Debate: Legitimate injustice: A response to Wellman

In his article, “The Space between Justice and Legitimacy”, Kit Wellman offers a novel account of the relationship between political philosophy's two central concepts.1 He argues that states can be legitimate yet impose many unjust laws and policies. This is true, he suggests, because political legitimacy should be understood as a claim about wide proportionality.2 Just as a country's war can be widely proportionate overall, and yet contain many instances of injustice, states can be proportionate (that is, legitimate) overall, yet contain a fair amount of injustice. But although Wellman thinks legitimate injustice is, in this sense, a real and pervasive phenomenon, he goes on to argue that legitimacy doesn't have much practical relevance with regard to unjust laws and policies. It doesn't make it permissible to impose and enforce unjust laws, nor does it generate an obligation to comply with unjust laws.

Like Wellman, I think legitimate injustice is real and pervasive. But I don't share his view of this phenomenon and, as a result, I also don't agree with him about the practical implications of legitimate injustice. Contra Wellman, I think state officials can act permissibly when they enforce unjust but legitimate law, and I think they have claim rights against being interfered with when they do so.

Before we begin, it will help to clarify what's at stake in labeling a state legitimate. There are many competing conceptions of political legitimacy in the literature, but, as Wellman says, “virtually everyone agrees that legitimacy at least entitles a state to coerce its constituents”.3 Following Wellman, I will assume this is, at a minimum, what's at stake in determining whether a state is legitimate. Other things being equal, a legitimate political authority is presumptively permitted to coerce its constituents in at least some ways that illegitimate authorities are not permitted to do.

Wellman believes legitimate states can act unjustly, and he defends this view by appeal to a particular notion of proportionality. Just as it can be morally permissible to launch a war even when we can foresee that some of our troops will commit unjust crimes during its course, a state can be legitimate even though we know it sometimes commits injustice. In both cases, we weigh the good things that will be achieved if we proceed against all the harms or costs that will be caused. Provided the goods are sufficiently great to outweigh the harms or costs, the proposed course of action or the institution can be defended on the basis that the benefits are proportionate relative to the costs.4 As Wellman puts it, “Because states perform such incredibly valuable functions … they are worth at least some moral costs”.5 This is, on Wellman's view, simply what it is for a state to be legitimate. When the benefits the state provides are proportionate relative to the costs (including the injustices the state commits), the state is morally legitimate.

This is an innovative way of thinking about the relationship between justice and political legitimacy. But I do not think it can be correct. In the ethics of self-defense and war, the standard way to determine whether some act is proportionate is to weigh the costs and benefits that will be caused by our action against the alternative of doing nothing.6 Suppose the only way to defend one innocent person from having her legs unjustly broken is by throwing a grenade that will kill two innocent bystanders. The act of throwing the grenade is not proportionate, because the costs of doing so (two innocent people are killed) are much worse than the alternative of doing nothing (one innocent person's legs get broken). If, however, these costs were reversed—if doing nothing meant two innocent people get killed, whereas throwing the grenade meant only one innocent person's legs get broken—then we might conclude throwing the grenade is proportionate.

If we are to use wide proportionality to assess a state's legitimacy, we need to engage in a similar comparison. The difficulty, however, is that the state is unlike a harmful act that we contemplate performing, and so it's less clear what it might mean to ask, “are the costs created by the state proportionate relative to the alternative of doing nothing?”. How should we understand the benchmark of “doing nothing”?

But this doesn't look like a good test. First, it's not clear what we are supposed to imagine occurs if the government or the state is dismantled. Maybe we should consider what would realistically occur in this particular country if its government or state apparatus suddenly ceased to exist. In many cases, what would occur might be terrible. In some places, civil war or ethnic cleansing might be the consequence of suddenly dismantling a government. In these cases, we would not be morally required to disband the government even if it were very, very bad. Even a brutal authoritarian regime might be preferable to civil war or ethnic cleansing, but surely that does not make a brutal authoritarian regime morally legitimate; it does not give that regime the moral permission to coerce its citizens to do things that they are not independently required to do. A regime is not morally legitimate merely because it is preferable to some of the worst conditions on earth.8

One problem with trying to conceptualize political legitimacy as a species of proportionality is that we almost never face a binary choice between our current political institutions as they are or else the total absence of those political institutions. Consider the Southern United States during the Jim Crow era. If the only two options were (1) retain the existing racist laws and institutions, or (2) a descent into an extremely dangerous form of anarchy, it's at least possible that option (1) might be widely proportionate relative to the benchmark of (2). But, of course, those weren't the only two options. Radically reforming the existing laws and institutions to make them less racist and unjust was a feasible option, and the very fact that it was a feasible option is surely part of the explanation as to why the racist political institutions might not have been morally legitimate.

But Wellman's statement here is puzzling for two reasons. First, this isn't how proportionality has standardly been conceptualized in the ethics of self-defense and war. As I've already explained, proportionality judgments are typically made by comparing a given act of harm-imposition relative to the benchmark of doing nothing. The entire set of feasible alternatives, however, is relevant with regard to a different moral judgment, namely, necessity. Philosophers working on self-defense and war typically claim that for an instance of harm-imposition to be morally permissible it must meet the condition of being necessary. Although there is a great deal of disagreement about how exactly to conceptualize the necessity condition, there is widespread agreement that judgments of necessity are made by comparing the potential act of harm-imposition to all the feasible alternatives.10 Killing a wrongful aggressor, for example, is not necessary if one of the defender's feasible alternatives is painlessly rendering the aggressor unconscious. Thus, although it's a matter of some dispute, on the most widely accepted picture, wide proportionality and necessity are two separate constraints on the permissible use of force. To be morally permissible, it's generally believed a harmful act must, among other things, satisfy both these constraints.

This test isn't helpful if we seek to explain how any existing state could ever be legitimate. It's surely true that every existing state has at least some unjust laws or unjust institutions which could be reformed to eliminate the injustice without becoming more unjust in other ways. It's thus true that, for every existing state, the status quo is not proportionate relative to a feasible alternative, and thus every existing state is illegitimate. The problem is even more stark, since this view has the implication that even hypothetical states that are far more just than any existing state would still be illegitimate so long as they contain even a single unjust law or institution that could feasibly be reformed. I think it's clear that these are not the conclusions Wellman seeks to defend.

Wellman might reply that it's not feasible for a state to be entirely devoid of unjust laws or institutions; realistically, our best efforts to design and sustain political institutions will always contain some unjust features. But this reply involves shifting from the standard of “feasible” to the standard of “probable” or “likely”. Although the term feasible is contested,11 I suspect it's most commonly used to refer to whether achieving a given outcome is possible given our resources and technological limitations. In this sense, changing the laws regulating gun ownership in the US is clearly feasible. Of course, it is extremely unlikely that robust gun control legislation will be enacted in the US for reasons of ideology and political self-interest.

Suppose, then, we take All Alternatives to refer only to those alternatives that are sufficiently likely to obtain. This would then vastly lower the bar for legitimacy. Even highly unjust states can be legitimate so long as it is sufficiently unlikely that they will become more just.

The problem with this interpretation, however, is fairly obvious. It's often the case that laws or institutions are unlikely to be reformed because those who hold power don't want to reform them. It might, for example, be very unlikely that we can reform the unjust institutions in a country because the country is ruled by a tyrant who refuses to relinquish power and rules by violently suppressing dissent. On this interpretation, the tyrant can render his rule legitimate by forming a settled disposition to hang on to power through unjust means. I take this result to be a reductio of the proposed interpretation of the proportionality test.

In sum, I don't see how the idea of wide proportionality can be made to work as an account of political legitimacy. One test for proportionality that Wellman seems to suggest—Dismantle—is far too weak a standard. It's too weak, in part, because it ignores the fact that we never face a binary choice between the status quo and dismantling the state. We always have many other feasible alternatives, which include reforming the unjust laws and institutions of our state. But the other test that Wellman floats—All Alternatives—creates either an unacceptably high standard or an unacceptably low one. If we focus on all feasible alternatives, then the bar for legitimacy is far too high—no existing state meets it and no hypothetical state with even a single unjust law meets it. But if we focus on likely or probable alternatives, then the bar is too low: very bad actors can render themselves legitimate by refusing to meet minimal moral standards they could meet if they wanted to.

In each case Wellman argues that the answer is “no”. So, although legitimate states act unjustly, the fact that these injustices are perpetrated by legitimate states doesn't have many interesting practical consequences for the unjust laws the state attempts to impose. The state's legitimacy doesn't give it a special permission to act unjustly, it doesn't ground a duty to obey unjust laws, and it doesn't give the state a protected right to act unjustly.

I disagree with Wellman on all three questions, but here I will focus only on the first. I think we should expect there to be a great deal of reasonable disagreement about justice. By that I mean that smart, sensible people, thinking clearly, who aren't driven by self-interest or prejudice, and who are committed to trying to treat others fairly, can and will disagree about many matters of justice, including difficult questions such as “What rates of income tax are required as a matter of justice?” or “Should freedom of expression extend to protect those who deny the Holocaust in order to promote anti-Semitism?”. But the fact that such people will disagree about the requirements of justice doesn't imply that there are no correct answers to these questions or that the answers are indeterminate—there may sometimes be correct answers in cases of reasonable disagreement.

I also think that in cases of reasonable disagreement about what justice requires, a legitimate state should have some sort of democratic process to resolve the reasonable disagreement. Indeed, I think people have a claim of justice to an equal (and positive) say in resolving reasonable disagreements about justice. To disregard democratic decisions whenever one thinks they are unjust is a refusal to participate on equal terms in the political process with other reasonable people. To be clear: I'm not suggesting that unreasonable views about justice—those that are, in some sense, beyond the pale, such as the violations of core liberal rights and freedoms—have a claim to be implemented if selected by a democratic process. I'm only suggesting that some disagreements about justice are reasonable—all the competing views represent plausible interpretations of what justice requires—and that in disagreements of this type, there is a claim of justice to have an egalitarian democratic process for resolving the disagreements.

Obviously, what I've just said is only the briefest sketch, and many details need to be filled in. But here is one way in which the view that I have sketched is inconsistent with Wellman's answers to the three questions above, in particular the first question: do legitimate states act permissibly when they act unjustly? Suppose, for the sake of argument, that the correct theory of justice includes a very expansive principle of free speech, one that provides a protected claim right against interference to people who engage in hate speech—for example, Nazis who wish to march and chant anti-Semitic slurs in Jewish neighborhoods. But the issue is one over which reasonable people disagree, and after a fair democratic process, our political community enacts a law that prohibits certain forms of hate speech, including the Nazis' anti-Semitic march.

I think justice requires giving people equal opportunity to exercise political power in cases of reasonable disagreement. If the government doesn't do what it has been directed to do by a fair democratic process (within the boundaries of the reasonable), it will be acting unjustly—failing to respect what justice requires regarding the distribution of political power. So if state officials decline to enforce the prohibition against the Nazis' march, they will be acting unjustly. However, if the state officials enforce the democratically enacted law prohibiting the march, they act contrary to the principle of free speech, another requirement of justice. So the state will act unjustly whatever it does. If we assume that at least one option from an agent's feasible set must be permissible, then it must be possible for the state to act permissibly and yet unjustly.

I'm not sure which premises of this argument Wellman would reject. He might reject P1, but denying it is implausible. It's not credible to suppose that all our disagreements about justice are driven by self-interest, prejudice, or irrationality. I also do not think it is plausible to suppose, as some contemporary Kantians do, that almost all substantive issues of social or distributive justice are largely indeterminate.14 I am sure that many specific questions about the requirements of justice are indeterminate, but this fact is perfectly consistent with P1. P1 makes only the very modest claim that reasonable disagreement is possible even when there are determinate answers about the requirements of justice.

This statement could be taken as a rejection of P2, though Wellman is not explicitly considering P2, so we should tread carefully. In one sense, Wellman is surely correct. The mere fact that reasonable people disagree about whether Φ-ing is permissible surely does not, on its own, affect the deontic status of Φ-ing. But the argument that I've given doesn't move from the mere fact of disagreement to permissibility. Instead it claims that reasonable disagreements about justice require, as a matter of justice, some fair democratic mechanism of resolution. It then moves from this claim to a claim about the permissibility of injustice, via the assumption (P4) that at least one option from an agent's set must be permissible. My argument thus provides the answer to Wellman's rhetorical question: the beliefs of the majority might have this moral power because justice requires a democratic resolution of some of our reasonable disagreements.

In this passage Wellman points out something that egalitarian democrats sometimes ignore—the mere fact that there is something valuable about democratic procedures does not suffice, on its own, to show that the scope of the right to democratic governance extends to cover substantively unjust decisions.

But the idea that claims of justice operate as side-constraints is notoriously tricky. Most obviously, what happens when two claims of justice conflict? Some proponents of the side-constraint view argue that this is conceptually impossible. Claims of justice, by their very nature, can never come into conflict.18 But this is very difficult to accept; it is sharply at odds with commonsense morality. This view requires either (a) that the content of justice be extremely sparse, so as to eliminate the possibility of conflicts arising, or else (b) a kind of specificationism about justice, such that whenever we have an apparent conflict of claims, we must conclude that in those specific circumstances, only one of the claims turns out to be a valid claim of justice. I think there are compelling reasons to reject both of these options, though I lack the space to lay those out here.

It's also worth noting that Wellman doesn't give us any reasons to doubt that claims of justice might sometimes conflict—he just asserts the side-constraint view. But if we accept the commonsense view that claims of justice can sometimes conflict, then we can easily accept P2. And it's worth emphasizing how revisionary and counterintuitive it would be to deny P2. To deny P2 would mean that there need be nothing unjust about stuffing ballot boxes or suppressing other people's votes, provided doing so is a way of ensuring that only truly just policies are enacted.

P3 seems uncontroversial if P2 has been accepted. P4 is not uncontroversial: a minority of philosophers claims that in some situations an agent will act wrongly regardless of what she does. Entering this debate is beyond the scope of this article, so I'll simply say that, along with many others, I think P4 is true: there must be a permissible option in an agent's set of choices.19 And P5 does not seem controversial if P1 is accepted.

And so I disagree with Wellman: I think a legitimate state and its officials can sometimes act permissibly even though they act unjustly. I also disagree with Wellman about the second and third questions, but I won't pursue those disagreements here.

The phenomenon of legitimate injustice is deeply puzzling, and I share the skepticism that Wellman expresses about the capacity of some recent work in political philosophy to provide an adequate account of this phenomenon. But we can't, I have argued, understand legitimate injustice as an instance of harms that are proportionate in light of all the good consequences that a state delivers.

We should instead understand legitimate injustice as something that arises as a result of the complex and multi-dimensional nature of justice itself. There are principles of justice that apply to the distribution of political power in cases of reasonable disagreement. When these principles conflict with other substantive principles of justice, the phenomenon of legitimate injustice arises. This is because, in such situations, the state and its officials cannot avoid injustice. This fact, contra Wellman, has significant practical implications for permissible conduct in politics. On my view, unlike Wellman's, the moral legitimacy of a law does real practical work—it can render permissible conduct that would otherwise be impermissible, and it can explain why public officials have claim rights against interference even in some cases where they threaten to infringe claims of justice.

Nothing I've said here constitutes an argument for the view that a principle of justice concerning the distribution of political power should ever take precedence over more substantive claims of justice. I do think this view is correct, but this isn't the place to present that argument.

For comments and discussion, I am very grateful to Peter de Marneffe, Rebecca Stone, Paul Weithman, Kit Wellman, Leif Wenar, and an anonymous referee.

None relevant.

There are no potential conflicts of interest relevant to this article.

All relevant data are included in the article.

The author declares human ethics approval was not needed for this study.