The Content-Independence of Political Obligations

In a recent article, ¹ George Klosko denies that political obligations are necessarily “requirements to obey the law for the content-independent . . . reason that it is the law” (498–99). He locates the object of his denial in Thomas Hobbes’s famous definition of command (499). According to Hobbes, “[c]ommand is where a man saith Doe this or Doe not this, without expecting other reason than the Will of him that says it.” ² Klosko also cites several contemporary scholars as proponents of the need for political obligations to be content-independent (502–3). He holds that their endorsement of this proviso is a significant cause of the “skeptical consensus” in the current literature (515), since it obstructs “progress in regard to the central task of traditional theories of political obligation, establishing moral reasons to behave in accordance with all defensible laws” (499). By omitting content-independence from the criteria that political obligations must satisfy, Klosko is able to expound a pluralistic theory that accumulates moral reasons for obedience that are contingent on the substance of particular laws. He declares that his account, when fully developed, “will ground requirements for all or almost all citizens to behave in accordance with almost all laws” (516).

Klosko makes four arguments for the dispensability of content-independence. First, he queries the oft-asserted resemblance between moral obligations to keep promises, each of which is commonly—but not quite accurately, he maintains (503)—thought to bind irrespective of its specific merits, and those to obey legal rules. His dismissal of the purported analogy is swift: whereas both the substance and the moral force of a promise are established by the person whom it obligates, neither of these aspects of a law is set by someone who is bound to obey it; rather, the law itself is their source (503). Klosko’s perception of this discrepancy educes his second argument, which concerns the proper limits of the law. He challenges the “standard” (499) view of the self-image of the state, according to which “it is able to generate moral requirements in regard to any content by making laws” (504). This view is, he insists, confounded by the actual representations of (at least American) officials (508). He contends that the state’s self-image, in reality, fits with his proposed theory (509). Klosko’s third argument looks beyond the claims of officials to those of people more generally, with which, he supposes, any theory should also tally. From the “surprisingly scanty” (509) research, he infers that “people feel they should obey only laws that have adequate underlying reasons” (500). His fourth argument is that the criterion of content-independence is actually “complex and messy” because “in many cases, there are content-independent reasons to act as the law commands, but in virtually none of these are the reasons to do so because it is the law” (500–501).

In disputing the necessity of content-independence, however, Klosko neglects the seemingly critical distinction, which many theorists accept, between obedience to legal rules and mere compliance (or, as some say, conformity) with them. On Klosko’s analysis, the former is not a content-independent species of the latter but is equivalent to it. His sense of obedience is “loose” (518).

Even if, as Klosko’s third argument implies, people generally share his understanding of obedience, their agreement, while pertinent, is surely not all that matters. The clarity that the obedience–compliance distinction affords is significant, too. It facilitates identification of the question about political obligations that intrigues scores of philosophers, including J. L. Mackie, who puts it thus: “Is there an obligation to obey the law as such, over and above whatever other obligations we may have to do the specific things that the law requires?” ³ Klosko’s imprecision obscures this enquiry and masks his deviation from it. The impression of continuity that his definition of obedience generates is quite false, since none of the philosophers whose project Mackie articulates would endorse Klosko’s (previously quoted) description of the “central task of traditional theories of political obligation.”

But perhaps the search for content-independent reasons to obey legal norms really is misconceived. I am not persuaded. Although expressions of content-independence tend to be as indeterminate as Klosko’s fourth argument suggests - especially ambiguous are those numerous statements that end “because the law requires it” or similarly - two distinct conceptions can be isolated, one of which is cogent and, moreover, compatible with virtually all, including skeptical, theories of political obligation. Yet Klosko does not contemplate it. Instead, he attends exclusively to the other interpretation, which he rightly, albeit not for the most obvious reason, discards, and wrongly, even if explicably, given the aforementioned lack of clarity in the literature, ascribes to several of the numerous philosophers with whose theories it simply cannot be reconciled.

According to the Hobbesian understanding of content-independence against which Klosko argues, a legal norm just is a moral requirement for its subjects to act, but not to reason at all about acting, in the manner that it tells them to act. Drawing on recent work by David Enoch, one may say that it “constitutes” (and thus, in a sense, provides) a moral obligation to do as it stipulates that precludes action-oriented reflection on any other consideration. ⁴ The state is the author of every political obligation, on this interpretation, as Klosko stresses, especially in his first argument. Curiously, however, he overlooks a more basic problem: the conflict between such heteronomy and the reasoning in which moral agents necessarily engage. Political obligations cannot be bothcontent-independent in this way and moral, given the inconsistency of the first property with the autonomy that the second presumes. For Robert Paul Wolff, on at least one reading of his much-disputed analysis, anarchism must follow. ⁵

Yet content-independence can be construed more plausibly. Indeed, Klosko himself seems to recognize an alternative when he concedes that “formal” reasons actually “satisfy the requirements of content-independence” (511). They do so, I submit, not because they consist in legal rules, but because these rules, whatever the merits of each, might be said, again following Enoch, to “trigger” (and thus, in another sense, provides) them. ⁶ Moral agency is compatible with this interpretation, since the law merely activates principles of legitimacy—fairness, which Klosko champions, might be among them—about which people deliberate and, moreover, disagree. Only assessment of the substance of individual laws is precluded, on this understanding, in contrast to the first, on which principles of legitimacy are excluded from consideration, too. This view, on the assumption that no third is available, must be, though is not obviously, held by every philosopher who admits the possibility, even if not also the current reality, of rational support for moral obligations to obey the law. With the sole exception of Wolff, all of those whom Klosko regards as committed to the necessity of content-independence are bound to interpret the condition in this way. Hence, the words of one commentator on Wolff’s defense of anarchism might appropriately be directed at Klosko’s critique of the widely perceived need for political obligations to be content-independent: “It at most destroys a position which, so far as can reasonably be judged, virtually no one has ever held.” ⁷