Obeying The Law: A Voluntary Obligation
Shahrazad A Meerza
In its lay-understanding, “obligation” automatically indicates the absence of wilful conduct, whereas when something is “voluntary”, a wave of relief washes over because there is an option of opting out. However as lawyers, jurists and academics, there is always an intricate scope to what seems to be a straightforward notion. This article will be examining how our obligation to obey the law is inevitably voluntarist and how no plausible theory for finding an obligation to obey the law can avoid voluntarism. This will be assessed in light of Fair Play theory as well as considerations of philosophical anarchism, in reference to the writings of jurists: A John Simmons, John Rawls, Robert Nozick and Richard Dagger.
First, it is essential to highlight the fundamentals of voluntarism and Fair-Play theory: Voluntarism in its general understanding is an individual’s participation as a result of free will and voluntary action. What seems to be a straightforward notion has posed various difficulties to the jurisprudential theories that show an obligation to obey the law. In regards to an obligation to obey the law, A John Simmons explains that a theory of political “obligation” is voluntarist because it “is simply a moral requirement that arises from the performance of a voluntary act”. The jurisprudential Consent Theory suffers the most from voluntarism, which is evidently seen in how one of the conditions of consent is that it must be given voluntarily. This is an evident problem because in application, those who are obeying the law “voluntarily” have not actually given their consent, nor given the chance to provide such consent.
Fair-play theory entails that alongside promises and deliberate consent, the acceptance of benefits that arise as a result of a community’s cooperative schemes generate the rights and obligations to obey the law. While the theory has not been specifically defined by British philosopher H.L.A Hart, American political philosopher A John Simmons explains that the theory had been implied, explaining that a beneficiary has an obligation to do their ‘fair share’ by submitting to the rules when required and those who have previously cooperated to the rules have a right to the “fair distribution of of the burdens of submission”.
American moral and political philosopher John Rawls’ established conditions for generating a fair-play obligation to obey the law: The first condition is that there must be an active scheme of social cooperation, and that this “scheme” must be mutually beneficial and just. The second being the restriction of one’s liberty in order to ensure effective cooperation under said scheme, the third and final condition is that the benefits of the scheme may be received in at least some cases by someone who does not cooperate when their turn comes, which is also known as the ‘ free riding problem’.
Here is where the controversy starts: The distinction between mere benefaction and positive acceptance is the essence of finding our obligation to obey the law because only the latter is sufficient in finding said obligation. The difference between mere benefaction and positive acceptance in fair-play theory is crucial because the latter is one of the evident ways in which voluntarism is a problem in finding an obligation. The difference between the two is that the individual must have already wanted the benefit, has made some sort of effort to obtain the benefit, or at least not attempted to avoid the benefit. Therefore, only if the benefits have been voluntarily accepted, can the principle of fair-play work.
Individuals obeying the law under fair-play theory, can only have such an obligation if they have voluntarily accepted the receipt of the benefits obtained from others’ obeying of the law. This stance is accepted and supported in the writings of American philosopher, Robert Nozick.
Additionally, voluntarism is unavoidable in fair-play theory in terms of determining the extent of distribution of benefit. Nozick states that the benefits received should be the result of “at the very least….the benefits to a person from the actions of others are greater than the cost of him doing his share”. Moreover, Simmons explains the importance of not confusing ‘doing one’s part’ with ‘doing an equal share’ because ‘doing one’s part’ is proportionate to the extent of the benefit received.
This is important considering that realistically: an individual’s contribution is dependent on their capabilities and free will, therefore people contribute to different extents. This can be seen in the fact that individuals base the extent of their cooperation within a system based on the extent of the benefits they receive. Not everyone receives the same benefit, therefore not everyone feels the need to fully cooperate. An individual that has benefitted very little, is not bound to cooperate at the same level as someone who has benefitted very much. Taking the voluntary acceptance of benefits in consideration, this is because an individual has chosen to positively accept specific benefits, and because they have chosen to accept those particular benefits from the “sea” of benefits, they are bound to cooperate to the extent that would give them those benefits, exactly and only.
Mere association or membership within a scheme is not sufficient to amount to ‘insider’ status, therefore an individual must seek positive action to become an insider. This poses a problem for the successful operation for fair-play theory because it suggests that only through an individual’s voluntary action amounting to consent, can the principle successfully bind its “insiders”.
On the other hand, Simmons provides a counter argument that the principle of fair-play does not necessarily fall into the principle consent, because alongside those who have consented to being bound, those who have accepted the benefits from the scheme, without directly expressing consent, are also bound, thus reinforcing fair-play theory’s essence. Simmons’ example for this is how free riders have not expressly consented to being bound by the principle. Which as previously stated, do not implicate the operation of the theory.
Simmons continues to provide that the lack of a voluntary element in this particular argument implicates fair-play theory’s application, however removing the “acceptance” element of the theory’s application would result in the theory falling into a theory of consent. While this angle does not particularly show another voluntarism problem in the theory, Simmons’ “dropped into” analysis will be the basis for our counter argument, which will now be discussed.
Simmons explains that individuals are “dropped into” a political scheme. The scheme has benefits that individuals choose whether or not to accept based on their attitudes and feelings towards those benefits. This could be seen as another problem posed by voluntarism, however Simmons explains that having certain attitudes towards the benefits an individual may receive is not realistic. He explains that realistically, most citizens fall into either “those who have not “accepted” because they have not taken the benefits (with accompanying burdens) willingly, and those who have not “accepted” because they do not regard the benefits of government as the products of a cooperative scheme”.
On the contrary, American professor Richard Dagger provides his approval of the theory even after affirming that there is in fact a difference between mere receipt of benefits and positive acceptance of benefits. He also explains the problem with the ‘acceptance’ element of the theory, considering that realistically, most citizens merely receive benefits. It has been previously discussed that the root of the voluntarism problem in fair-play theory comes from the fact that only positive acceptance of the benefits can generate an obligation to obey the law under fair-play theory, and that such positive action, undoubtedly, must be voluntary. Dagger explains that emphasising the importance of the distinction between mere receipt and positive acceptance is difficult and limits the applicability of fair-play theory in a political context, he refers to this as “the limiting argument”.
Additionally, Dagger also provides different strategies responding to the limiting argument, however the most significant is both an agreement with and criticism of Simmons. He is in agreement with Simmons in regards to the argument we last clarified, through stating that “the typical citizen of a body politic qua cooperative enterprise does not voluntarily accept the benefits of the political order”. However the criticism is that individuals do not voluntarily accept these benefits because they “grow into” a political community and are not “dropped into” it, contrary to what Simmons has suggested.
This is the closest approach to reality because while the cooperative system we are born into is not something we have specifically chosen to be a part of, it is not foreign to us, unlike Simmons’ approach. We are able to live and grow because of the benefits that the cooperative system provides for us, which are able to be given to us as a result of others’ cooperation. As infants and those of young age, these benefits are merely received, however as an individual grows older, they become more aware of the cooperative system’s operation and thus seek to take advantage of the benefits provided, as well as contribute.
Dagger asserts this through explaining that individuals grow into membership in a system, the same way they grow into the exercise of autonomy and capacity of choice, which can only be achieved with the assistance of others, who have formed, continue to form and reform the practices and institutions. Therefore by fairness and reciprocity, not voluntary acceptance or action, those individuals are who the obligation to obey the law under fair-play theory is owed to.
Philosophical anarchism has frequently been considered as an attempt to overcome voluntarism. While it is brought forward as a solution to the problem, its essence is entirely focused on voluntarism. Simmons explains that philosophical anarchists retain the voluntarist theory of obligation and disregard the belief that existing governments have de jure authority over citizens.Voluntarism is used as a double edged knife in this context considering that the lack of truly voluntary consent to being bound by authority is the reason philosophical anarchists exercise their voluntariness to choose to not be bound.
Similar to fair-play theory, anarchism also faces the problem of ‘free-riders’. Simmons explains that one of the main benefits a government provides is protection of the citizens’ interest from any threats an “independent” may pose. The benefits provided to citizens can be denied to independents in various ways, however independents still receive those benefits, either by voluntarily going out of their way to receive those benefits, or merely “spillover benefits” from the obeying of others, that would not pose an additional cost to paying members. Therefore proposing anarchism as a solution to the problem of voluntarism is inadequate, because voluntarism is unavoidable, even by a theory that does not acknowledge an obligation to obey the law.
In conclusion, the question to be asked now is: Can our obligation to obey the law only exist if voluntarism is present? The answer is No. Per Simmons, membership within a society is only genuinely voluntary, if there is an option of non-membership. In reality this is false because the option of immigration and those who become naturalised citizens, does not make membership voluntary for remaining citizens. Therefore it is evident that the ties between political authority and obligation, render political obligation as largely voluntarist.
This is due to the fact that no plausible theory for our obligation to obey the law can successfully avoid the problem posed by voluntarism because ultimately, it is the tie between political authority and finding an obligation to obey the law. Even if founded on the principle of fairness, voluntarism is still prevalent, which can be seen in how Fair-Play theory tremendously suffers from voluntarism due to the fact that it is present in several areas within its essence, such as the requirement of positive acceptance, which leads to determining the extent of the distribution of benefit. In contrast, certain theorists provide that voluntarism can be successfully avoided, as seen in Dagger’s bringing forward the argument of “growing into”, and Simmons’ stating that philosophical anarchism is an evident solution to the problem. Despite this, voluntarism is still an unavoidable problem because it is deeply rooted within finding an obligation to obey the law, which can clearly be seen in how the free-riding problem is an ongoing predicament within fair-play, and even philosophical anarchism- a theory that does not support the existence of an obligation to obey the law.
Dagger R, ‘Civic Virtues: Rights, Citizenship, and Republican Liberalism’(Oxford University Press 1997)
Nozick R, ’ Anarchy, State, and Utopia’ (Blackwell: Oxford 1974)
Simmons A J , ‘Tacit Consent and Political Obligation’ (1976) 5 Philosophy & Public Affairs 274
Simmons A J , ‘The Principle of Fair Play’ (1979) 8 Philosophy and Public Affairs 307
Simmons A J , ‘Voluntarism and Political Associations’ (1981) 60 VLR 19