticisms of Wellman’s natural duty account, one

may offer a different reason to reject Wellman’s natural duty account. Wellman’s motivation for

establishing such an obligation is based on the premise that a state of lawlessness is a state of

  20

chaos. And based on that assumption, Wellman thinks we have a collective duty to prevent such

a state from obtaining and rescue our fellow citizens by obeying the law. But one can reject the

premise that a state of lawlessness must equal to a state of chaos. We might suppose that

Wellman does not really need to assume the ‘must’ and that ‘probably’ would be enough for his

purposes—but one might nevertheless disagree even with this qualified formulation. People are

social creatures who cooperate and take into account moral considerations when making

decisions—so one might think that it would still be enough people in a state of nature who would

work together and operate on values such as trust. Thomas Hobbes, in his Leviathan, argues that

individuals cannot reach such a level of coordination without a system of law. The life of

individuals would be “solitary, poore, nasty, brutish, and short” (89)5. So on this view people are

not good enough to be cooperative. Hobbes defends this premise by appeal to experience—he

challenges us to look at society and make sense of the fact that people lock their doors and

chests: “what opinion he has of his fellow subjects, when he rides armed; of his fellow citizens,

when he locks his doors; and of his children, and servants, when he locks his chests. Does he not

there as much accuse mankind by his actions, as I do by my words?” (89). In short, for Hobbes,

people by nature do not trust each other.    

In contrast to the Hobbesian cynicism about what humans would be like in a state of

nature, Jean Jacques Rousseau argued that coordination is much more conceivable in a state of

nature in his Discourse on the Origin of Inequality. The right of self-defense for Rousseau is

much more constrained—in other words, he argues that it is possible for there to be a system of

rules that resemble laws without any common power. Even though these rules are not laws in the

                                                                                                                         5  From the Cambridge edition, edited by Richard Tuck (2003).

  21

sense that they are not dictates of a sovereign power such as a monarch or a legislative body,

they can be just as binding as laws.

In this thesis I will not be arguing for deliberative democracy of the Rousseauian kind. I

agree with Wellman’s crucial point: that we need a legal system. The only thing that is going to

prevent arbitrariness and injustice prevailing is a legal system backed with political power.

Without a legal system, there is no criminal justice system. And without such a system, there are

no limits on what kind of punishments are allowable. All of this is not clear under Rousseau’s

charming view of the state of nature. Consider the Occupy movement, in which one might argue

cultural values were cultivated to a sufficient degree such that you did not need a legal system,

and that people naturally cooperated via a system of self-enforced rules. Indeed, some political

activists such as Noam Chomsky have suggested that Occupy is a prototype of a future society in

which the legal system is obsolete. In Zuccotti Park, for example, this rhetoric might be

politically useful as a means to open up people’s imaginations, and it might even provide some

consoling evidence that human nature tends to be good, or at least not as antisocial as we tend to

think. However, any success that Occupy had in instantiating beneficial, anarchic social norms

and relations only took place in the context of a much larger society that was itself governed by

the rule of law. It was this larger society that provided the protesters with food, clothing, and

materials to make their drum circles. Even the kibbutz in Israel is not completely politically

autonomous, since it functions within the wider legal framework of Israel. Similarly, Zuccotti

Park gives only very thin evidence in favor of Rousseau’s thesis of the goodness of human

nature. The number of people that participated in the social life of Zuccotti Park is insignificant,

and in any case the positive evidence they provide in favor of the goodness of human nature is

  22

far outweighed by the kind of evidence to the contrary presented by the brutality of the police

that evicted and arrested the protesters on November 15th, 2011.

A Hobbesian might further insist that the insecurity of the state of nature breeds violence

even if we assume that persons are not innately violent, amoral, and do have a desire to cooperate

with one another. Even if most people are innately good, it just takes one bad apple to mess

everything up. And without a government that can provide assurance for security of the people,

there will be still be violence. So I take Wellman’s point that a rule of law would still be better

than no rule of law.

Wellman, however, needs more than this claim. As mentioned earlier, he also needs to

claim that refusing to participate in the legal system will in fact lead to a state of affairs in which

there is no longer rule of law. Even if we reject Rousseau’s alternative conception of the state of

nature, Simmons has persuasively argued that there will not actually be an upheaval if you

disobey the law. The only thing, then, that Wellman can fall back on is the fact that complying

with the law produces marginal social benefits. But then there would still be the conceptual gap:

Wellman would need additional arguments to show that we do in fact have a moral obligation

not only to avoid actions that produce great social harms, but also to avoid actions that produce

marginal social harms. This second, stronger claim is harder to justify, for the reasons I have

given.

But my main problem with Wellman’s account and natural duty accounts that invoke the

principle of fairness in general is that they are too simple to explain our obligation to obey the

law. Do we have an obligation to obey a country with millions or even billions of people? There

does not seem to be a limit. Such accounts do not sufficiently consider concerns posed by either

the type of government that sets and enforces the laws in one’s society, or the scale of that

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government. With respect to the type of government, many people think that we are morally

permitted—even sometimes morally required—to overthrow the government enforcing the

present rule of law, in order to bring in another government and another rule of law that’s better

than the current one. It seems appropriate, all things equal, to overthrow an absolutist regime in

order to install a democracy, even if doing so would produce a small transitionary period of

lawlessness. Simmons is correct to argue that the need to avoid chaos does not by itself suffice

to generate moral obligations to obey the law. But, in my view, the system is justified not just by

the need to get out of chaos. Perhaps the system is oppressive—even if that might be a slight

improvement over chaos—and therefore illegitimate. Furthermore, if we take the criterion of

avoiding chaos as the only criterion, we can just avoid chaos by bringing about the end of

society. In fact, it is conceivable we can commit genocide in a very orderly way. It is not clear

that genocide will count as chaotic. Certainly it counts as evil, but not chaos. Yet it would be

absurd to actually do this.

However, the avoidance of chaos might play a role in generating these moral obligations

when paired with other features of the legal system. One might think, along with Rawls, that

moral obligations to obey the law might require that these laws have certain characteristics, such

as their having equal application to citizens or their being comprehensible to average citizens.

One might also think that moral obligations to obey the law require that the laws be created in a

certain way. There are many aspects of the political system that one might think are relevant to

the question whether our particular political structure generates moral obligations to obey its

laws. Even if Wellman is right in arguing that avoidance of chaos is a salient component in a

theory of our moral obligation to obey the state, it is likely not the only one. Since Wellman’s

account assumes that avoidance of chaos is in fact the only salient component, his theory leaves

  24

out all the other components, such as the above-mentioned ones, that seem to be salient to the

question whether we have moral obligations to the state.

Thus the consent, fair play, and natural duty accounts are problematic for the reasons I

have provided. Explicit consent accounts fail to provide an account of genuinely moral

obligations to obey the law and would only have a very limited applicability. Tacit consent

accounts would not amount to meaningful consent in the context of a society. Fair play accounts

in general do not succeed in deriving a moral obligation to obey the rules governing a particular

interaction simply from the fact that the agents engaged in the enterprise are mutually benefitting

from the interaction. Natural duty accounts seem to produce inconsistent practical moral

obligations and also fail to do justice to the intuition that our moral obligations to obey the laws

of particular institutions has something to do with the fact of our belonging to these institutions.

Wellman’s particular defense of the natural duty account relies on a controversial view of the

social costs of failing to obey the law.

In the next section, I will consider Dworkin’s associative account, which I argue is better

equipped to answer the question of moral obligations to obey the law than consent, fair play, and

natural duty accounts. In section 4, I will then argue that moral obligations to obey the law

would only work in a deliberative community.

§3

Dworkin’s Associative Account: A Careful Reconstruction

Ronald Dworkin, in his classic Law’s Empire, argues that we have a special moral

obligation to obey the law. Dworkin contends that this obligation is grounded in associative

relations among people and that associative relations can obtain between citizens without them

  25

actually having dispositions and attitudes of care and concern for one another. I will first give

the argument and then characterize Dworkin’s conception of associative relations. Here is an

exposition of the argument:

(1) Associative relationships generate obligations that the individuals in the

relationship bear toward each other.

(2) The relationships that citizens of a political jurisdiction bear towards other

citizens of that jurisdiction are associative relationships.

(3) Therefore, citizens bear obligations toward each other.

In order to understand the first premise and why Dworkin accepts it, we need to

understand Dworkin’s notion of associative relationship. The best way to approach this is by

thinking deeply about the relationship of friendship, which for Dworkin seems to be a

paradigmatic example of an associative relationship. Friendship between two or more people,

for Dworkin, arises because these people share a history of a certain kind. Social conventions

dictate that people with this kind of shared history are friends, and the existence of the friendship

generates obligations. Dworkin writes, “We have friends to whom we owe obligations in virtue

of a shared history, but it would be perverse to describe this as a history of assuming obligations.

On the contrary, it is a history of events and acts that attract obligations, and we are rarely even

aware that we are entering upon any special status as the story unfolds.” (197)

The relationship of friendship, for instance, would not really be a relationship of

friendship unless the friends were bound to each other by obligations of mutual care and concern.

So the nature of the relationship is in part determined by specific obligations that constitute it.

This explains why friends are obligated to care and show concern for each other: if they did not,

  26

then their relationship, whatever else we might say in favor of it, would not be a genuine

friendship. If you are in these relationships, then you therefore have a reason to comply with the

obligations that they constitute. This is implicit in Dworkin’s account.

Associative relationships, for Dworkin, are relationships that satisfy a demanding set of

conditions under which he thinks a group will generate genuine associative obligations—

members must show reciprocity, attitudes of responsibility, regard their obligations as

conceptually egalitarian, and exhibit care and concern for each member. If these conditions are

not met, the community is what Dworkin calls a bare community, which just means that people

are living together and sharing interests but not interacting in the right way. It will not be a true

community because the relationship in question is not intrinsically valuable, and therefore there

are not associative obligations. Dworkin writes, “But not every group established by social

practice counts as associative: a bare community must meet the four conditions of a true

community before the responsi­bilities it declares become genuine” (204). In other words, it is

conceptually impossible for the relationship to be genuine if it does not meet these conditions.

For example, it is conceptually impossible to be in a relationship of friendship without

obligations of help, concern, and loyalty. Of course, what constitutes commitments of

responsibility and concern might vary from one relationship to another. We might need to have a

stronger commitment to loyalty with our friends than we need to have with our colleagues in the

workplace. In a slave-master relationship, one might suppose that the slave has an obligation to

obey the master and the master has the obligation to rule the slave. But this is not a genuine set

of obligations because the relationship is clearly not in the interests of all but mostly in the

interest of the master—so the relationship is not egalitarian. In order for a relationship in

question to issue a genuine set of obligations, it must have the ‘right’ quality to it.

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Dworkin never explicitly argues that the value of these relationships gives them a moral

quality, but he seems to suggest it. The thought seems to be that in the context that you speak of

the value of relationships, this is also the context in which you speak of morality. We have many

moral obligations to people with whom we are in associative community. It is our embeddedness

in these relationships that give rise to the obligations’ moral quality.

We value our associative relationships for their own sake rather than their instrumental

value. This is not to say that we cannot value relationships like friendship instrumentally, but that

we cannot value them solely instrumentally. If you are valuing a relationship you have with

someone, such as friendship, solely instrumentally because of particular external benefits of such

a relationship, then you are not really in a relationship of friendship. We do of course have many

relationships that we value for their instrumental benefits. My relationship with my grocer is a

mutually beneficial one, as the relationship procures groceries for me, and money for the grocer.

The relationship is surely valuable in a sense. But my relationship with my grocer is not an

associative relationship, for, although there is a kind of reciprocity in my interactions with my

grocer, these interactions do not express care and mutual concern. The relationship does not rise

above the kind of relationships that would exist in a bare community. The value of associative

relationships is therefore an intrinsic value, at least in part.

In defense of the second premise, Dworkin argues that we can understand citizens as

having associative relationships similar to the sort of relationships that are paradigmatic of

associative relationships such as friendship and family. And therefore, the conclusion of his

argument is that the obligation to obey the law arises in the same manner and for the same reason

as the obligations to friends and family members.

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Dworkin contends that the obligation to obey the law is associative because we are born

into these obligations and thus must regard them as non-voluntary. He says that these are “the

special responsibilities social practice attaches to membership in some biological or social group,

like the responsibilities of family or friends or neighbors” (196). We did not choose our parents

or family members, yet we still feel that we have particular moral obligations to our parents. So

it is by nature of the associative relationships that we have with others—not just with our

immediate community but also with our society at large—that we have certain duties and

obligations. Just as we can have a true community with respect to friends or family, Dworkin

thinks we can have a true community with respect to a large-scale society of citizens.

One may pressure Dworkin at this point to say more in defense of this idea that we have

associative relations and obligations to our fellow citizens. On first blush, there seems to be

important dissimilarities between citizen relationships and the paradigmatic kinds of associative

relationships such as those that obtain between friends and families. We are bound to our friends

and families in virtue of mutual concern for each other’s personal well-being, but in the political

case, Dworkin seems to suggest that we are bound to our fellow citizens because of social

concerns we share with our fellow citizens such as a clean environment and a prosperous

economy. Since these concerns are social in nature, and the law functions to coordinate social

concerns, we also share a mutual concern about the law. To use terminology that Thomas Nagel

introduces in his The View from Nowhere, one might worry that our relationships to other

citizens are ‘third-personal’ and impartial, and that this key feature of our relationship to other

citizens prevents us from classifying both relationships as associative relationship. Although this

is a legitimate concern, a defender of Dworkin would likely deny that our relationships to other

citizens are third-personal and impartial in the agent-neutral sense. After all, Dworkin admits

  29

that we have special obligations to citizens that belong to the same political institutions as us.

The existence of these special obligations to citizens that belong to the same political institution

as us shows that our relationships to citizens of our political institution are not impersonal.

Nagel writes, “From the objective standpoint, the fundamental thing leading to the recognition of

agent-neutral reasons is a sense that no one is more important than anyone else” (171). Nagel

continues, adding, “All reasons would have to be weighted so that everyone was equally

important” (173). But our special duties to citizens on political institutions imply a sense that

certain people, namely, citizens that belong to the same political institutions as us, are more

important, to us at least, than citizens of different political institutions. It seems to be a mistake,

then, to claim that our relations to other citizens are impartial and third-personal.

Here is another reason why we should accept the view that friendship relationships and

citizen relationships are relevantly similar. I argued earlier in my remarks about fair play

accounts that shared principles are at work in interactions between mutual friends and between

members of the same family. Although the principles at work in, say, the case of friendship, are

not laws, they share interesting similarities to laws. The principles governing friendship

relationships are universal in that they apply equally to the friends, just as laws are universal in

that they must be applied fairly and equally. While laws are backed by the power of the state,

the principles at work in friendship relationships are backed by a threat of a certain kind: the

threat of knowing that, if you habitually disobey, the friendship will dissolve and you will lose

the benefits of having a friend. This further underscores the similarity between citizenship and

friendship relationships, and works to further defend Dworkin’s view that citizenship

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relationships, like friendship relationships, are genuine associative relationships and equally

deserving of the title.

And having established the way in which citizens have obligations to obey the law, i.e.

via a true community, Dworkin goes on to discuss the three models of communities to see if they

constitute a true community. A true community is in contradistinction to the community of

circumstances model and the rulebook model of society. The community of circumstances model

of society is based on mutual self-interest and the only obligations you have are to pursue self-

interest—ideally you would not run around killing everyone because that might not be in your

own self-interest. This seems to be a full-fledged Ayn-Randian society. The rulebook model, in

which people show a “special concern for one another beyond each person’s general concern”

(212) is slightly better but it still gives individuals the power to act almost as selfishly as people

in the community of circumstances. The rulebook society is essentially a set of self-interested

compromises that people have made. For instance, if I want property rights but you want

marriage equality, we do not actually have to agree in any sense on the moral principles

underlying these two claims, but we can just make a deal that both of these demands are part of

our society. But in the community of principle model, there is agreement on at least the broad

moral principles of fairness and justice. As Dworkin says, “A community of principle, faithful to

the promise [that the law will be chosen, changed, developed, and interpreted in an overall

principled way], can claim that authority of a genuine associative community and can therefore

claim moral legitimacy—that its collective decisions are matters of obligation and not bare

power—in the name of fraternity” (214). So the kind of mutual care and concern that individuals

have for on another is genuine, not shallow.

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The model of principle is an ideal model to compare against an existing community. Of

course not everyone will actually manifest attitudes of mutual care and concern in a real

community. Dworkin says that marriages, friendships and the like are not likely to persist if

individuals completely lack feelings of care and concern for the others in the relationship, but

that this is merely a practical requirement for being in a marriage or friendship, not a constitutive

one. What is a constitutive feature of a couple’s marriage or friendship is their avowal of, or

commitment to, care and concern for the other. So long as the individuals in the relationship are

willing to “assert and acknowledge responsibilities” of the appropriate kind toward the other, it is

reasonable to interpret their relationship as a genuine friendship or marriage.

Dworkin’s characterization of associative relationships therefore draws on a notion that

he uses in his other work in legal philosophy: the notion of interpretation. The concept of

interpretation presupposes that there is something that is being interpreted. In the case of law

and political philosophy, the something that is being interpreted is some concept that exists prior

to one’s interpretation of it, while in the case of associative relationships, that something that is

being interpreted is a set of expressed commitments. In order for something to be an

interpretation of something else, it must preserve certain features of that original concept. But

because it is an interpretation, the interpretation will also involve a creative component: it is an

attempt to add something to, or, better, bring something out of, the original concept6.

Dworkin argues by extension that citizenship relationships can be genuine associative

relationships without individual citizens actually manifesting attitudes of care and concern

towards other citizens. Like in the friendship and marriage cases, all that citizens must have in

order to be in associative relations with each other is a willingness to assert and acknowledge

                                                                                                                         6  “Interpretation and coherence in Legal Reasoning”, SEP, section 2.2  

  32

their responsibilities to other citizens qua citizens. The assertion and acknowledgement of

citizens’ responsibilities to other citizens qua citizens gives us material that can ground an

interpretation of the citizenship relation as expressive of mutual care and concern even in the

(likely) event that not every citizen bears these particular psychological attitudes towards every

other citizen in the political institution. Such responsibilities are responsibilities to conform to

certain principles. These principles would be particular to the kind of political arrangement that

governs the citizens, but would include principles such as voting, being informed about political

issues, listening to other citizens as they voice their concerns, and so on.

Dworkin puts emphasis on a commitment to principles rather than attitudes because for

him moral claims are not derived from the way we feel about one another. They cannot be

characterized as just “I feel a certain way toward my neighbor and thus treat him in a certain

way.” It is that I have a moral duty and those duties come from the very nature of our associative

relationship.

However, Dworkin does not discount the psychological as being somehow constitutive of

the relationships that people have, but he seems to hold that our duties toward one another in any

kind of relationship are moral duties and have more force than simply you wanting to do

something or feeling a certain way—these duties have more of a universal validity than one

could derive from simple psychological concern. He writes:

The responsibilities a true community deploys are special and individualized and display a pervasive mutual concern that fits a plausible conception of equal concern. These are not psychological conditions. Though a group will rarely meet or long sustain them unless its members by and large actually feel some emotional bond with one another, the conditions do not themselves demand this. The concern they require is an interpretive property of the group's practices of asserting and acknowledging responsibilities—these must be practices that people with the right level of concern would adopt—not a psychological property of some fixed number of the actual members. So, contrary to the assumption

  33

that seemed to argue against assimilating political to associative obligations, associative communities can be larger and more anonymous than they could be if it were a necessary condition that each member love all others, or even that they know them or know who they are. (200-201)

Indeed, I agree with Dworkin that psychological attitudes are not necessary for associative

obligations. If we were to hold that psychological attitudes are necessary to generate associative

obligations, then the view would have the following implication: the moral obligations that

members of a community have toward one another would depend on their positive feelings and

attitudes towards others in that community. But it is entirely possible, in fact quite likely, that at

least some of the people in that community will have negative feelings and attitudes towards

others in that community. If that is the case, then do they no longer have any obligations to those

people? Can they treat them however they want if they happen not to like them? Like the consent

account, this would run into absurd implications that would be very difficult or impossible to

accept.

One might worry that the obligations that constitute the relationship stem ultimately from

certain non-normative features of the relationship. Although this seems plausible, it is not the

case on Dworkin’s account. If the friendship-making features of a relationship, the features of a

relationship that made the relationship a genuine friendship, were psychological features of care

and concern, then there would be a case to be made that the friendship, and therefore the

obligations that it produces, ultimately stemmed from non-normative features such as the

participants’ attitudes. Dworkin, however, rejects this. He argues instead that the friendship is

constituted by the assertions and acknowledgements of responsibility to each other by the friends

in the relationship. The fact that these assertions and acknowledgements are the friendship-

making features is a further function of these assertions and acknowledgments’ status as

  34

interpretive expressions. Interpretations are normative in character: they not only describe

aspects of the subject matter that they are interpreting, but also creatively express how that

subject matter ought to be.

Dworkin’s emphasis on shared principles fits well with his overarching theory of the law

as integrity, which is that laws—with all sorts of qualifications—express our moral duties, and if

we look at our entire set of laws, we can derive right and wrong answers about how to decide

certain legal cases and how to make certain moral decisions.

Dworkin’s law as integrity thesis is, in other words, a kind of natural law analysis of our

concept of a law. The way to understand Dworkin’s conception of the nature of law is to look at

it in contradistinction to the lively debate between the intellectual heavyweights H.L.A. Hart and

Lord Devlin7. Permit me to expound on the debate since it helps summarize contemporary

competing legal principles and provide insight into Dworkin’s ideas.

The debate initially occurred between Hart and Devlin over the issue of legalizing

homosexual acts and prostitution, and broached the broader issue of the relationship between law

and morality. Hart argued that one must separate law and morality — law is ontologically

different and is a distinctive social fact. According to this view, laws are to be understood as

social rules, valid because a legitimate authority enacts them. Among other things, Hart did not

want to entangle public morality with law because he did not believe that conventional morality

should be a justification for limiting individual liberty. So, instead of tethering positive law to

morality as the foundation for its justification, which was what had occurred through a long

intellectual tradition that is known as the Natural Law Thesis, Hart turned to John Stuart Mill’s

                                                                                                                         7 A deeply illuminating history and exposition of this debate is provided by legal theorist Peter Cane, in his article, “Taking Law Seriously: Starting Points of the Hart/Devlin Debate” (2006), which in part informs my analysis.  

  35

famous harm principle. Under this principle, an action can be made illegal if and only if it

produces harm to individuals. Since acts of homosexuality and prostitution are private and do

not really harm anyone, they ought not to be proscribed by law.

Devlin countered Hart, arguing that law, particularly criminal law, can further the moral

sensibilities of society. Devlin argued that criminalizing activities is also premised on the notion

that these are things society does not want to condone or endorse. Therefore, there exists a stable

notion of public morality, and law exists to further these notions. Devlin said, “There is

disintegration when no common morality is observed, and history shows that the loosening of

moral bonds is often the first stage of disintegration, so that society is justified in taking the same

steps to preserve its moral code as it does to preserve its government.”8 Thus, according to this

view, engaging in certain activities, such as prostitution, even in private, can constitute an attack

on societal norms and can be justifiably proscribed by laws.

Dworkin sought to move beyond both of these views, arguing that none of them gave us

an adequate conception of law. In order for law to be truly justified, we necessarily need to

invoke certain moral notions. It must be noted that this is quite different from Devlin’s point that

laws are themselves moral rules. Dworkin does not come up with substantive moral concepts but

points to broad notions like law as integrity and law as being committed to moral concepts such

as equality and liberty. As such, he does not go so far as to support Devlin’s idea of law as a

mere codification of societal morality.

If we apply Dworkin’s law as integrity thesis to the case of a community, we see that the

presence of laws that govern the community entail that citizens bear moral duties toward one

another. They stem from sharing certain principles like fairness and reciprocity and equal

                                                                                                                         8  P.380, Law and Morality: Readings in Legal Philosophy

  36

concern but they have greater prescriptive force than would simple psychological desires that we

may share. We derive the duties from the law in the sense that our interpretation of this whole

body of the law is what gives us answers to questions about duties.

§4

Critique of Dworkin

I agree with Dworkin that the legitimacy of laws or governing institutions is derived from

associative relations that create obligations to the community and that those relations

characterize a true community.

In this section, I argue that we should reject the second premise of the argument from the

previous section. Here it is again:

P (2): The relationships that citizens of a political jurisdiction bear towards other citizens of that

jurisdiction are associative relationships.

I argue that this is not true of all political jurisdictions. In my view you cannot interpret

citizens of large-scale societies as having a commitment to shared principles. Take, for example,

a large representative democracy. We saw in the long block quote above that Dworkin believes

that even large, anonymous communities can rise to the level of associative communities. The

reason for this is that associative relationships between members of a group do not require that

the members of this group in fact care and show equal concern for other members in the group.

Associative relationships can obtain between members of a group so long as the members of the

group are disposed to engage in practices of “asserting and acknowledging” (201) the

responsibilities typical of groups of their kind that they bear towards the other members. In other

words, for Dworkin, in order to have a genuine commitment to shared principles to political or

other types of relations, this asserting and acknowledging plays a crucial role.

  37

I argue that there is nothing about procedural democracies at least that guarantees that

members of these democracies assert and acknowledge the responsibilities that we associate with

membership in a procedural democracy. One of the primary responsibilities of citizens in a

procedural democracy is the responsibility of voting. Procedural democracies simply require a

vote. Many people in procedural democracy will not take themselves to have civic

responsibilities such as voting. And therefore we will not assert and acknowledge these

responsibilities. If there are citizens that do not assert and acknowledge their responsibilities (to

vote and whatever else their responsibilities might be) to other citizens qua citizens, then these

citizens do not engage in the kinds of practices of assertion and avowal of commitments that

Dworkin takes to be required for a plausible interpretation of these citizens as expressing the

care, mutual concern, and reciprocity towards their fellow citizens that constitute any genuine

associative relationship.

Even if voting is mandatory, then simply going to the polls does not constitute an

assertion and acknowledgement of this responsibility. One could simply be flipping levers at

random and going in order to avoid the punishment. There is nothing about the process of voting

as such that conveys acknowledgement of the norms of procedural democracies. It is indeed

conceivable that a citizen refuses to vote in elections as a protest to the current form of political

organization. In this case, her refusal to vote might count as an assertion and acknowledgement

of democratic principles. However, this would be just one instance of asserting and

acknowledging relationships. One cannot interpret a single instance of doing something as

satisfying Dworkin’s requirement that members of associative relationships, at minimum, assert

and acknowledge their responsibilities qua member of that relationship.

  38

In contrast to the procedural democracy case above, the primary responsibility of citizens

in a deliberative democracy is the responsibility of engaging in collective deliberation and

communication about how to live together. Everyone in such a democracy must implicitly assert

and acknowledge responsibilities of engaging in deliberation. If this is true, then Dworkin’s

claim that citizenship relationships are associative relationships obtains in a deliberative

democracy.

This might make assertion and acknowledgment of responsibility more likely, but it does

not guarantee it. There will be naysayers in any size community.

One type of naysayer is someone who does not agree with a particular decision made as

an outcome of the deliberative democratic process. Furthermore, he does not support

deliberative democracies and claims that deliberation is not politically valuable. Even such a

person, however, is explicitly asserting and acknowledging his responsibility in the act of protest.

By asserting to others in the community that they do not support deliberative democracies and

that deliberation is not politically valuable, such a person is engaging in the very practice they

claim is not valuable. They are acknowledging the importance of the primary responsibility of

people in a deliberative democracy, namely, to engage in collective deliberation.

In order not to assert and acknowledge the value of deliberation about how to live

together, one would have to fail to communicate at all. Such a person could hardly be

considered a member of the community. Of course, there are such people that live within the

jurisdictional confines of the government that rules over that small community. But mere

jurisdictional proximity does not suffice for membership in a community; one needs to have at

least some minimal interaction with that community as well.

  39

In case this is not yet made sufficiently clear, here is another, somewhat fantastical,

illustration. Edward Snowden currently lives in Moscow. Now a wizard moves Snowden at

hypersonic speeds into an abandoned but pleasantly furnished house in the middle of Pawnee,

Indiana. The wizard then constructs a thin immaterial shield around the perimeter of the house

that prevents Snowden from interacting with the people outside, and the people outside from

interacting with Snowden. It seems clear at least in this case that Snowden’s mere jurisdictional

proximity to the townsfolk of Pawnee does not suffice to make him a member of the Pawnee

community. In order for him to be a plausible candidate for community membership, he would

have to interact with the people in some way.

As a challenge to my view, someone might run the following scenario: If someone does

not want to be part of the community because that person does not share principles, then what

happens? My answer is that if someone does not want to be part of the community, then she does

not have to. She can disassociate. However, if someone is part of the community and engages in

deliberative democracy, but merely utters that he does not consent to the principles and therefore

does not have to abide by them, then the person’s claim that she is not sharing principles with

others in that community is just disingenuous. It is a contradiction to claim that someone is

disassociating from a deliberative democracy when she is also communicating with words her

desire to be unassociated with that deliberative democracy.

To illustrate instances of inter-subjective deliberation, imagine someone in a small town

who lives in a house in the center of the town, but does not ever deliberate with others about how

to live together. Such a person could not barter at the marketplace or plead her case when she is

asked to come to court. She could not signal what she wanted to buy at the store, or tell the

  40

mailman to pick up her mail. She would have to be entirely self-sufficient. Such a person seems

so totally isolated that it seems wrong to say that she is a member of that community at all.

Deliberation is thus a necessary condition of involvement in a group at all.

These examples (such as bartering at the market place) may seem irrelevant to political

philosophy, but they are in fact the kinds of interactions from which political life is built. All of

these are instances of small-scale deliberation about how to live together. When I signal to the

shopkeeper that I want these oranges, and offer three eggs in response, the shopkeeper and I are

engaged in a kind of deliberation about how we will live together. Both of us are in fact ‘living

together’, at least across that exchange, and living together requires deliberation.

It is a mistake to infer from the claim that deliberation is ubiquitous, however, that every

procedural democracy is then a deliberative democracy. Of course it is true that people buy and

sell things within procedural democracies. This does not license the conclusion that the

procedural democracy is also a deliberative democracy. The fallacy at work here is similar to the

fallacy of composition. The fallacy of composition works like this: you claim that all parts of an

entity have a certain feature, and then infer from this that the entity has that feature as well. That

this is a fallacy is illustrated by the following thought: although all the cells that constitute the

elephant are small, it is not the case that the elephant, which has all these cells as parts, is also

small. Similarly, even if many parts of a procedural democratic society are deliberative in nature

and even constitute deliberative democracies in some sense, it would be a mistake to infer from

this that the entire society itself, which is structured on procedural grounds, is also a deliberative

democracy.

One might also object to my view on the following grounds. I have argued that

deliberation with other agents is ubiquitous and inescapable for anyone that counts as being a

  41

member of a genuine community. One might then think that that commits me to an implausible

view: that whenever two or three are gathered together in mutual deliberation, there is a

deliberative democracy there as well. I do not think that this conclusion is licensed. I argue the

Dworkinian point that, in order for the relationships that a citizen of a deliberative democracy

bears toward other citizens of a deliberative democracy qua members of that deliberative

democracy to qualify as genuinely associative relationships, citizens must, minimally, assert and

acknowledge that they bear these responsibilities. I further argue that one such responsibility,

indeed, the most important responsibility that citizens of deliberative democracies bear towards

other members of their deliberative democracy, is the responsibility to engage in mutual

deliberation. Third, I argue that any such member of a deliberative democracy is going to assert

and acknowledge this important responsibility simply by engaging in mutual deliberation at all.

It is a conceptual truth that all members of a deliberative democracy will do this, since any

‘member’ of a community that does not engage in deliberation with others cannot be said to be a

genuine member of that group. This was the point of the small town example from above. I then

conclude that, in order for any member of a deliberative democracy to qualify as a member of

that group at all, they must engage in mutual deliberation and thereby assert and acknowledge

their commitment to the principle of mutual deliberation.

It does not follow from this that every instance of mutual deliberation is an instance of

deliberative democracy. The reason is simply that there is more to being a deliberative

democracy than being a community of people engaged in mutual deliberation. In addition to

mutual deliberation, members of a deliberative democracy must do things like vote. Now, as I

have shown, it is true that citizens are not necessarily asserting and acknowledging their

responsibility to vote in a way consonant with their particular deliberative democracy. However,

  42

their necessary assertion and acknowledgement of the principle of mutual deliberation at least

gives us a minimum level of assertion and acknowledgment of the responsibilities they bear to

each other qua members of a deliberative democracy provides the material that we can use in

constructing a plausible interpretation of these citizens’ mutual relationships as genuinely

associative relationships.

To recap, Dworkin’s argument does not succeed in showing that citizenship itself is

sufficient to generate associative relationships among the other citizens in a (non-deliberative

democratic) state, since there is nothing about citizenship in itself that guarantees that citizens all

assert and acknowledge the responsibilities typical of citizens of their particular political group.

Deliberative democracies, however, seem sufficient to generate associative relationships across

their citizens, since it is impossible for citizens of a deliberative democracy to be part of society

at all without engaging in deliberation and therefore acknowledging the responsibility to

deliberate with others in the group which is the constitutive principle of deliberative democracy.

Thus, while I argued against P2, I am defending a modification of it:

P (2*): The relationships that citizens of a deliberative democracy bear towards other

citizens of that jurisdiction are associative relationships.

To be clear, I take myself to have given an argument that citizens of a deliberative

democracy are guaranteed to assert and acknowledge at least one of the responsibilities typical of

citizens of their particular political group: the responsibility of engaging in mutual deliberation.

However, even if one does not accept my argument for this conclusion, the argument of the rest

of this paper would follow even from a weaker claim that citizens of a deliberative democracy

  43

are more likely to assert and acknowledge these responsibilities. Even opponents of my previous

argument, then, may have some reason to keep reading.

Deliberation is voicing one’s thoughts through conversation. Thus deliberation is a kind

of communication. This is not surprising because if you think about what it means to be part of a

group at all, this will involve communication. This seems to be true about both large and small

communities, since in both cases, there is a requirement that some members communicate with

each other and no such requirement that members communicate with people outside the group:

The relationship between communities and communication even produces a surprising

application for Aristotle’s function argument. My thesis does not rest on Aristotle, but it does

illuminate the role of communication and the nature of communities.

It seems plausible that communities are functionally defined. If something is functionally

defined, what it is to be that thing is to fulfill that function. So, for instance, if we say that a

thermometer is functionally defined, we mean that what it is to be a thermometer is to fulfill a

particular function, which in this case is to produce temperature readings when the thermometer

is a certain temperature. If a thermometer is functionally defined, then it no longer counts as a

thermometer when it does not fulfill this function: a broken thermometer would be no

thermometer at all. The function argument follows this generic form:

1. Things ought to fulfill their functions. 2. Object x has function F. 3. Therefore, x ought to do F.

The argument for the first premise draws on the thought the good of that thing resides within its

function. Things are better (more excellent) to the extent that they fulfill their function well.

  44

Excellence is a normative notion: if something is an excellence for the kind of thing I am, then I

ought to aim at it.

One might think that associative communities have a particular function and that this

function, through the function argument, gives rise to moral obligations. A plausible way to

describe the function of a community is that to be such that their members fulfill the community-

specific obligations toward the other members of the community. We saw this in the case of

friendship, in which friends have obligations to satisfy their friends’ needs of companionship and

having fun. Applying the general argumentative scheme of the function argument to the case of

the associative community, we get:

C 1 Associative communities ought to fulfill their functions.

C 2 An associative community has the function of being such that its members fulfill their community-specific obligations toward one another.

C 3 Therefore, members in the associative community ought to fulfill their community-specific obligations toward one another.

Dworkin himself provides evidence for C (2). Associative communities seem to have a

function on Dworkin’s account. For Dworkin, associative communities are excellent to the

extent that their members fulfill their community-specific obligations toward one another. C (3)

follows deductively from (1) and (2).

The question that naturally arises at this point is: what are our community-specific

obligations to one another? I argue that we can give a plausible general account of community-

specific obligations in terms of the satisfaction of the relationship-specific needs of the

individuals with whom one is in a relationship. By ‘relation-specific needs’, I mean the

  45

following. If a need is specific to a relationship R, then individuals who relate to each other in

the R way have obligations to satisfy these needs in the other individuals to which one is R-

related. For example, since companionship is a need specific to friendships, friends have

obligations to satisfy their friends’ needs for companionship. Financial transparency is a need

specific to relationships between business owners and accountants, but not necessarily between

friends.

This will be made clearer if one considers again in more detail the paradigmatic case of

an associative relation: the friendship. Dworkin does acknowledge that there are sacrifices

involved in being a friend to another person. He does not, though, say exactly what kind of

sacrifices this involves. Certainly there are kinds of sacrifices that friendship does not require

one to make. I suggest that another constitutive component of friendship—a feature that makes

relationships of friendship relationships of friendship rather than something else—is the fact that

one’s obligations to the other involve the satisfaction of a particular subset of the other person’s

needs: things like fun, companionship, mutual aid in domestic pursuits, and so on.

Dworkin appeals to the notion of friendship as a paradigmatic kind of associative

relationship and then uses the example of friendship in order to derive features common to all

associative relationships (199). I will call this the Friendship Argument, which is as follows:

F 1: friendships are paradigmatic cases of associative relationships

F 2: If friendships are paradigmatic cases of associative relationships, then certain

important features of friendships will feature in the other associative relationships.

F 3: So we can learn about what kind of communication is involved with associative

relationships by studying friendship.

  46

This argument seems problematic. Even if you think that friendship relations are

paradigmatic of associative relationships, you cannot just look at features of friendships and

claim that these are features of associative relationships. Here is a feature of friendships: that

they are friendships. Obviously, we cannot claim that all associative relationships must have the

feature of being friendships. But why not? It is not clear from Dworkin’s methodology how we

are supposed to distinguish between the feature of friendship that are common to associative

relationships, and the features of friendship that are unique to friendship.

Dworkin’s intention might be to use friendship more as an analogy than as a strict

exemplar. Therefore, he might not consider the Friendship Argument as a fair interpretation of

his view. My point is that, whatever his intention might be, this is the way that Dworkin’s

argument should work.

Such a good exemplar of an associative relationship that other associative relationships

cannot simply qualify as associative relationships in virtue of being analogous to friendship.

They have to participate in the form of associative relationship that is perfectly instantiated by

friendship given its status as a paradigm. Dworkin does, therefore, seem to be correctly tracking

the features of friendship that are indeed common to other associative relationships. So he seems

to be on to something. What I offer now is a theory as to what he is on to.

If you think about the fact that what makes friendship a friendship rather than something

else is that the obligations it imposes are obligations to satisfy a certain set of needs, one gets a

nice result. I want to suggest that the requirement of members’ satisfaction of other members’

needs peculiar to the community can in fact function as an explanation of the four features of

  47

associative communities, the possession of which distinguishes associative communities from

mere bare communities. Those four features are specialty, personality, concern, and equal

concern9. The obligations that members of a community bear towards one another are special in

the sense of holding distinctly within members of the group because the obligations are to

provide for the needs peculiar to a community of that kind. The community members’

obligations are personal because the needs the promotion of which constitutes the obligations are

needs of individuals within the society and not the needs of the community as a whole. The

community members’ obligations require concern for others in the group because a fulfilled

obligation is simply the satisfaction of one of the relevant needs of a member. Dworkin does not

define the notion of concern, but he does seem to think that it is at least in part a non-

psychological notion. Perhaps he means something like the following: If I satisfy the needs of

someone, I am de facto expressing concern for them (what I call material concern for them) even

if I do not have positive psychological attitudes of concern (what I would call formal concern or

de jure concern) towards them. Dworkin’s idea of treating a partner as partner (200) suggests a

language of dignity. The context in which we speak of dignity, we speak of respect and concern.

And if we are treating and acknowledging each partner as partner, we are assigning equal dignity

and also having concern.

Thus, focusing the associative relationships on needs moves the account of associative

relations away from the level of abstraction that Dworkin admits to be operating on (198), and

moving it towards concrete things like particular needs. This seems to be a further advantage of

my proffered explanation of the desiderata of associative relationships in terms of satisfaction of

needs.

                                                                                                                         9  As I explained on page 26

  48

The needs whose satisfaction creates obligations in relationships of friendship are needs

of fun, companionship and so on. Similarly, the needs whose satisfaction creates obligations in

relationships of political association are things like security, access to resources, agency, liberty

and so on. This transitions us from the notion of friendship to the notion of political association.

Like friendship relations, relations of political association are constituted by obligations to

satisfy needs such as security and liberty that are specific to relationships of political association.

The language of constitution here is meant to express the following. It is that my obligations to

Sally, say, are obligations to satisfy her needs of liberty and security that makes my relationship

to Sally a relationship of political association and not, say, a relationship of friendship.

Similarly, it is that my obligations to Tim are obligations to satisfy Tim’s needs of having fun

and wanting to avoid loneliness that my relationship to Tim is a relationship of friendship and

not a relationship of political association. I might, of course, have obligations to satisfy Tim’s

needs of liberty, security, fun and avoiding isolation all together. But this would simply entail

that I have two associative relationships toward Tim, namely, a friend relationship and a political

association relationship—rather than just one.

I take this to be implicit in Dworkin’s line of argumentation. However, even if one does

not adopt my particular interpretation of Dworkin’s argument, one can understand my view of

the nature of associative obligations as a friendly development of Dworkin’s distinct but similar

view.

Another feature I think is implicit in Dworkin’s account is that communication is a

presupposition of community. Now, Dworkin appealed to friendship as a paradigmatic case of

associative relationship. We should not ignore the fact that friendships involve communication

of a certain kind: the communication of one’s needs that are relevant to the friendship

  49

relationship. Dworkin says that associative relations require sacrifices. Friendships satisfy our

needs of mutual aid, companionship, and fun.

In order for members to fulfill their community-specific obligations toward one another,

they have to engage in communication. Members of a community will not be able to fulfill their

obligations toward one another without being able to communicate with each other the needs

specific to that kind of community that the members of the community have an obligation to

fulfill. Given this, my particular account of associative obligation seems not to undermine the

argument I made above that the relationships that citizens of deliberative democracies bear

towards other citizens in their deliberative democracy count as genuinely associative

relationships.

The arguments that I have heretofore given in this paper are in the domain of political

theory and political philosophy. They aimed to develop theoretical connections between the

notion of associative relationship, associative obligation, moral obligation, relation-specific need,

and deliberative democracy. One might reasonably wonder whether the theoretical picture I

have provided has anything to do with the real world, which is, after all, the one that we live in.

In the remaining section of this paper, then, I will turn to questions about whether and how a

deliberative democracy might work in practice, and what it might look like.

  50

§5

Applicability of Deliberative Democracy

According to Dworkin, there is technically no limit on the size of the group but there are

institutional conditions. Technically speaking, if you had a global government that would

resemble a community of principle, then there would be associative relationships that would

trigger obligations to citizens and to the law. Dworkin might reply to this scenario by

acknowledging that indeed there is nothing in principle wrong about it, but suggest that this type

of community would not last very long. Recent technological developments, such as the Internet,

seem to put pressure on the idea that the size of the community must in principle be limited by

physical constraints. The Internet has a significant ability to allow even very large groups of

people to communicate with each other in ways that would have been unimaginable when we

were limited to, say, the telegraph. The existence of the internet is, of course, not sufficient for

the existence of a deliberative democracy just as, as I have argued previously, the existence of

communication between two people does not suffice to make those two people members of a

deliberative democracy. So it would be a mistake to conclude that the sphere of the Internet, if

not the entire world, is now a deliberative democracy just because we are now able to

communicate with everyone else in a kind of public sphere.

There is also a concern about justice raised by considering size constraints on deliberative

democracies. If deliberative democracies are limited to a certain size, then the deliberative

democracy might impose large externalities on non-members, such as raiding and pillaging or

exploitation of non-members’ resources.

  51

This is a reason to work towards eliminating technological and institutional barriers to

increasing the size of a deliberative democracy. It is not an argument that we should prefer some

other form of government to a procedural democracy.

These are of course just sketches of what deliberative democracies might look like in

practice and whether they would or would not face technological and institutional constraints on

their size that other forms of government would not face. I hope to have at least done some work

in securing the theoretical foundations of deliberative democracies that can help us see that these

sorts of governments are valuable and that the sorts of relationships that would exist among

members of deliberative democracies would also be valuable. As such, we should try to make

them work and think more carefully and thoughtfully about the practical issues of deliberative

democracies.

  52

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