The Disagreement Dilemma: Democratic Authority and the Problem of Clear Mistakes

• In Event: Rights, Obligations, and Authority

Abstract

The philosophical anarchism of Simmons (1979) - the conclusion that citizens in general do not have an obligation to obey the law - has been very influential. Against Simmons, Stilz (2009) has argued, following Kant, that the indeterminacy of our moral duties in the absence of the state makes philosophical anarchism unacceptable. Other authors (e.g. Christiano (2008)) have used similar arguments to reject philosophical anarchism. In addition, both authors defend the authority of democracy, provided that it obeys certain substantive limits. This requirement is important for the plausibility of their positions, since - otherwise - citizens of a democratic state that passed egregious laws would, nevertheless, have a duty to obey.

In this paper I argue that such opponents of philosophical anarchism must choose to either hold that the mandates of morality are indeterminate in the absence of the state or to rely on pre-institutional substantive limits as a response to the possibility of democratic authority going awry. It is untenable to argue that we cannot know what morality demands of us in the absence of the state, but also that we can appeal to moral standards that lie outside of the state in order to determine the limits of state authority. There is no reason to believe that we can independently access morality in one case but not the other.

In order to uphold the authority of democracy generally while denying authority to immoral law, Stilz and Christiano rely on a distinction, defended originally by Raz (1988), between “clear” and less clear mistakes. According to Raz, we can consistently hold that when authorities make clear mistakes, they lose their legitimacy; but that they maintain it in the case of less clear mistakes, because the reason the authority exists is precisely to resolve questions that we don’t independently know the answer to.

I argue that theorists who rely on such a distinction face a dilemma. They must either (i) provide the limits (i.e. the list of “clear mistakes”) themselves, in which case they must explain why they can do that despite the existence of disagreement (about the limits) - i.e. they must explain why their own definitions of such limits can supersede a democratic decision; or (ii) they must accept that people are to individually judge whether a threshold of acceptability has been crossed. But theorists must recognize that the latter position is actually highly threatening to democratic authority. If citizens have political obligation only when they consider the state just (according to their own understanding of justice), then a large number of people in existing democracies might not have any obligations, since they might consider these states unjust for various reasons (e.g. systematic marginalization of various groups).

The problem for such opponents of philosophical anarchism is that they attempt to specify substantive limits to the authority of democracy while simultaneously claiming to not be giving preference to overly specific substantive views of justice. When theorists specify such substantive bounds, they must recognize that they are not being neutral between their own substantive view and that of existing citizens. They must then explain why they can let go of such neutrality. Raz actually provides an argument for that, which consists in openly rejecting the idea (present in different forms in Rawls and Nozick) that it is desirable for state authorities to be “neutral” among different substantive views. My claim is that Stilz and Christiano would have to present an argument of this type, but instead they attempt to adopt a view of supposed neutrality.

I argue that theorists must adopt one of two views: either accept philosophical anarchism; or, like Raz, openly abandon neutrality about substantive views as a desideratum. Theorists who adopt the latter route must, however, answer two key questions: (i) what exactly is the standpoint P from which it is possible to say that people cannot democratically choose to violate a certain rule, even if they themselves want to (for instance, unanimously); and (ii) if such a point of view exists, why does it not undermine democracy generally - i.e. why can’t the point of view P be used to provide a more extensive set of rules than only the “minimal” ones, since there seems to be a standpoint that knows better than the people themselves.

References:

Christiano, T. (2008). The Constitution of Equality: Democratic Authority and Its Limits. Oxford University Press
Raz, J. (1988) . The Morality of Freedom. Oxford University Press.
Simmons, A. J. (1979). Moral Principles and Political Obligations. Princeton University Press.
Stilz, A. (2009). Liberal Loyalty: Freedom, Obligation and the State. Princeton University Press.

Author

• Gustavo Lisboa