Rights, respect, and the duty to obey the law

Abstract

I aim in this paper to give a new account of “political obligation,” the moral duty to obey the law. What the law requires of us often coincides with the content of widely accepted moral duties. In such cases, it may seem obvious that there is a duty to obey. If we accept a moral duty not to assault others, for example, it may seem obvious that there is a moral duty to obey a law that prohibits assault. But while there may be, in such cases, a duty to act as the law happens to command, it does not follow that there is a duty to obey the law—to do as the law commands for the reason that the law commands it.¹ The question I am concerned with is not: “Do we have a moral duty to do what the law tells us to do?”, but rather: “Does the fact that the law tells us to do something generate a moral duty to do it?” I will argue that it does—in certain kinds of states. I'll defend the claim that citizens of democratic states have a pro tanto moral duty to obey their laws, except for those laws which violate people's basic rights.

I am going to offer a natural duty account which does not invoke the standard argument. Views that rely on that argument are subject to a serious objection I'll call the objection from the sufficiency of partial or selective compliance.⁶ A satisfactory account of political obligation must establish a general moral presumption in favor of obedience.⁷ The problem for the standard argument is that not many laws play a role in enabling states to perform morally essential tasks. Consider laws which regulate fishing, require people to report found treasure, or establish protections for historical monuments—a state's ability to rescue people from the state of nature or maintain justice would not be undermined if these laws were generally disobeyed (i.e., not complied with). That is, premise (2) of the standard argument is false: Maintaining the state's stability and ability to perform morally essential functions does not require widespread compliance with very many of its laws; widespread compliance with a small subset of its laws would suffice. As such, the conclusion of the standard argument doesn't follow. At best, the standard argument establishes only a duty to comply with a small subset of laws, namely those laws general compliance with which is necessary for the state's ability to administer justice or rescue people from the state of nature; we are off the moral hook for compliance with the vast majority of laws. That is to say, according to the standard argument, the laws with respect to which there is a pro tanto duty to obey are exceptions; the argument fails to establish anything like a moral presumption in favor of obedience.⁸ The distinctive natural duty account I offer overcomes this limitation by invoking the moral significance of the fact that a state is democratic. My account has a further important virtue: It is immune to the so-called “particularity objection” which claims that natural duty theories cannot establish a particularized moral bond to specially obey the laws of one's own state.

I begin with the following claim: Justice intrinsically requires not merely that we establish and maintain political society, but that we establish and maintain a particular kind of political society—one in which every person is accorded an equal democratic say. I do not argue for the claim in this paper; my argument assumes it. That is, my argument assumes that there is a moral right to an equal democratic say—that every adult member of a political society has a right to run for political office and vote for representatives, and so via such democratic decision-making procedures, determine the content of the laws and policies to which she is subject.⁹ This assumption will be resisted by those (like epistocrats¹⁰ and lottocrats¹¹) who oppose democracy and even by some who defend it—democratic instrumentalists¹² think democracy is all things considered the form of government that should be instituted, but deny that there is a right to a democratic say. I do not have space to defend the assumption here.¹³ However, it is an assumption that is widely held as a core moral conviction, having indeed some claim to being an article of contemporary commonsense morality as well as a foundational commitment of political movements across the globe—when disenfranchised people demand the vote, they demand it as a matter of right. What I aim to establish here is that if there is such a right, the duty to respect it grounds a general duty upon the citizens of democratic states to obey their laws.

My argument is novel, but I should note that I am not the first natural duty theorist to attempt the broader strategy of drawing a connection between democracy and political obligation; a number of philosophers have offered such democratic natural duty accounts in recent years.¹⁴ But whereas on my view the pro tanto wrongness of disobeying the law in democratic states is a matter of failing to fully respect others' democratic rights, extant democratic accounts characterize that pro tanto wrongness in terms of an unjustified use of power. For instance, Thomas Christiano (2012) and Scott J. Shapiro (2002) claim that a person who fails to obey laws in a democracy acts like a “dictator” in relation to others. Such a person supposedly arrogates to himself the power to “disrupt the democratically chosen arrangements”¹⁵ (Christiano, 2012). But as A. John Simmons observes, this is an exaggeration at best: most people who fail to abide by the law can hardly be said to “dictate” to others the terms of interaction or meaningfully “disrupt” democratically chosen arrangements. As Simmons puts it, “[t]hey typically can be no more than nuisances; and they need not even be that” (Simmons, 2013, 346).

Daniel Viehoff's (2014) democratic account faces a similar issue. While Viehoff does not explicitly say that someone who violates laws in a democracy acts like a dictator, he does claim that such a person violates an ideal of mutual nonsubjection according to which fellow citizens ought not subject one another to “unequal power.” We endorse this ideal for many private relationships, including friendship. Suppose that A and B are friends and A has many more friends than B does. In this case, says Viehoff, A has more “social power” than B in the sense that she could better cope with the loss of their friendship than B could. As such, she could leverage this fact to get B to agree to spend their time together in ways that she prefers (say by threatening to end the friendship if B does not agree to her terms of interaction). We think A would be wrong to flex her power over B in this way. Similarly, says Viehoff, it would be wrong to wield unequal power over our fellow citizens in setting terms of interaction with one another (Viehoff, 2014, 356).

I think Viehoff is correct about this, and I agree that the ideal of nonsubjection furnishes a compelling reason to favor democracy over alternatives for settling the content of coercively enforced laws and policies. However, I deny that this egalitarian ideal can ground political obligation, as Viehoff thinks it does. Recall that to have a political obligation is to have a pro tanto duty to obey the law. Any account of political obligation must therefore explain the pro tanto moral wrongness of disobeying the law. An account grounded in an ideal of nonsubjection cannot accomplish this because failing to obey the law need not involve subjecting anyone to unequal power.

Consider Viehoff's own example. Suppose I am legally bound to abide by democratically determined tax code C but choose to pay taxes in accordance with C*, a tax code identical to C but which grants “an exemption for a class of which I am the only member.” Viehoff says that when I pay in accordance with C* rather than C, I “single-handedly (or perhaps at most with the help, or rather forbearance, of my tax inspector) move us from C to C*” (Viehoff, 2014, 367). This somewhat exaggerated way of characterizing what a tax cheat does is rhetorically crucial to making Viehoff's account seem plausible. To say that a tax cheat moves us from one tax code to another makes it seem like he is subjecting us to some great power. But surely tax cheats do not subject others to any power insofar as they cheat on their taxes. At any rate, they do not subject others to unequal power. It is true that some tax cheats have more power than others to get away with cheating on their taxes (say because they can afford a clever, unscrupulous accountant). And perhaps it is morally worse to attempt to get away with breaking the law if you employ means that you know are not available to all. But that is beside the point. What an account of political obligation must explain is the pro tanto moral wrongness of disobeying the law—not the pro tanto moral wrongness of attempting to get away with one's disobedience in a way one knows is not available to all. In the tax cheat case, what we need is an explanation of the pro tanto moral wrongness of failing to pay what one legally owes (of failing to pay in accordance with C)—not any pro tanto moral wrongness there may be in getting away with not paying. And anyone can disobey the law by failing to pay what they legally owe. Anyone can falsify their tax forms or not pay their balance owing, and so forth—if this is an exercise of power, it is a power everybody has, including those who do not have the means to get away with it. The tax cheat does not subject his fellows to unequal power insofar as he cheats on his taxes.

A tax cheat does not arrogate power to himself as a dictator does, nor does he violate an egalitarian ideal which requires us to refrain from subjecting others to unequal power. These appeals to power just miss the mark. We need a different account of how democracy grounds political obligation. That is what I offer here. But I want to stress that even if defenders of extant natural duty accounts are able to fend off the objections I have raised and succeed in establishing political obligation, that would not lessen the significance of my project. In that case, let my account be a comrade-in-arms. Our duty to obey the law might be overdetermined, and there is no reason why theories that find a hearing first should preclude a hearing for those that come later.

Here's my proposal: If there is a moral right to a democratic say, and thus, to the democratic decision-making process which is constitutive of according all such a say, then this process has a special status. It is not just any old procedure, nor even merely the most efficient or effective or practically salient procedure—it is a procedure to which people have a moral right. Everyone has a duty to respect the rights of others, and so everyone has a duty to respect this right. I'll argue that fully respecting one's fellow citizens' right to a democratic procedure requires that one obey the laws which are the outcome of that procedure.¹⁶

I start by giving an analysis of what is to violate a right. I go on to argue that respect for a right requires more than simply refraining from violating it. I will then argue that our duty to respect our fellow citizens' right to an equal democratic say implies a pro tanto duty to obey the law. Finally, I will defend my view against objections.

Why think that obedience is necessary to respect the right to a democratic decision-making process? What does obedience have to do with respect? I draw on Stephen Darwall's seminal notion of “recognition respect” for a thing as “a disposition to weigh appropriately in one's deliberations some feature of the thing … and to act accordingly.”¹⁷ In Darwall's terms, respect for a right “consists in giving appropriate consideration or recognition (to the right) in deliberating about what to do,” and acting accordingly (Darwall, 1977, 38). We can see what “appropriate consideration” for a right requires, by looking at cases in which we think it is missing—cases in which we think a right has been disrespected.¹⁸

Many familiar cases of disrespect for rights involve what are commonly referred to as “violations”: A person shoots and kills another person, violating her right to life; a man uses threats of violence to keep another in servitude, violating his right to liberty; a state institutes a substantial fine for religious gatherings, violating observant citizens' right to worship as they choose. We violate a right insofar as we: (1) prevent or stop the bearer from enjoying or achieving a good to which she has a right or performing an activity she has a right to perform, or, at any rate, (2) interfere with or impede her access to that good or ability to perform the activity by attaching significant burdens to or placing significant obstacles in the way of that access or performance. When we violate a right in either of these ways, we disrespect it. That is, respect—“appropriate consideration”—for a right requires that we refrain from violating it in either of these ways.

The claim I now want to press is this: “Appropriate consideration” for a right may require more than merely refraining from violating it. That is, even if one does not violate a right in either of the above ways—even if one does nothing to prevent the bearer from exercising a right or accessing the good to which she has a right, even if one does not attach significant burdens to or place significant obstacles in the way of that exercise or access—one may still disrespect or fail to respect the right.¹⁹ Genuine respect may require something more of us—that we acknowledge further constraints on our actions, and indeed that we acknowledge an imperative to act or extend our own efforts in certain ways.²⁰

To support the claim, I offer the following cases. In each, an agent falls short of adequately respecting a right even though she does not straightforwardly violate it. (I take each of the cases as sufficient by itself to establish the point that a person may disrespect a right without violating it, and so strictly speaking, I could make do with any one of them. However, readers may have different intuitions about the cases, perhaps disagreeing with my assessment of one or other of them, and so I offer a variety.)

1. Drunk driver: Consider a person who gets drunk and drives but is lucky enough not to hit anyone. Since she does not actually kill or injure anybody, she does not violate anybody's right to life or bodily integrity—she does not prevent or interfere with the enjoyment of goods to which there is a right. But the defect in her conduct can only be understood in relation to those rights, as a failure to respect her fellow road users' rights to life and bodily integrity. The disrespect consists in the fact that she does not attend to those rights, or at any rate give them sufficient weight in her practical deliberations—she treats them with a flippant disregard. Her fellow road users have a moral complaint against her which has to do not with their rights being actually undermined or interfered with, but rather with the stance she evinces towards them, her lack of care and concern.

2. Polluter: Or, consider a person who dumps his household garbage in the local lake. The lake is large enough that the garbage of one family makes no appreciable difference in the water quality. So, this polluter does not exactly violate anyone's right to clean drinking water or a clean environment—he does not prevent anyone from enjoying these goods or place significant obstacles or burdens in the way of that enjoyment. He does, however, seem to fail to respect that right.

In the drunk driving case, the agent willfully engages in behavior that significantly increases the likelihood that others will be deprived of goods to which they have a right.²¹ By stipulation, this is not so in the polluter case. The next two cases have different features still. But in these cases too, though we might not say that the agent violates a right, we nevertheless think he falls short of adequately respecting it.

3. Maid: Consider a man whose live-in maid has school-going children. He won't let the family keep the lights on in their shared room in the evenings—something which would enable the kids to study longer hours—even though he could easily afford the small increase in his electricity bill. He tells the children he doesn't see the point of their going to school when they're going to end up as domestic servants anyway. He chuckles when he sees them reading their school books, shaking his head and rolling his eyes. He does not, however, actually prevent the children from going to school. Nor is his behavior vicious or sustained enough (or felt by the kids acutely enough) to count as a significant impediment to their accessing the good of an education or engaging in the activities that would advance their education.²² So, he does not violate their right to an education. Yet he surely does not respect that right.²³ What would it be for this man to truly respect those children's right to an education? It doesn't seem enough that he not prevent or interfere with their schooling. He must also regard their right as giving him a reason to facilitate their access to the good of an education, at least where he can do so at little cost to himself—respect seems to require that he let them keep the lights on.²⁴ Respect also plausibly requires that he refrain from gratuitous behavior (such as eye-rolling) which can be reasonably expected to make it uncomfortable for them to pursue a good to which they have a right.

4. Breastfeeding employee: Finally, consider a college administrator whose adjunct employee is nursing. He meets his legal obligation to provide her with a space in which to nurse her child and pump breast milk. But he assigns her a room that is next door to a lounge which is frequented by students, many of whom are in her classes. The students are loud and while the noise does not prevent her from being able to pump, it is annoying. Besides this, the situation is somewhat awkward. She has to walk past the lounge, carrying her pumping apparatus. She feels self-conscious and would prefer to maintain a certain professional distance and demeanor with her students. After some hesitation, she mentions her discomfort to the administrator and asks if she could have one of the vacant, more secluded rooms on the fifth floor instead. He turns down her request, citing the inconvenience: he'd have to arrange to have the old photocopier moved out, he'd have to get a new key made for her. The administrator does not prevent his employee from exercising her right to continue breastfeeding her child (or to provide her child with breast milk) nor does he interfere with it by imposing significant obstacles or burdens—he does not for instance threaten to fire her or forbid her from storing bottles of expressed milk in the common fridge. He does not strictly violate the right.²⁵ Yet, he does not seem to respect it. In being unwilling to bear the small burden of making a more suitable room available to her, by refusing his cooperation in making it possible for her to exercise her right comfortably, without embarrassment, he expresses his low valuation of the right. He thus does not give it its due significance. Genuine respect would seem to require that he regard it as worth his own positive effort to secure her better conditions, that he be willing to extend himself to that end, given how little it would cost him.

I'm not sure I can give a general account of what it is to disrespect a right; I'm not sure there is a general account to give. The cases I have described show that we may fail to evince genuine respect for a right even when we do not materially interfere with someone's ability to exercise it or otherwise violate it, but they illustrate the difficulty of extrapolating from cases to some general theoretical account of what makes an act disrespectful of a right. In each case, the right is disrespected in a different way, the behavior counts as disrespectful of the right involved for a different reason. What respect requires will depend on the particular right in question. Recall that respect for a right requires that we give appropriate consideration to the right in deliberating about what to do, and act accordingly. What appropriate consideration comes to varies from right to right, and so one can fail to respect a right in a number of different ways. One way is by altogether failing to attend to the right in one's deliberations like the person who chooses to drive while drunk. Another way is to convey one's disdain for a right by refusing to bear a minor burden in service of promoting another person's access to the good to which she has the right, like the man in the maid case. Yet another way is to willfully engage in behavior that can be reasonably expected to make it uncomfortable for a person to exercise the right—again, like the man in the maid case. Or one might express one's low valuation of a right by refusing to make a small, low-cost effort to help another person exercise the right comfortably, like the man with the breastfeeding employee.

That said, there is a commonality in these cases. (I'm hesitant to proclaim that my statement of this commonality amounts to a true general account of what it is to respect a right. Thankfully, I don't need such a general account for my argument to succeed.) The commonality is this: In each, an agent behaves as though it is a matter of little importance, and in any case, none of his concern, whether or under what conditions others are able to exercise a right or enjoy the goods that a right protects or is meant to furnish. Insofar as one evinces such indifference to a right, one does not respond appropriately to its significance. It is not enough to recognize the rights of others as constraints or restrictions. Respect involves a willingness to help facilitate others' exercise of their rights—a willingness to expend one's own efforts in service of this end—at least when one can do so at a low cost to oneself.

In light of these observations, let us turn to the right to a democratic say. We tend to think of this right as a right held against the state—that is, as requiring certain actions and forbearances of the state, and as such, as a right which when disrespected, is disrespected by the state.²⁶ Certainly, states can and do disrespect this right in various ways. When such disrespect makes the news, it usually involves violations. States violate the right by, inter alia: formally disenfranchising citizens; requiring ID that members of certain groups are unlikely to have despite there being other reliable ways of verifying voters' identity; cutting the number of staff, machines, or polling stations in a neighborhood, thereby increasing the time people have to spend in line-ups and thus the burden they must bear in lost wages in order to vote; and so on. But the right to a democratic say is also held against individuals—it places demands on individuals, and may be disrespected by individuals. Individuals violate this right when they prevent others from voting (or prevent their vote from counting by destroying or ignoring their ballots), or interfere with others' exercise of the right by harassing or intimidating them at a poll booth or deliberately misinforming them about the method by which or location at which they must register their vote. Respect for democratic rights requires of both states and individuals that they refrain from violating them in these and other ways. But it also requires more. It may require for instance that both states and individuals do their best to communicate or at least not block access to information that is relevant to making an informed choice (e.g., information that would demonstrate a candidate's unfitness to hold political office). I am going to argue that part of what respect for the right to a democratic say requires of individual citizens of democratic states is that they abide by the laws which are the outputs of the procedure which is constitutive of according that right to all. Such obedience is partly constitutive of appropriately valuing their fellow citizens' right to a democratic say.

Here are two arguments for the claim that obedience is normally necessary to respect one's fellow citizens' right to a democratic decision-making process:

Argument 1: Suppose I say, “I recognize your right to a democratic say. I won't interfere with it. Let's vote.” Then, your candidate wins and mine loses or what you vote for passes while what I vote for does not. And then I say, “Well, there you go, you've voted. That's all you get. That's all I owed you—to allow you to vote unmolested. Now—please excuse me—I'm just going to go ahead and break the laws which have resulted from you and my other fellow citizens exercising the right to a say. Let the state sanction me. (It'll have to catch me out first—I'll take my chances!) But I reject these laws you've foisted upon me; I'll do as I please.” I do not violate your right to a democratic say by my disobedience: I don't prevent you from voting, I don't interfere with your exercise of your right. Nevertheless, you seem to have a moral complaint against me. What is the nature of this moral complaint? What might my fellow citizens justifiably object to in my behavior?

It seems to have to do with a faulty stance towards them. I acknowledge that they have the right to a democratic say. But the point of exercising the right to a say is not merely to record or register one's preference, to “have one's say,” so to speak, disconnected from any practical consequence. One is voting, not participating in a survey or consultation. Democratic activity is aimed at certain practical consequences. The point of exercising the right to a say is that the process which it partly constitutes can be expected to settle the selection of representatives and the content of laws, and thereby determine how things go in society. Thus, disobedience has an expressive significance. Insofar as I disobey my democratic state's laws, I normally declare myself unwilling to lend my own efforts toward bringing about the end for the sake of which the right is exercised, the end which gives meaning to its exercise, namely establishing the terms of interaction in society. Here again is the attitude we saw in the cases I described earlier—the shrug, the stance that says: “What have your rights to do with me?” I treat my fellows' right to a democratic say as a thing removed from my concerns; I am unwilling to extend myself for its sake. I might accord it a formal recognition, but I express indifference as to whether its exercise is meaningful. I thereby fail to accord the right its due significance; by failing to lend my own efforts toward the end in virtue of which the right to a democratic say has its value, I fail to respect it.²⁷

Argument 2: Here, for good measure, is a second argument. Consider a—purely hypothetical—case in which a presidential candidate loses a free and fair election whose integrity he has no grounds to question. Despite having no evidence or good faith belief that the election is rigged, he and his supporters publicly refuse to accept the result and concede the election. What we want to say is that in refusing to accept its outcome with respect to which candidate assumes political office, they are failing to respect the democratic process. But now notice that when a citizen of a democratic state disobeys its laws, she does the same thing: she too refuses to accept or honor the outcome of the democratic process.²⁸ She thereby fails to respect the process—fails to give it its due significance. In failing to give the process that is constitutive of according others the right to a democratic say its due significance, she fails to respect their right to a democratic say. Respecting their right to a say involves being willing to constrain herself in accordance with the laws which result from exercising that right.

Because all of a democratic state's laws are the product of a decision-making process to which one's fellow citizens have a right, the act of disobeying any of these laws takes on a significance it would not otherwise have. To disobey a law passed by democratic procedures is normally to manifest a significant kind of disrespect for one's fellow citizens' rights, and so, to wrong them. It follows that citizens of a democratic state have a presumptive duty to obey its laws (a duty grounded in a duty to respect others' rights),²⁹ even those laws which do not contribute to the state's ability to perform morally essential tasks. Laws which issue from a democratic process, a process that is itself intrinsically required by justice, have authority.³⁰

Unlike natural duty accounts which rely on the standard argument, my view is not vulnerable to the objection from the sufficiency of partial or selective compliance. I turn now to defend my account against four further objections to which it might seem vulnerable. In responding to these objections, I will flesh out the view more fully.

The first of these objections is specific to my account. I claim that disobedience involves disrespecting one's fellow citizens' democratic rights. This claim may simply appear implausible in many cases. This is because disrespect may seem to require the intention to disrespect. If that's true, whether a person who disobeys a law is disrespectful would depend on her mental state. But consider someone who withholds a found article, thereby disobeying her democratic state's treasure law. According to my view, this person disrespects her fellow citizens' democratic rights by her disobedience. But of course people who keep treasure, even when they knowingly flout the law in doing so, do not usually have any intention to disrespect others' democratic rights by that behavior—their behavior is not directed at others at all. As such, it may seem, they do not disrespect others' democratic rights in disobeying the treasure law.

But one needn't intend to disrespect someone in order to in fact disrespect them by acting a certain way. A man might not intend to disrespect his female colleagues at a faculty meeting by offering up the opinion that women are formed to be mothers, their proper sphere the home, or that women are not as good at abstract reasoning as men. On the contrary, he might sincerely believe himself deeply respectful of women (he positively venerates women as wives and mothers). Nonetheless, he disrespects his colleagues in expressing those opinions; he fails to treat them appropriately.³¹ Similarly, the fact that a person “means no disrespect” for others' democratic rights in disobeying some law does not insulate her from the charge of disrespect; one needn't intend to disrespect others' rights in order to in fact disrespect those rights.

I turn now to the particularity objection that Simmons (1979, 31–35; 2005, 166–170) famously levels against all natural duty theories. Simmons argues that the folk conception of a political obligation is of a moral requirement that is “particularized” to one's own state. One is supposed to have a special duty to obey the laws of one's own state of citizenship, not a duty promiscuously to obey the laws of all states or of all states of a given kind (e.g., those that are just or democratic). Thus, a theory of political obligation needs to explain how moral bonds with this character arise. However, Simmons argues, a natural duty cannot bind one specially to support and comply with one particular state over others. If our duty to obey the law derives from the natural duty to support just institutions, for example, it would seem that we are bound equally to obey the laws of any and all just states. As such, natural duty theories cannot explain what we want to explain, this being a particularized moral bond which binds individuals specially with respect to their own state. Simmons considers this to be an insuperable objection to natural duty accounts.³²

Let us articulate the objection more carefully. It is fairly uncontroversial that we have some moral duty or obligation towards the just institutions and laws of foreign countries. For example, most people think that there is an obligation to comply with the just laws of a country one is visiting.³³ Further, as Jeremy Waldron notes, most people would accept that everyone has a duty not to undermine just institutions wherever these may be located, even ones to which we bear no significant connection. For example, we think it would be wrong for a rich playboy to attempt to corrupt the judiciary of a foreign country. So it is no objection to natural duty accounts that they imply as much (Waldron, 1993, 9–11).

That said, believers in political obligation do standardly think that the moral duty towards one's own state is distinctive in the following ways: (1) A Canadian citizen at home in Canada only has a moral duty to obey Canadian laws; she has no moral duty at all to obey (as distinct simply from a duty to refrain from undermining), say, Swedish tax laws. Even if Swedish laws purported to legally bind Canadians wherever they are (explicitly specifying that their scope extends to Canadians), Canadians outside Sweden would not be morally bound by their tentacles. Indeed, not only are Canadians in Canada morally permitted to ignore Swedish laws, they are morally required to refrain from obeying them insofar as they conflict with what their own country's laws dictate. (2) The relationship between a citizen and her country's laws is thought to be sticky. As Wellman (Wellman & Simmons 2005, 47) notes, most people think a Canadian who travels to Australia continues to have a moral duty to pay her Canadian taxes even if she lives in Australia for an extended period of time. In contrast, though a Canadian might acquire the additional moral obligation to comply with Australia's or Sweden's laws while she visits or resides there, we think she is released from that obligation once she leaves.³⁴ There is thought to be a “special relationship between (travellers and) expatriates … and their territorially distant states” (Wellman & Simmons, 2005, 47).³⁵

If, as Simmons contends, natural duty accounts imply, contra (1), that Canadians at home in Canada are morally bound to consult and abide by Sweden's laws, that seems to be a problem. And it may seem that my account does imply precisely this. After all, Sweden's laws are no less the product of a democratic process than Canadian laws, and Swedish citizens' democratic rights are no less worthy of respect than Canadians' democratic rights. So just as on my account a Canadian's duty to respect her fellow Canadians' democratic rights entails that she has a pro tanto moral duty to obey Canadian laws, so her duty to respect Swedes' democratic rights would seem likewise to entail that she has a pro tanto moral duty to obey Swedish laws—even if she is not in Sweden.

However, my account does not imply that Canadians outside Sweden have a duty to obey Swedish laws. Let me explain. At the start of this paper, I made a plausible and widely accepted assumption: There is a moral right to a democratic say. I now make a second plausible (egalitarian) assumption about the limits of that right: I assume that the moral right to a democratic say does not encompass a right to dictate the terms of interaction between people who are not likewise accorded a say by the polity in question. Every adult member of a political society only has a right to a say in determining the content of the laws and policies to which she and others who likewise have the same say are subject. To put it differently, the right to a democratic say is held only with respect to a given community, namely the community of all those who are likewise granted a say in that particular democratic process. And, of course, Canadians are not accorded a say in the Swedish democratic process. Swedes do not have a right to dictate the content of laws to which Canadians are subject via a democratic process in which Canadians are not permitted to participate. Swedes have a right only to a say in determining the content of laws to which Swedes—that is, all those who are granted a say in the Swedish democratic process—are subject. As such, a Canadian going about her business in Canada who disobeys Swedish laws does not thereby disrespect any democratic right that Swedish citizens have to begin with. (To be sure, like everyone else, she is morally bound to respect the democratic rights of Swedes, but that duty of respect does not entail any moral duty to obey Swedish laws.) Thus, (unless she does something such as enter Sweden to incur a special—e.g., consent-based—obligation vis-à-vis Swedish laws), a Canadian does not have a pro tanto moral duty to obey Swedish laws.³⁶ As such, my view accommodates the first widely held intuition about particularity.

One might worry that this response goes too far.³⁷ If having a pro tanto duty to obey the law is conditional upon having a say in their content, then it may seem that current members of democratic states have no pro tanto duty to obey any laws passed by previous generations. It may seem that the relationship between present-day Canadians and the Canadian laws passed before they were born is the same as that between present-day Canadians and the laws of Sweden.

Here, we need to distinguish between two senses in which one can have a say with respect to the content of laws. While it is true that present-day Canadians did not have a say in determining the content of laws passed before their time in the sense that they did not author the laws, they do have a say with respect to the content of those laws in the sense that they can change or repeal them by exercising their democratic rights. As such, earlier generations of Canadians did not dictate the terms of interaction between present-day Canadians in any way that would undermine the latter's political obligations. Present-day Canadians have a democratic say with respect to both laws passed before their time and new laws they author together; all of these laws are under their democratic control.³⁸ This makes the case disanalogous from that of Swedes passing laws which purport to apply to Canadians.

My view can also accommodate the second widely held particularity-related intuition about stickiness: A Canadian's fellow Canadians do have the right to a say in determining the content of laws to which she (as a holder of the same say in the Canadian democratic process) is subject. As such, she normally disrespects their democratic rights insofar as she fails to pay her Canadian taxes, even when she is in Australia. (Her duty to respect other Canadians' democratic rights entails a pro tanto moral duty to obey Canadian non-resident tax laws even when she is in Australia.)

In short, the natural duty account I have sketched in this paper does not run afoul of the particularity objection. It preserves the distinction we want between what Canadians owe with respect to Canadian laws and what they owe with respect to the laws of other democratic states.³⁹

I now turn to an objection that Simmons has raised against extant accounts that connect political obligation and democracy. He asks us to imagine that the United States unilaterally appropriates some Mexican territory. Having done so, it “commences to effectively and fairly administer justice in this new territory and extends full US citizenship rights to all of the (former Mexican) residents of the territory … How should we understand the moral position of these newly minted US citizens.⁴⁰ Are they bound to support and comply with the (laws) of the United States, just as we take native-born US citizens to be …?” (Simmons, 2013, 340–341). Simmons argues that “Kantian theories of democratic authority” imply that these people are so bound, and that this implication constitutes a reductio of these accounts.

Simmons' case does not present a problem for my account. I agree with him that such annexed residents would not be all things considered morally bound to obey the democratically produced laws of the United States. On my view, these enfranchised victims of the annexation do have a pro tanto duty to obey the law (the ground of the duty is present), but this pro tanto duty is easily overridden in the circumstances. (I have offered a ground of political obligation. But certain historical circumstances may defeat the pro tanto duty to obey when it comes to certain groups or individuals, as they handily do in this case.) This is no defect in my view. Compare promising: There are cases in which a promise generates a pro tanto obligation which is, however, overridden by other factors. Suppose a woman is in an abusive relationship with her partner. Early in that relationship, she promises to help him pay his debts at a future date. Even though the relationship is already abusive at this point, the promise itself is freely given—it is not coerced. Over the next few months, she comes to recognize the nature of her relationship, and tells him that she is no longer willing to help pay his debts. He says, “But you promised.” She says, “Given the way you have treated me, I owe you nothing.” She is surely correct. All things considered, she is not morally required to help him pay his debts. What is going on here is that she has a pro tanto promissory obligation to help him with his debts (the ground of such obligations, i.e., a freely given promise, is present), but this pro tanto obligation is defeated by other factors. This case illustrates that promising is not sufficient for there to be an all things considered “ought” to do that which was promised, no matter the circumstance. But we do not conclude from this fact that promises are not generally a source of pro tanto obligations. Likewise, we should not conclude from the fact that there are circumstances in which the duty to respect others' right to a democratic say does not suffice for an all things considered “ought” to obey the law, that it is not generally a source of pro tanto political obligation.⁴¹ To ask more of a theory of political obligation would be to ask more than an account of any special obligation or natural duty could bear.⁴²

A final worry is one that any account of political obligation must answer: Some states are deeply unjust. Moreover, virtually all legal systems (even of states which are on balance reasonably just) contain some unjust laws (laws which perpetuate an unjust state of affairs, treat people unfairly, ask us to act unjustly). If an account of political obligation implies that we ought to obey in these circumstances, that may seem grounds for rejecting it.

Let us distinguish between the following types of case. What my view implies depends on the category:

1. Deeply unjust, nondemocratic state: First, consider the laws of a deeply unjust, nondemocratic state (such as a slave state, apartheid state, or dictatorship). On my view, there is only a pro tanto duty to obey the law in states which accord all their members an equal democratic say. A slave state does not do this, and so its laws do not issue from a process that demands our respect. On my view, then, there is no question of political obligations to states which authorize slavery—there is no pro tanto duty to obey their laws, even those laws which are not themselves unjust. Of course, one might be all things considered morally required to act in accordance with some laws in such a state, say because noncompliance would result in some terrible consequence. One might be all things considered morally required to act in accordance with a law that one should drive on the left side of the road, for instance. But this follows from the duty to refrain from wantonly endangering others' lives; it has nothing to do with political obligation. None of the laws of a deeply unjust, nondemocratic state have authority, whether they are unjust or just. (Nor for that matter do the laws of a nondemocratic state which is otherwise reasonably just have authority.)

Before I proceed to the next case, let me address a worry.⁴³ I have just said that there is no pro tanto duty to obey the law in non-democratic states—but there is no shortage of non-democratic states. Don't defenders of political obligation aim to offer an account that applies generally? A standardly accepted criterion of adequacy for an account of political obligation is that “it be reasonably general in its application, that is, that it entail that most (or at least many) citizens in most (or many) states are politically bound” (Simmons, 1979, 55).⁴⁴ Let me note, first of all, that my view satisfies this generality criterion under current conditions, as it is certainly true that many states are democratic.⁴⁵ Still, this hasn't always been the case, and it may not be in future. The fact that many states are democratic is a contingent matter and could well change. So it is worth noting this: While political obligation theorists tend to distinguish themselves from philosophical anarchists in holding that the generality criterion is satisfied (i.e., that most or many people have political obligations), there is also a tradition (exemplified by reformist consent theorists) of trying to show not that the generality condition is satisfied in the status quo, but rather that there is an open, feasible route to satisfying it. And note that even if the world were to backslide into non-democracy, there would be a route to achieving democracy again, and with it, to securing widespread political obligations. That is good enough for me, as I think it should be for anyone. It would be an unreasonable condition of adequacy that a theory of political obligation imply that most people have political obligations under all possible political circumstances.

2. Deeply unjust, democratic state: Now consider a state which accords all an equal democratic say, but is for other reasons deeply unjust—for example, a state which routinely violates basic liberties. On my view, there is a pro tanto moral duty to obey the laws of such a state, since they issue from a democratic process (unless those laws themselves violate basic rights—see (3) below). However, there is another moral duty in play which pushes us the other way: Widespread routine compliance with such a state's laws (even those laws which are not themselves unjust) can reasonably be expected to entrench its ability to perpetuate injustice.⁴⁶ We have a natural duty to oppose injustice when it is not too costly to do so. The natural duty of justice would therefore plausibly demand that people generally not comply with the laws of a deeply unjust state (even a democratic one), even those laws which are not themselves unjust, if they can manage this without incurring serious costs to themselves. This other duty plausibly defeats or overrides the pro tanto duty to obey the law in a deeply unjust, democratic state, so one will not generally be all things considered morally required to obey even laws which are themselves not unjust in such a state. (Of course, as with the traffic law above, other moral considerations might be relevant: one might be all things considered morally required to act in accordance with some laws in a deeply unjust democratic state because the costs of noncompliance to others would be too high.)

4. Reasonably just, democratic state; tolerably unjust laws: Finally, consider the case in which a democratic and otherwise reasonably just state passes a law which is unjust, but not egregiously unjust. Suppose, for example, that justice requires a progressive income tax, but a state passes a law imposing a flat tax on all. Though unjust, under certain circumstances this law might not be egregiously unjust. Provided that the poorest citizens of this state are able to afford a decent standard of living after paying the tax, the injustice of the law is not so extreme that it suffices to render the state which countenances it unjust (that the state qualifies as unjust in virtue of imposing it).⁴⁷

On my view, a citizen of a democratic and otherwise reasonably just state has a pro tanto duty to obey its tolerably unjust laws (not merely its just laws). Moreover, the natural duty of justice would not direct otherwise with respect to laws that are merely tolerably unjust, so a citizen will normally be all things considered morally required to obey such laws. So, my view does have the implication that there is a pro tanto duty, and even that one is all things considered morally required, to obey some unjust laws, namely those unjust laws of reasonably just, democratic states that fall within the bounds of tolerable injustice. But this is hardly an unpalatable implication of the sort that poses a reason to reject the view.

There may be some epistemically difficult cases: Some laws may be such that a person will struggle to determine whether they are tolerably or egregiously unjust.⁴⁸ But what I'm offering here is an objective account of political obligation: Whether one has a pro tanto duty to obey or not turns on the fact of the matter about whether the law in question is egregiously unjust, not on one's beliefs about or ability to determine its status. (Many plausible normative theories make use of distinctions that are vague or otherwise make for epistemically difficult cases. Consider the view that only sentient creatures have moral status or the view that beneficence can demand no more than “moderate” sacrifices from those in a position to help needy strangers.) That said, it is a virtue in a normative theory that it be action-guiding. My view does no worse than most other normative views by this metric. If a person in a democratic state regularly encounters laws about which there is a reasonable question as to whether they are egregiously unjust or merely tolerably unjust (if such epistemically difficult cases are common), then this person is arguably living not in a reasonably just state, but rather in a deeply unjust one, and what I say about deeply unjust democratic states (case 2) will apply—that is, though she has a pro tanto duty to obey, she will not generally be all things considered morally required to obey. If, on the other hand, she is living in a reasonably just democratic state, then such epistemically difficult cases will be rare, so even if my view does not offer practical guidance in those cases, it will be generally action-guiding. On my view, a person living in a reasonably just democratic state should generally obey the law, save for those cases in which she is struck by the seeming extreme injustice of a law. In that case, she has some thinking to do.

I can now state my view more fully: The citizens of a state which accords all an equal democratic say have a pro tanto moral duty to obey its laws, except for those laws which violate people's basic rights. This duty is grounded in the natural duty to respect one's fellow citizens' democratic rights. Fully respecting one's fellow citizens' right to a democratic say requires that one obey the laws which are the outcome of the procedure which is constitutive of according that right to all.

The authors declare no conflicts of interest.