Moral and Legal Legitimacy
But even in its limited role, the approval has provoked sharp criticism. (For a good overview, see Simmons 1979, 57-100; for a qualified defense, see Beran 1987.) These focus on the questions of whether it actually exists and, if given, whether it would bind. Consent is not mere consensus or consent; It is a performative commitment that assumes a commitment through the act of consent itself. However, as with other promises and oaths, there are limits to its validity. We must ensure that consent is not revoked by mistake, coercion or coercion. It must also respect the limits of its validity in terms of content. Locke argues that one cannot accept being killed, and therefore not slavery, and therefore nothing that amounts to slavery, including absolute government. One can think of an argument similar to the conclusion that political consent must be revocable. But as we build under all these conditions of validity, the commitment itself seems to do less and less work. Pitkin thinks he becomes “essentially irrelevant” in Locke`s version (Pitkin 1965, 57). Approval is saved from irrelevance only if we can explain why we value the power of committing to obedience. David Hume could not think of any reason: keeping one`s promises is an “artificial virtue” that serves the common good, just like obedience to the law.
As long as the law is reasonably legitimate – and Hume is prepared to give it a very large place – a promise to keep is superfluous, because any plausible answer to the question of why we are bound by the promise would have “immediately, without any cycle, taken into account our obligation of fidelity”; “Since we are of equal power and authority, we gain nothing by dissolving one into the other” (Hume 1985, 481). However, a theory of consent does not have to “dissolve” fidelity into a promise – there may also be non-culpable conditions for obedience – but it must explain why it should depend on it. Three types of arguments were popular. First, there are good reasons for wanting a conscious control of responsibility for legal obligations. In political authority, where the stakes are as high as they come, the power to give and refuse consent fulfills a function of ultimate protection beyond what we might expect from the fallible institutions of limited government. Second, consent allows people to build political loyalties by creating new political societies or joining existing ones, without waiting for the gradual emergence of community ties and reciprocity; Consent is an immediate passport to “perfect membership” in a Commonwealth. (Locke: § 119). Third, although consent is defined by its performative character, it is naturally accompanied by complementary non-performative characteristics: consent also expresses acceptance, or at least approval, of the government.
This may mark approval leaders as important among a number of potential competitors, and it may indicate that they have a good chance of being effective, which in itself is a necessary condition for justifying any political authority. It is interesting to note that this presentation assumes that one can say what the authority requires, whether or not the requirement is justified on the merits. Richard Friedman argues that “if there is no way of knowing whether a statement is authoritative other than by evaluating its content to see whether it merits acceptance as such, then the distinction between an authoritative statement and a rational advice or belief will have collapsed” (Friedman 1973, 132). Such an idea is developed by Raz in one of the main arguments in favor of the “source thesis”, the idea that an adequate test of the existence and content of law must be based solely on social facts and not on moral arguments. (See the entry on legal positivism.) The subjects of authority “can benefit from its decisions only if they can verify their existence and content in a way that does not depend on raising the same issues that the authority must regulate” (Raz 1994, 219). If the law aims to settle disputes on moral issues, then the law must be identifiable without resolving the same disputes. The law is thus exhausted by its sources (such as legislative decrees, court decisions and customs, as well as local conventions of interpretation). This type of reasoning has been generalized (cf.
Shapiro 1998), but also criticized. It is unclear what kind of limitation the idea that it should not include “the same subjects” represents – perhaps if morality is a necessary condition, there could be moral tests of authority that leave the relevant dependent reasons intact (Coleman 2001, 126-7). And while law does serve as a blueprint for controlling and evaluating behavior, it can also have other functions, such as educating its subjects about right and wrong, and this may serve poorly the attitude that rules must in part be followed because they are rules (Walukhov 1994). If their content does not take into account the stringency of the obligations, what happens then? A historically important theory, although now largely outdated, explained it in relation to penalties. Following Hobbes and Bentham, the English jurist John Austin says that a legal obligation means to submit, do or abstain from a sovereign order, where an order requires an expression of will, as well as an associated risk, however small, of suffering an evil for non-compliance.