How Is Government "Special?"

Mark LeBar,

Release Date
April 25, 2011


Role of Government

Philosophy professor Mark LeBar asks some thought-provoking questions: How is government special? Why can government morally obligate people to do things, when ordinary people can’t? Why does the government claim to have not only power, but authority? Why do we consider some government authority more legitimate than others?
Two common arguments are that legitimate government authority is derived through democracy, or through the consent of the governed. But LeBar argues that both of these positions are problematic, and explains why.
In conclusion, LeBar notes that we have to ask these questions, because in asking ourselves how we think government is or isn’t morally special, we can gain insight into what the limits of government authority should be.

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How Is Government “Special?”
Hi. I am Mark LeBar from Ohio University, and today we’re going to talk about how government is special. And I begin by explaining what I mean by the question, how government is special. There’s two ways in particular that I want to suggest to you that government is special, and I’m going to discuss those two ways. And then we’re going to consider explanations for how it might be that government is special in that way or in those ways. Because the kind of ways a government is special, I think, require an explanation. And our inquiry, hopefully, will lead us to think a little bit more about why government might be special in the ways that we’ll talk about.
Okay, the first of the two ways in which government is special: Normally when someone tells us what to do that doesn’t morally obligate us to do it. If I tell you that you must do something, that’s meaningless. I’m just a guy, you’re just somebody else, I can’t say something and thereby make you obligated to do what I say under normal circumstances. But it’s different when it comes to government.
We are obligated when government tells us to do something. When government passes a law or imposes a requirement on us, government thereby makes us obligated to do what it says, in a way that’s unlike the way that you and I can morally obligate each other. Then the question is why that would be. How is it that government can do that but we can’t in our ordinary interactions which each other?
Now, there’s one explanation that comes to mind many times when we’re thinking about government, as to why this might be. And that is that government has the power to punish us. So if we don’t do what government requires that we do, it can do various nasty things to us. It can put us in jail. It can use the full extent of the law to punish us in other ways. But that can’t be the whole story. Why not?
Well think about the difference between a mugger, somebody who comes up, holds a knife to your throat, and says your money or your life. Think about the contrast between a mugger who does that and someone who’s loaned you money and now comes back and says, Hey! You agreed to pay me back. I need the money. It’s time for you to repay. We’ve got the mugger and we have a lender, both of whom are demanding money from you. Now the mugger will punish you if you don’t turn over the money. That’s what the knife is for. Or at the very least the mugger threatens to do that. But that doesn’t mean that you’re morally obligated to do what the mugger asks you to do or tells you to do. It might be foolish of you not to, but there’s no moral obligation to do what the mugger says. And if some wayyou can escape without either giving the mugger the money or suffering the punishment, you are free to do so. You have no obligation to obey the command of the mugger.
But, intuitively, at least, that’s different in the case where someone has lent you money and you’ve promised to repay it. Now if the lender comes to you and says, I need you to pay me back my money, you do have a moral obligation. So both the mugger and the lender are requiring of you, they’re telling you that you must give them money. But only in one of those cases is a moral obligation. And that moral obligation does not coincide with the power to punish you for not doing what you’re being told to do.
So, we can’t just think that the government’s ability to obligate us to do what it tells us to do comes simply from its capacity to punish us if we don’t. That would make the government out to be just like the mugger. But the way that government works, it claims to be like the lender of the money, not the mugger. That is, it’s not just the case that it has the power to punish you for not doing what it tells you to do, but it says you ought to do it, you morally ought to do it. You have a moral obligation to do it just as you have a moral obligation to repay the lender who comes back to you and says, I need you to repay your loan.
We’ll call this government’s claim to authority. So authority is something different from power. Nobody claims that government doesn’t have power. Of course the mugger, who’s got a knife and  is holding it up to your throat, the mugger’s got power, too, but that power isn’t hooked up with the capacity to give you a moral obligation to perform in the way that the mugger is asking you to perform. There’s something more than just power to authority. And conversely, the person who lends you the money has the authority to obligate you, has the authority to make it the case that you morally ought to give them back their money, even though they lack any power to do so. So power and authority are two different things, and we want to be sure that we don’t confuse them. So this first way that we’re thinking of government as being special is that it’s got this authority. It can induce an obligation in you to do what it says just by telling you that it’s something you must do.
So now the question is, one question, anyway, is, what makes the government special that it can create this kind of moral obligation just by telling you to do something? You and I can’t do that with each other. The mugger can’t do that. Government can. How is that? That’s one question about the specialness of government that we want to consider.
The second one is, it’s not unrelated, it’s connected but I think it’s distinct, and that is, that comes from the fact that what government does, it does characteristically by means that if anyone deployed those, we would have strong moral objections to what they are doing. What do I mean by that? Well, government characteristically undertakes and does what it does by threatening to use force on those who don’t go along with what it requires. If you or I did that, we would have a serious problem. The government threatens to put you in jail if you disobey the law. It can fine you, that is, it can require that you pay over some of your property or money. It can seize your property, it can just simply take it away from you. And in fact, in the extreme case, it can condemn you to death. Government can take your life from you if you don’t do what it requires of you. Those are serious moral wrongs if anyone but government does them.
If I threatened to do that to you, you wouldn’t say, okay, fine, I’ll go right along with you. You’d say, wait a second. Where do you get off claiming the authority to do those things to me? And in fact, you would claim that you would have the right to defend yourself against my using force on you in those ways. And you’d think, I’m justified in resisting somebody else wanting to do one of those things to me just because I don’t do what they asked me to do. This is government’s coercive power, right. It claims that it may use force in these ways and be morally justified in doing so.
So the question now is, what is it that explains government’s special nature? How is it that government, but no other human institutions, have the authority to  morally obligate you and may use coercive force to tell you what to do? That’s what I’m after now is an explanation of that. What we’re going to do is look at a couple of explanations that may seem very natural to us as ways of understanding government’s special nature. Then I’m going to argue that though they seem natural to us, they’re not entirely satisfactory. We probably need to press little bit further.
So the first of these is the idea that somehow government is special when and because it’s democratic. This answer might be especially attractive if we think there’s a difference, say, between the government of North Korea and the government of the UK, something like that. And one hallmark is that the government in the UK is democratic, the government of North Korea is not. And that that fact somehow tracks the idea that what the government of the UK does is legitimate, morally justified, appropriate in some way, not in everything but most things, whereas the government from North Korea is illegitimate, lacks authority, it’s sort of a brute despotism or something like that. So we might think democracy is catching an important difference between those kinds of governments, and the fact that it’s democratic is what explains the special nature of government when government is democratic. That’s one answer we’re going to look at.
The other is another idea that presumably will resonate with most of you, and that is that government is special in these ways because we consent to it, because we agree that government does have or ought to have this kind of special status. So both of these are answers that I think resonate with most of us. I’m going to now argue that they are both problematic in various ways.
So let’s start with the idea that it’s democracy itself that somehow confers a special standing on government. The idea here, and there might be a couple of different versions of the thought that democracy is what does the wonderful thing here. Somehow it might be thought that democracy itself confers special moral powers on government; it’s the fact that it’s democratically structured that does this. Or, and this is not entirely distinct, it might be the thought that in democracies, unlike other forms of government, we impose laws on ourselves that makes government special. Government is sort of a collector for things that we are going to do to ourselves. And, of course, I may object to something that you do to me in a way that’s not appropriate if I am doing it to myself. So if what government is doing, if its special features are thought to be something that I am imposing on myself, that might be another way that through democracy government comes to be special. So I want to explore those thoughts a little bit.
Start with the second one first. The idea that in democracies we impose laws on ourselves. That’s an idea that so far as I can see doesn’t have very much going for it. And so I want to challenge you to think about this. Think about the idea that the explanation for the authority of government is that the laws that it imposes are really laws that you’re imposing on yourself. And to get at that idea, I invite you to think about your favorite stupid law. There is no shortage of stupid laws.
For myself, I think maybe something like the conjunction of prohibition on marijuana consumption in conjunction with the legal consumption of alcohol. I think, that combination is insane. You might think that either marijuana and alcohol both should be illegal. I don’t think that’d be a great idea, but at least that makes some kind of sense. Or you might think, they both should be legal, which to me makes much more sense. But if you think that one is going to be legal and one is going to be illegal, it ought to be the dangerous, addictive, destructive drug that’s illegal, not the one that’s, by any standard, much more benign. Instead, we have the dangerous drug legal, the benign drug illegal. I think that’s crazy. If you don’t like that example, and lots of people won’t, think about your own. All right? There’s very few people that think everything the government imposes on us makes sense. So pick your own example of a case where government imposes a law that you think, that’s just nuts. And now ask yourself how plausible is it to think, I impose this law upon myself.
I think that’s not very likely. I think that’s actually pretty implausible. We kind of do that, I think, only if we’re really desperate for a story about how those laws come to be authoritative in the ways that they are. Maybe you might say, well, all right, I didn’t write the law, but I choose to live here. And when I choose to live here, right, that’s the sense in which I am imposing a law on myself. If I didn’t, I wouldn’t be subject to it. But I’m the one who’s making the law bind on me, because I choose to live here. That way of thinking about things says that it’s not really the laws being imposed on ourselves; it’s something about the democratic structure that’s doing the work. It’s the fact that it’s a democracy that means that when I live here, I’m imposing laws on myself. If in fact that story is true at all.
So let’s turn back and look a little bit more at the idea that it’s the democratic structure itself which is doing the work. So now the question is, how could democracy confer authority and coercive power on government? How could that be possible?
Democracy is, technically and strictly speaking, the name for a decision procedure. It’s a name for a convention that the majority will decide for a given group or given body. It’s majority rule, the rule of the many over the few. That’s what democracy is. So if democracy is going to have this special power to make government special, then somehow it must be the case that majorities have some kind of power to confer the kind of special qualities to government that we’ve seen that government has. Is there really any reason to think that majorities are morally special?
I want to suggest that majority decisions have moral authority. They have that kind of moral qualities that we’re attributing to government only if majority decision making is legitimate in the first place. In other words, majorities can inherit certain kinds of moral powers, but the fact that they are majorities doesn’t itself create or confirm any moral powers.
So to get what I’m thinking of here, contrast two different things that we might take a vote on. So one thing we might do is to decide to vote on what kind of pizza we’re going to get for dinner. Show of hands, who wants meat, who wants vegetarian, who wants just cheese, who wants . . . whatever? And in so far as we’ve entered into a process of deciding what we’re going to eat by ordering pizza. And it seems like that since pizzas are shared, the smart way to figure out what pizza we are going to get is to see what people want. We agree that the outcome of our vote is going to determine what kind of pizza we get. That seems totally unproblematic.
Suppose instead we decide to take a vote on how to redistribute the cash that’s in all of our pockets right now. We all pony up money, put it into a pool, and we vote on how to divide it. Now to me, and presumably to most of you, it’s going to seem a little bit fishy that somehow you should be obligated to kick over all your cash into a pool and then have your share of what comes out of it subject to democratic vote. What’s fishy about that is that we don’t think democratic vote is the way to decide who gets to keep what money. What we think is, what decides who gets to keep what money is who brought what money into the room. Who has what money in their pockets right now? That’s the principle that gets to decide who leaves with what money into their pockets.
The fact that we decide by a majority means on some kind of scheme of distribution doesn’t mean anything unless, of course, we somehow agree to confer that authority on the majority. The majority itself doesn’t have that power. And of course if we say we agree to confer—we’ll be coming back to that in just a moment, the idea of consent. The present point is that the fact that a majority decides or favors one outcome over another doesn’t by itself confer any kind of moral authority or any kind of moral legitimacy, unless we know already that the situation is one in which the majority has that authority.
To bring out this point a little bit more sharply, I want to mention what maybe some of you are aware of and maybe some aren’t, which is a case history of democracy in Germany in the early part of the 20th century. The Weimar Constitution that followed the conclusion of World War I, reconstituted Germany after the war, established democracy in Germany. But that democracy that was legally established in Germany provided for the suspension of civil rights in 1933, by Hitler and Hindenburg, President Hindenburg in compliance. That democracy put into place, again democratically, proved by majorities, the tools that allowed the Nazis to become a majority in the democratic election, the Reichstag, for the Germans. It provided for majority support, majority approval of the democratic suspension of citizenship for Jews in 1935. And we know what came after. By the time Germany was invested in World War II, it was no longer a democracy. The democracy had chosen to vacate its authority in favor of Hitler. But the point is that all the steps along the way were approved by majorities.
If majorities have the kind of moral power that on this argument explain why government’s special, then Hitler would have inherited that moral power. Something’s gone wrong. Those majorities did not have that authority; majorities in general don’t have that authority. And that’s why most democracies, such as the democracy that we have in the United States, impose lots and lots of limits on democratic decision making. There are many things that we take off the table and say, sorry this is not something a majority gets to decide.
So think, for example, about what the Constitution does. One thing the Constitution does is it says, look there are certain things, say freedom of speech, that’s not something that gets to be decided by majority rule. Judicial review—the power of the Supreme Court to look at laws that are perhaps passed by a legislative majority in Congress—Supreme Court looks at that and says, you know what? We don’t really care whether a majority likes this or not. It doesn’t comply with the Constitution; it’s not law. So the principle of judicial review is one that overturns the power of majorities to make law. Presidential veto is another. That’s another check on the power of majorities to simply impose their will as the law of the land. The president can say, you guys may have voted for it; there may be a majority for it there, but I am not signing up for it; so it’s not law.
All of these are institutional devices by which we check what majorities can do in the legal system in the United States. And part of the reason for that is we recognize that majorities can be extremely dangerous. There’s no kind of moral specialness to majorities; they’re just big groups of people. They don’t have any kind of special powers that others don’t. If, on the other hand, we think, okay, sometimes democratic majorities do have special moral powers, special authority, sometimes they don’t, now we want a principle to decide when they do and when they don’t. Now we’ve landed back actually with the same question we began with: What is it that makes government morally special? What gives it these special authorities? Now we’ve just transferred that question onto majorities.
So if all of that is right, the idea that there’s a democracy as the kind of government that we’re talking about, can’t answer the question, leaves us in pretty much the same place where we began, wondering how it is that government, even a democratic government, could be special in the ways that we’ve been considering.
Let’s take up the other of the traditional thoughts. I think this one is maybe even more common and maybe even more powerful than the thought that it’s democracy that does the work .The thought here is that what makes government special is that we’ve consented to it ,we’ve given our approval to its having its special moral powers. This answer, this story evolves very famously from John Locke. Locke was quite concerned with this question. He was writing at a time when there was widespread dissatisfaction with the authority of the king, and the English were looking for a story that would legitimate the authority that the government, not the king, but the government had. How is it that Parliament might actually have some teeth, some moral teeth, to rule? Given that the English had just thrown off the idea that kings are born to rule, so they have it by divine right. Locke says, no, that’s not right. Nobody has that authority over another person. So now we ask, Oh jeez! How did Parliament get that authority?
So the same kind of question recurs for different forms of government. So Locke struggled with this question and his solution, very famously, is the idea that we consent. Locke said there’s two ways that can happen. One is we can give what he calls express consent, where, right, you say, you consent? And I say, sure, go ahead, you have my approval. The second is what Locke called tacit consent. Tacit consent occurs when you agree in virtue of not doing anything, let’s put it that way. Locke thinks we tacitly consent to the authority of government just by living under it. To the extent that you’re here and you don’t leave, we’re entitled to construe you as having given your consent to the authority that government exercises over you and given your agreement to its using its coercive power to back up its dictates.

Now the problems with the idea that consent can do this work are almost as old and almost as famous as the consent theory itself. The first and foremost one is when and how is it the case that we gave our consent to government’s authority? Those of you who are naturalized citizens here in the United States may have a pretty simple answer to that question. At one point you took an oath and you said, I agree to be bound by the laws of the United States. And when you did that, you gave your express consent. So that answer probably works for you.
The rest of us, those who were born here, are citizens by birth, never had a moment like that. We’ve never been asked for our express consent. And so we may think, you know what? It’s not really so clear to me that I actually did consent to governments having these special moral powers. Now Locke’s story for the rest of us, then, is, well, to the extent that you agree to live here, that you don’t go someplace else, you are giving your consent. It’s tacit; it’s not express, but it’s consent nonetheless. The question is for that strategy or that line of responses, how plausible it is given the alternatives that are open to us, or the lack of alternatives that are open to us?
One of the very famous responses to Locke’s claim that we give our tacit consent came very shortly after Locke wrote, by a philosopher and political theorist named David Hume. And Hume said that taking people to be giving their tacit consent because they don’t leave would be like thinking that someone who has been drugged, dragged onboard a ship, taken out in the middle of the sea, and then the captain says, “look do you agree to do everything that I require you to do, or do you want to walk back?” Hume’s thought is, you know what, when you’re in middle of the ocean on a ship, you don’t really have an alternative. It may not be exactly like that when you live under the authority of the government, but the costs of moving out from under the authority of the government are so draconian that in effect you don’t have the kind of alternative that would make it plausible to think that you’re consenting to this authority.
There’s a second question that’s associated with that strategy as well. And that is, where did the authority to impose the demand on you, that you consent or leave, where did that come from? Love it, or leave it. Okay, why is it that someone has the capacity to give you just those two choices? That’s really just another version of the same question we’re worrying about. Where does this authority come from? How it is that someone can obligate you to love it or leave it? How is it that someone can obligate you either to consent tactically to the authority of government or pack your bags and leave the country? That’s a version of the question we began with as well. So this consent story also doesn’t give us an answer to the question about what gives government these special moral powers.
Now why do these questions matter? Well arguably the story that we give about government’s special nature, may inform our thinking about what it makes sense to ask government to do. After all, if we can only make sense of government having authority under certain conditions or to serve certain ends or social purposes, it won’t make sense to us to ask government to do something that doesn’t serve those purposes or doesn’t answer to those particular constraints.
So to the extent that we are willing to give government authority, recognize its authority, to concede that it has the legitimate power to coerce us, it makes sense for us to think, where did those powers come from and what kinds of limits do they have? So the answer to why is it special question, I think, is very deeply and importantly related to our questions about what the legitimate tasks of government are. Those questions are tied together. So, to put it another way and in conclusion, in thinking about what makes government special in the ways we have been talking about, that may lead us to insights into what we should want or should ask for from government, and where we think we should find its limits.