Great changes in the character and interrelations of western political societies were in progress during the sixteenth and seventeenth centuries. Early modern philosophers either directly witnessed these changes or were able to reflect upon them from no great distance, as crucial elements of their recent political history. Unsurprisingly, then, early modern political philosophy was in important respects preoccupied with the theoretical underpinnings of the emerging political order, with its new institutions and new expectations of citizens and public officials. The theories advanced by political philosophers of the period in turn played their own modest roles in influencing the development of the modern political institutions with which we are familiar today. Their questions and problems were thus importantly related to our own, which allows early modern political philosophy to speak to many of us in a way that is perhaps not fully possible for the political philosophies of earlier periods.
I will stress here two great “divides” or transitions within the period that can help us to understand some of the most salient features of early modern political philosophy. The first of these divides is the theoretical divide between what we can call “political naturalism” and “political antinaturalism.” The second is the historical transition (mirrored by a corresponding transition in political theories) from political societies that existed as complex, hierarchical structures of overlapping religious and contractual relationships (such as those that characterized empire and the feudal order) to political societies that began to take the form of modern, sovereign, territorial states.
The Basic Argument
The failure of Transactional and Associative theories to explain the source of a general duty to obey domestic law pushes us to explore other possibilities. In particular, since the moral duty to obey seems to many a relatively basic, natural, nonvoluntary feature of social life, it seems initially promising to suppose that the moral principle that accounts for this duty belongs to that group of principles that specifies our natural moral duties. Natural Duty theories of the duty to obey the law, as we have seen, are those that ground our duty to obey not in who we are (as in Associative accounts) or in what we've done or enjoyed (as in Transactional accounts), but rather either (a) in the moral importance of advancing some impartial moral good or (b) in some moral duty thought to be owed by all persons to all others as moral equals, regardless of roles, relationships, or transactions. Thus, the natural duty in question, from which the duty to obey is to be derived, could be a consequentialist moral duty to promote or maximize the occurrence of some good property or state of affairs – such as happiness (utility, preference satisfaction, etc.), moral perfection, or justice.
Even if there is a general moral duty to obey the just laws of a legitimate regime, it remains an open question how one should respond when confronted with either an unjust law or an illegitimate regime. The answer to this question will in many cases be quite complicated. At a minimum, though, I contend that there is a general obligation to obey neither unjust laws nor any law of an illegitimate regime. More ambitiously, I submit that there are potentially weighty moral reasons to actively resist unjust laws and illegitimate regimes.
In developing my argument for the duty to obey the law, I have been assuming throughout that the laws in particular were just and that the regimes in general were legitimate. In this section, I want to explore whether we are similarly obligated to obey the legal commands of an illegitimate regime. I will advance a number of theses, but the two most basic are that (1) there is no general duty to comply with the laws of an illegitimate regime, and (2) there are actually moral reasons to resist illegitimate governments.
Here I will restrict my discussion to two countries: Iraq under Saddam Hussein, which I will assume was an illegitimate military dictatorship, and apartheid South Africa, which I understand to have been an illegitimate regime that wrongly oppressed blacks.
I have discussed the principal variants of Natural Duty theories of the duty to obey the law that are being defended by contemporary political and legal philosophers/theorists. But the influence of this family of theories in fact appears to extend well beyond the self-proclaimed family members. Many theories of the duty to obey that are presented by their defenders in Associative or Transactional language seem in actuality to rest more heavily on Natural Duty foundations. Let me note here just two prominent recent examples of this tendency. The best-known recent defense of an (allegedly) Associative account of the duty to obey – namely, Dworkin's – appears to justify its support for the moral force of Associative ties precisely by appealing (non-Associatively) to a “natural duty” that we have “to honor our responsibilities under social practices that define groups and attach special responsibilities to membership.” Similarly, George Klosko's prominent recent defense of a fairness theory of obligatory obedience (which purports to be a Transactional reciprocation theory [to use my classifications]) seems actually to be far less concerned with fairness, properly understood, than with the needs of those who depend on the public goods states provide. It is the value or importance of these public goods (their “presumptive” status) – and some unacknowledged natural duty to help make them generally available in our society – that seems to ground required obedience in Klosko's theory, not (as should be the case if fairness is really the issue) our acceptance of benefits, our free participation in a genuinely cooperative scheme, or the ways in which refusal to obey would take advantage of others.
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