 Welcome to Free Thoughts, a podcast about libertarianism and the ideas that influence it. Free Thoughts is a project of the Cato Institute's Libertarianism.org. I'm Aaron Powell, a research fellow here at Cato, an editor of Libertarianism.org. And I'm Trevor Burrus, a research fellow at the Cato Institute's Center for Constitutional Studies. Governments make laws and their citizens have a duty to obey them. Most people think that's so obvious that we don't even really need to discuss it. But is it that obvious? A duty to obey is a rather powerful thing, after all, so it makes a lot of sense to try to figure out where it comes from and how far it reaches, and if it even exists at all. Governments certainly want us to obey them, but what sort of arguments are there for why we should? Joining us to discuss this fascinating and controversial topic is Jason Brennan, Assistant Professor of Strategy, Economics, Ethics, and Public Policy at Georgetown University. Jason's the author of three books, Libertarianism, What Everyone Needs to Know, The Ethics of Voting, and with David Schmidt's A Brief History of Liberty. He's also a regular contributor to the blog, Pleading Heart Libertarians. Welcome to Free Thoughts, Jason. Thank you very much. So I thought before we plunge into this topic, we should begin with just what we're talking about when we say a duty to obey, and specifically a duty to obey the law. Like what is that a duty to? Because it seems there are a lot of things that are illegal like theft and murder. Mattress tag ripping. That's probably not a good example for this particular question. So let's stick with theft and murder that I don't do those things and they happen to be illegal, but I don't not do them because they're illegal. It's not like if they weren't illegal, I would go around doing them. So I have this and I don't do them because I have a moral duty not to do them. So I'm following that moral duty and the law is piggybacking on top of it. So are we distinguishing then this duty to obey the law from morality and if so, how? Yeah, well the duty to obey the law is supposed to be a duty within morality, but it's supposed to be something like you have a moral obligation to obey the law. But when we're talking about there being a duty to obey the law, we mean the idea that you have to do something because the law says so. So suppose I say right now, I, J, Brennan, hereby command everyone on earth to fulfill all of their moral obligations. Now by hypothesis, people should do what I said, but they don't have to do it because I told them to. I'm just here, it's not because I commanded it that they have an obligation. It's simply that they have pre-existing moral obligations to do certain things and they should do them because of those obligations. So similarly, if the government says, you know, you can't kill people, we're going to throw you in jail if you do, that doesn't mean that's the explanation for why you can't kill people. You have a pre-existing moral duty not to kill people. If I suddenly, as we're sitting here, get a notice that it's become legal for me to kill anyone I want, that doesn't change things. I still have an obligation not to kill people. So we're talking about there being political authority. What we mean by that is a power that governments supposedly have to create obligations where there weren't any. So something like that might be like you weren't obligated to pay 40% of your income and taxes, but then they command you to and it now becomes a duty of yours because they commanded you to do so. So some features of this too, to understand what really is going on with authority are things like people when they assume that there's government authority, they are assuming that generally speaking citizens, most citizens in the country have a duty to obey the rules of their government that states have authority over a particular group of people. So the United States government has authority over me, but Canada's government doesn't. And likewise, like the United States government doesn't have authority over Canadians, but the US government, the Canadian government does. But the state's the ultimate authority here. There's no higher power to decision maker and that within a large range, the state's authority doesn't depend upon the specific things that it commands. So it seems that this may strike people as an odd question. It's sort of assumed I think by most people that we have an obligation to obey the state and that it's wrong to not pay your taxes, possibly two different types of wrong, but at least in some sense wrong. But of course, modern political philosophy began mostly with a discussion of why is there a state at all? It didn't treat political authority as obvious and Locke and Hobbs are two that I'm particularly thinking of. And now perhaps we do think of it as obvious. And is that a problem? Should we be thinking about the legitimacy of the state as a consistent problem with political theory? Yeah, you're right. That's it is one of the oldest questions in political philosophy. And even going back to, say, Plato's the credo. He's talking about this issue. So you're right that most people assume that there's an obligation to obey the law. But on its face, it's actually kind of a puzzling obligation. Where does that come from? And this will surprise a lot of people, but you know, most philosophers advocate having a state. Most political philosophers think we should have a state. They think we should have a more extensive state than most of your listeners think we should. But the consensus view in political philosophy now is that there isn't an obligation to obey the law per se. So to kind of show you why they might be puzzling, I'll use a thought experiment from Michael Hummer on this. He says, you know, supposedly you're living in a village and you take it upon yourself to lock up people who violate other people's rights. And you do this for a while. You end up making people's lives better as a result because you get rid of the criminals. And then you go up to your neighbors and say, hey, it cost me a lot of money to keep these people in bars. I demand that you give me $500. Very few people are going to think that you have an obligation to pay this person to, for locking people up. That's a nice thing for me, but you don't owe it to him. And if he then says, oh, on top of that, by the way, not only do you have to pay me $500, but I don't really like it when you smoke pot. So don't do that anymore either. Is there a difference in those two possibly though? Because one of them may have more moral weight. If you're locking up people that are really bad, you know, perhaps it is the case that they're not paying you. They're not paying you out of a sense that you did something out of the goodness of your heart. But the pot smoking is maybe a totally different moral category. Is it to go back to morality of like sort of core violent action versus self-harm? Yeah, well, there might be a difference there because there's a question about what the state is allowed to do. But the important point is just to say, like, we often, the things that we don't take it like, we can have a situation in which I have similar kinds of attributes to the state and I issue you a command and you don't take that to mean that you actually have a duty to follow my command. But people think that you do have duties to follow the state's commands. So if Batman locks up the Joker and then demands that you pay him, you don't think you owe it to him to pay him. You're not required to. If the state locks up somebody that demands that you pay the state for doing that, you do think that. So there has to be a difference, something that explains why states have this special power to create obligations when the rest of us don't. So theories of authority are all theories that are trying to explain how it is that the state could have a power to create obligations out of thin air in people, obligations to specific people that live within its territory rather than everyone and so on. They're obligations by virtue of this, these theories. Yeah, in virtue of the command, yeah. So how do, what are some of these ways that people have argued for? Yeah, so there are a number of different theories and really there's a huge number. There's too many to even go through. But the basic theories are one that tries to ground the authority of the state on a contract and to claim that we've consented to the state. So in the same way that I have to pay like a Wells Fargo, a certain amount of money every month because I have a contract on a mortgage, I've agreed, I've consented to that and that exposes me to certain obligations to them. Some people try to argue that we've consented to the rule of the state in one way or another and in virtue that we have a contract with them, we owe them obedience of a certain kind. Now do they mean literally? Some people, yeah, I mean the thing about the so-called consent theory is no philosopher actually really believes in it or a better way of putting it is the philosophers who believe in the consent theory believe that there's no such thing as authority. Like it's like this is what it would take for there to be authority and nothing ever actually manages to get real consent so there isn't any. But despite that, it's an important theory to start with because it's the theory that kids are taught in sixth grade civics classes all around the country. They say that government rests upon the consent of the governed, that we consent to government. And the reason they get this... The government of, by and for the people and everything like that, yeah. And the reason that they think this is because that's what Locke believed. He had a consent theory of government and America has kind of a Lockean political philosophy that's implicit in our language. So yeah, so the consent theory holds that we explicitly or implicitly consent to the government. And so one version of this will say something like, like Locke actually had this really kind of crazy idea that what happened was years and years ago people literally made a contract with rulers to protect them. And then the reason that we, like the people who follow afterwards because we weren't part of that contract, the reason that we are obligated to obey this state is because there's basically a restricted covenant on all of our property. Were successors an interest in the legal sense, yeah. That's right. And that can't be right. I mean, David Hume made fun of that years ago. And he said that's just historically speaking that's utter fantasy. What actually happened was you had a bunch of people conquering one another and seizing things by force. There wasn't any actual original contract. So a better version of the theory that you also see in Locke is that, and you see this in Plato as well, is that perhaps by staying in a country and receiving benefits from the government, you've kind of agreed tacitly to consent. You've signified your consent. And there are cases where that kind of thing works where you implicitly consent without expressly saying it. So here's one case. I just went to a restaurant recently, like right before coming here. We sat down at the table. We ordered food and then later they come out with a bill. Now we could say something like, we didn't, we never said we were going to pay. All we did was we said we wanted some food, but it's understood in context given our cultural background. If you sit down at a restaurant and you order food, you are implicitly agreeing to pay for the food. Or another example would be, suppose that there's a boss and he says, okay, I'm going to have the, next week we're gonna have a meeting at 10 o'clock on Thursday. If anyone disagrees, raise your hand and no one disagrees. Then at that point you haven't shown that you dissent and so you implicitly consent to it. Or one final version would be something like, if I say, okay, I'm gonna have a party at my house, but anyone who's here is understood that you're gonna help me clean up afterwards and then you continue to stay there. In that kind of case, you've consented to cleaning up like I've asked you to do. So the question is, can you use these basic insights to ground a theory of authority? And I don't think you can. It seems to me though that all of your examples were about consent on a very kind of individual basis. You sat down at the restaurant table and now you are obligated to pay. But is that the way that people, like when you talk about the founder of the consent of the governed, it seems like people there are thinking more about a kind of group consent. So they'll acknowledge that, yeah, there may be a handful of people who don't think they have to obey the government and the government doesn't have authority over them. But we as a people, which could be the majority or just kind of common sentiments or something like that, we all think this is kind of a good idea. And so this group sense trumps the few outliers. Yeah, well, that's almost turning into a different kind of theory. It's more of a theory of the majority prefers something and you have a duty to do with what the majority prefers. And that's no longer a consent theory. That's just a theory of democratic authority or something like that. So if you like that kind of theory, it may or may not be right, but it's not a consent theory. And you know, the idea here is that like consent is supposed to explain why you in particular, you for every single listener have an obligation to obey the government. And so the problem, I mean, it seems like we first have to look at the cost of exit. Yeah, that would be necessary. Would we examine either your house party example or the restaurant example? If the restaurant built a wall with spikes around it. Yeah. And they're like, well, you didn't leave. Like, well, I'm not going to go over the spiked wall. Yeah, that's right. Yeah, and so David Hume had a kind of similar criticism of it. He said, people claim that you implicitly consent to government because you don't leave. But the problem is it's incredibly costly and difficult to do so. You have to give up a bunch of stuff that you have a right to. Most people simply don't have the means to do so. So he has a thought experiment where he says, imagine that you've been kidnapped and placed upon a boat and you wake up and then the captain says to you, well, if you're going to stay on the boat, you have to obey my commands, but otherwise you're free to leave. And freeing to leave means you jump into the ocean. Clearly, you don't really consent to stay there. Or if I say to you something like, okay, we're going to have a meeting next week at 10 o'clock. And if you don't agree to that, just chop off your arm. That's how you signify that you don't agree. I've imposed a really high cost for what it takes for you to express descent. So we're not really going to count that as consensual when you come. So the problem with the implicit consent thing here is governments control all the land. You can live in the ocean. You can live in Antarctica. You can go try to hide in a cave somewhere. But pretty much saying that you implicitly consent to government is like saying that because you chose not to die, you agree to the rule of the government. The situation is kind of like if one more metaphor, suppose we have a woman and a bunch of men say to her, we're going to force you, you have a choice. You can die of starvation or you can marry one of us, but we'll let you choose which one of us you marry. Well, if she chooses Bob over Eddie, I guess she in some sense agreed to marry Bob over Eddie, but she didn't agree to be married as opposed to not be married. And that's the situation that we're in. Governments, we don't have a choice except by dying to avoid the rule of the government. So we don't really consent to a government. So either jump in the ocean or move to Antarctica. That's pretty bad. So how long does consent, even if we do consent, is that a once it's on, it's forever sort of thing? Like if we all got together, like the three of us decided to form our own little state and we signed a social contract, then am I stuck with that contract for the rest of my life? Or are there, it seems like there ought to be ways where one could back out of it. Right. Yeah, I mean, one question is if it were a contract, is it a conscionable contract? It does seem like a, you know, in the same way that someone's really desperate and I say to him, you know, I'll save you. I'll bring you, you're drowning and I'll bring you to shore. If only you agree to make me your ruler from now on. We don't know if there's anything we're supposed to enforce that contract. But then suppose even it's not, it's not an unconscionable contract. If I start acting really badly as the other party and I don't discharge my obligations, it wouldn't be a valid contract anymore. There's a point in which I've reached my obligations. And there were Supreme Court cases, one of them was Warren versus District of Columbia, where people sued the government claiming that it hadn't protected them when it was supposed to. And the U.S. government's official response was, we don't actually have an obligation to protect any particular individual. We don't owe it to you to do that. The government's duty is only to the public at large. But the problem there is then, if that's the case then it's not clear why we, any individual owes a duty to obey the government. If they can't enforce the corollary obligation. Yeah, exactly. There's no corollary obligation. It should just be that the public at large owes it to the government to obey it, but not you and not me and not anyone here listening. So, yeah, even if there were some sort of contract, you would think that like literal normal contract law would apply here and if the government abrogates its obligations, that would release you at some point. But no one who actually advocates the idea of government authority really thinks that. So, this is why the consent theorists tend to think that there's no such thing as government authority. Yeah, that's right. So, when I said that there aren't consent theorists, what I just mean is, if you are a consent theorist, you don't believe in government authority. You have to think that, that doesn't mean you're an anarchist. You might think that it's okay for governments to exist and create laws and enforce them, but you don't think that people have a duty to obey those laws because they're laws. So, the consent theory, you know, if you're taking an introductory political philosophy course, you'll probably go over that first and you'll quickly see what's wrong with it and then you move on to the other theories that are supposed to make up for the problems of it. But consent can help us figure out, like, how to live in small communities, possibly, or how to figure out what to have for dinner. That's a consent theory, but it doesn't create states and political obligations. Yeah, that's right. So, that last comment you made brought up this terminology question because there's lots of terms that get used in lots of different ways within this broader field of philosophy of political obligation. So, you said that they can consent theories could say there is no, we haven't found a way to get to an obligation to obey, but that the state can still exist and make us do things. So, what's going on there? You've talked about the decision of legitimacy. Is that what we're talking about there? Yeah, I mean, the words aren't always used in a completely the same way between or among all philosophy papers, but the tendency now in recent political philosophies is to distinguish consent from, sorry, authority from legitimacy. So, authority refers to the power of a government or the supposed power of a government to create obligations in others. So, the question, do I have a duty to obey the law is a question about authority, but then legitimacy refers to the permissibility of government creating, to exist, to create laws and enforce them. And you can believe that government is legitimate without thinking that it's authoritative. In fact, that's actually kind of the common view in political philosophy now thanks to a philosopher named John Simmons down at the University of Virginia. This is the idea that, you know, it's okay for there to be, say, a liberal democratic government. They can create rules. They can have police officers enforce those rules, but you as a citizen don't have a duty to obey those rules. And you could also believe in the opposite. You could be a different kind of anarchist. You could say, I don't believe in legitimacy. Like, let's say you're a pacifist. You might believe that no one can ever use violence under any circumstances, so you don't think anyone could ever enforce any rules, but you still might think that there are groups that can create rules that other people would have a duty to obey. So, the common sensically, most people think that there's authority and legitimacy. They think we should have a state. The state should create laws and enforce them, and we have a duty to obey them. The more common position in political philosophy, though, is that we can have a state that creates and enforces rules, but there's no duty to obey those rules per se. And, of course, there's always the problem of states doing things that, like, crazy things. I mean, Nazi Germany is always the problem. Yeah, but things that would go way beyond the bounds of a contract if it existed in the first place. Exactly, yeah. Yeah, that's right, and it's a good way of putting it. Like, nobody who thinks that there is a state that has authority thinks that literally everything a state does is authoritative. So, say my former colleague, David Essland, he thinks that there can be situations in which a state might order you to fight in a war, and it's not a perfectly just war, but you still have an obligation to go along with that. But if the same state then orders you to, say, become Buddhist, you have no such obligation. So, pretty much everyone who thinks that there is political obligation slash authority thinks that that's only going to be within a certain scope. That there might be some things the state can order you to do and you would acquire an obligation to do, but not literally every order becomes obligatory. So, the consent theory then works in the sense that it gives us a story that would create obligations and authority, but its requirements are so strict that they've probably never been satisfied and arguably never could be satisfied. Yeah, it would make sense of political authority. It would ground it. It gives us genuine reasons to accept political, like something that would ground political authority, but if only the conditions were ever met and there never are. So, what about hypothetical consent? That's the other one. What about things that you would agree to if you knew about all the conditions in order to totally rational, knowledgeable human being? Does that seem to work? Or people have said things like that before? Yeah, that's right. So, usually after people realize that explicit and tacit consent don't work, they'll move to what's called hypothetical consent. And that's the idea that like you would have agreed to something if you'd known better and so therefore it's okay. And to kind of pump the intuition behind that. So, imagine a case where a person comes into an emergency room and he is unconscious and he's bleeding out. And the doctors go, normally doctors seek consent from people, but this is a case where they go, I can't actually get his consent because he's dying, but I think that if he were awake, he would have consented. So, I'm going to give him a blood transfusion. So, that's a case with hypothetical consent that really works. You expect that the person would actually agree to it. The problem though is that even though that case works, you're not going to be able to ground a theory of authority on that. So, one thing about hypothetical consent is that it's not really about consent at all. It really reduces to the argument that you would or should consent because it's good. Or rational possibly. Yeah, and the problem with that is that you generally can't force someone to do something or demand that she'd do something just because it's reasonable or rational. So, suppose like Sylvia, suppose the following were true. There's a person named Sylvia, and if she were fully informed and fully rational, she would marry Mark. That doesn't mean that she has a duty to marry Mark, and it doesn't mean that Mark can be forced her to marry him, even though we're supposing that if she were fully informed and rational, she would. Or suppose if Bob were fully informed and rational, he would work at Deloitte. But that doesn't mean that Deloitte can demand Mark work for him and that he has a duty to do so. Or sometimes people, they put this in terms of fairness. They might say, well, it's a fair offer. Well, suppose Sue makes Joe a fair offer for his car. The offer is perfectly fair to both parties, and Joe, if he were reasonable, would accept it. But he refuses. It doesn't look like he has a duty to sell. And one other further problem with hypothetical consent theories is that hypothetical consent is always trumped by explicit dissent. So, go back to that case where a person comes in, and he's on the ER room, and he's unconscious and bleeding. Now, if you start giving him medication and help, and he wakes up and says, no, no, I don't believe in medical treatment. I have religious reasons I oppose it. You can't go, oh no, you hypothetically consented to it. Like, at that point, his explicit dissent trumps your assumption that he would have consented. So, I think that seems to fit into the John Rawls theory of legitimacy to some extent, right? That they don't think it's a historical fact that such a consent existed. But it's also Kant would sort of get into that idea, too, that if you imagine all these rational people thinking about this, this is what you would have agreed to. Yep, that's right. So, yeah, Rawls is a thought experiment where he imagines perfectly rational people who've had a veil of ignorance placed upon them so they don't know any facts about themselves, creating a set of rules that they are expecting everyone to live by. And what he really wants to do with this mechanism is to try to derive some theories of justice. And he may or may not be successful in that. But on top of it, he then tries to argue that there is, and he has a number of arguments, some of which we'll probably get to, for trying to argue that there's a duty to obey the law. And, but, again, it's like the fact that somebody would have agreed to something if they were fully rational and doesn't yet show us they have a duty, too. I mean, just to take one more kind of vivid example, because it's a case that people are definitely going to agree to, you know, if Bob can sort of give evidence to Sue that, Sue, if you were really fully informed and fully rational, you would have sex with me right now. She doesn't thereby acquire a duty to have sex with him and he certainly can't force her to do so. So, hypothetical consent, whatever is to be said on behalf of it, it doesn't get you everything you need to ground an obligation or to ground the rights of government to do what people want it to. What about the argument that, so, I mean, most of us go through our lives without ever being in a position where we articulate consent or lack of consent to the government. We're not asked on a weekly basis or when we reach the age of 18 or whatever. But what about the argument that even though we haven't explicitly consented or dissented, we still have, through the course of our life, undertaken actions that look an awful lot like consent. In the same way that, example of, you know, like, we're going to have a meeting next week at 10, anyone who disagrees raises your hand, no one raises their hand. You know, that not raising your hand is an act that signifies consent. So, maybe me, you know, the one that comes up is like, we use the roads and the public school system and all these other things. So, we've consented. Yeah, that's supposed to be a version of the tacit consent. The argument that we were talking about before. And the problem here is, look, it's clear that I have accepted certain benefits from various states. And I've used public goods. I've received public education. I drove in on a public road coming here. So, you know, have I consented to these things? Well, the problem is, again, like, I do have the choice in the sense that I could go be a hermit. I could go, I guess, go be a hermit in the woods and never interact with human beings again at very great cost to myself when I'd probably die if I tried to do that. And I'd lose everything I'd have a right to. Like, I'd lose my house and a bunch of other things that I seem to have some sort of claim over. I could go live in the ocean and drown. I could live in Antarctica and die there. Or I can live in a particular country. Now, some people like me are relatively privileged. I had an opportunity to move to Australia. So, I could have, in a sense, chosen one country rather than another. So, you might say that I've at least agreed to live in America as opposed to Australia. But I haven't thereby agreed to live under the rule of any particular country any more than going back to David Hume's thought experiment. That guy on the ship has agreed to stay on the ship. I mean, if you want to expand that out, say, imagine we kidnap a person, we put him on a boat in the middle of the ocean and he wakes up and the captain says, if you want to stay on the ship, you have to obey my rules. And it turns out there's 40 other very similar ships nearby. So, he could, I guess, pop onto a new ship and obey the rules there. But it's clear he hasn't agreed to be on a ship. I mean, he might agree to be on one ship rather than another, but he hasn't really consented to be on a ship. And there's also the interesting aspect that is not often common about that when the state starts crowding out alternatives. So, for example, you used education, so therefore maybe you consented to this. But how does that work in a state like Germany, for example, that makes homeschooling illegal or crowds out any other competition? Well, this looks like a kind of monopoly in the market sort of thing of you're like, well, there's only one cable provider and you're using it, so you must like it. Yeah, to some extent. I mean, I think that happens a lot. The same thing happens. Jason brought up the obligation of police or to protect you, which has come up a lot. And they say we don't have this obligation. And then in some places, we're going to make owning firearms illegal. I mean, all these things have this weird scent where it's like, well, you're consenting. And this goes into the next theory, which is kind of, I think, the gratitude type of theory that you didn't build that. Like you're using things and you should be happy about these people who supplied you with things, which has been a pretty high currency recently with Elizabeth Warren and everyone else. Is there a gratitude theory of political obligation? Yeah, you know, there's a number of theories here. I kind of think they're all variations in the same one and they're grounded ideas of gratitude or reciprocity or that we associate with other people. We kind of benefit from them and then we acquire obligations in light of that. Now, first of all, to begin with, I think we do have positive obligations to one another. Like I think we sometimes owe each other charity, that we sometimes owe each other rescue and not just in special cases like what I owe to my children, but even to strangers, I think we can have positive obligations. So I'm not denying that there are positive obligations. The question though is whether any such positive obligations can be used to ground a theory of authority. And I guess I don't think they can. So the idea behind a gratitude theory here is that if you benefit from someone or something, you can under some cases owe that person gratitude. And a closely related idea is reciprocity, which is that if someone does something for you a favor, you can sometimes owe that person a favor in return. And those ideas, I think are correct. You do often owe people gratitude. You know, you should call your mom up and say thanks. Probably doesn't know what your mom was like, I guess. And if I drive you to the airport out of the goodness of my heart, then you should at some point do a favor for me back in turn. But the problem with this is not clear how you can ground a duty to obey the law on those things. So for example, suppose my mother was a good mom. She was a good mom, actually. She says, and then she calls me up right now and says, Jay, I demand that you not smoke pot. And I also demand that you pay anyone who works in your business $10 an hour minimum as a way of showing gratitude towards me. Now I owe her gratitude, but just because I owe her gratitude, it doesn't mean she can impose these obligations. Or suppose she says, Jay, I was a good mother. You kind of owe me some thanks. So what I want you to do is attack my neighbors for me. I think they're bad people and they're doing horrible things. Will you go attack them? That doesn't follow that I have an obligation to attack them just because I owe her gratitude. So I owe her thanks, but I don't have a duty to obey any of those commands. In addition, so in order for this theory to work, you have to show not only that you owe the state gratitude, but that the way you discharge this duty of gratitude is to obey its commands. That doesn't work in any other, like the cases that are meant to motivate the thought in the first place, it doesn't work. So it's not clear why it would work for the state. In addition, one other further problem with reciprocity and gratitude type arguments is that they have a hard time with specificity. So I grew up in Toxbury, Massachusetts, in Hudson, New Hampshire. The townspeople there paid taxes and educated me and I benefited a lot from their roads and so on. So a large part of my explanation for how well I'm doing has to do with the things that the good people of Hudson and Toxbury provided for me. So if the gratitude theory would, if it were going to work at all, the reciprocity theory, if they're going to work at all, it might help explain why I would have special duties to the town of Toxbury or the town of Hudson. Or alternatively, if you want to talk about the standard of living that I enjoy now and other kinds of opportunities available to me, I'm depending upon people all over the world, not just people, but governments all over the world, you know, part of the reason that I can drive the car that I have has something to do with policies that Japanese government made at some point. And so if I owe thanks to people, I might owe thanks to almost the entire world. So gratitude and reciprocity don't explain why we specifically owe an obligation to obey the laws of our particular nation state that we happen to find ourselves in. It's more plausible that we have these obligations to everybody or to a much more constrained group. Well, it also doesn't seem like, as we talked about before, you could get some sort of authority, but it doesn't tell you exactly the scope of that authority and where you get it from. I've heard this, like I said, this argument has gotten more play in casual policy arguments. And libertarians often get attacked for being like, well, it's so nice that you drove here on public roads, went to public schools so you can stand there and talk about how these things aren't very good. You owe gratitude and some sort of duty. And what you get from that though is a question of, well, where does that end? Is there a scope of my obligations that end? Can you take all of my money or none of it at your discretion simply because I use your roads and your school? It also creates kind of the weird situation that I mean, these arguments are often used to advocate for growing government. I mean, Elizabeth Warren made these arguments to wanted government that was bigger than it is now. And that seems weird to say like, okay, I've given you stuff in the past. Therefore, you have a duty to obey me and one of the things you have to do to obey me in doing is taking more stuff and more stuff that I'm gonna give you which then creates an even greater duty that I can kind of just use my authority to pump my authority. Right, and that wouldn't work if you were talking about personal relationships. If I were, say, an abusive husband and I kind of keep my wife in the basement and but I provide her with lots of benefits. I feed her. I do protect her from outside predators. I make sure that she has running water and clothing and things like that. She is benefiting from me but I might be also doing a bunch of bad things to her at the same time. It's weird to think that she has a duty to obey me or that it would be an argument for giving me even greater power. I mean, if Elizabeth Warren said something like, look, you should, like, it's not simply that we provide you with benefits but in the absence of the state, life would be a disaster and then, so we need to have a state. That's a different kind of argument. That's no longer an argument about gratitude. It's just an argument that states are good and the absence of states are bad, right? And again, the scope of the authority is not clear and that's the other thing, too, is you got to take all this together. You have to take a drug war that puts people in cages with the public education system. Maybe one thing that justifies the latter wouldn't justify the former under any theory of more obligation. Yeah, that's right. And one thing, you know, for listeners, too, you know, I keep using these personal examples like what if one person did this to another person and you might think that's not a legitimate philosophical move because we're talking about states. But in fact, it is and here's why. When people are coming up with a theory of authority, what they're trying to do is come up with an explanation for why states have this special power to create obligations. So they'll say, oh, you have special power in virtue of hypothetical consent or an obligation of gratitude or whatnot. So the way you can test that is you imagine a situation in which a person meets those conditions, the conditions specified by whatever theory and then you ask, would that person have authority? And if they don't, then it shows that that theory the person's offering doesn't, like we're offering as a theory of authority, doesn't actually work. It's not the actual thing that's grounding authority because if a person has it and a state has it but the person lacks authority and the state has authority, then that thing is not actually grounded authority. And it's also highly intuitive because it at least shows that this kind of stuff needs justification in a way the other stuff doesn't. So if these arguments just don't work, I mean, they so kind of obviously don't work. But this is still, I mean, if you went out and you started asking people on the street, do you think that the United States government is legitimate? Well, many might say so in that case. But in general, they'd say like, a good government is a legitimate one and we have a duty to obey it. So what, I mean, what's going on there? That seems like most people think there is something different about the state than if an individual does this and they probably wouldn't be swayed by the argument that consent and gratitude don't work. Yeah, well, I think, you know, we're going through it quickly. My experience is if you go through this more slowly with people and they really read the arguments on behalf of it and then hear the, like kind of see the people defending the state do their best. I mean, defending state authority, not the state, but state authority do their best and then see the criticisms. They tend over time to become skeptical because they really just see all the arguments fall apart. But you know, here, this is a case where there's a very common intuition that people have, like people believe in this, but it's because they've been taught it at a young age. It might be because people are naturally drawn to the idea of authority. They say that they say the pledge allegiance every morning. Yeah, that's right. We indoctrinate our children into pledging allegiance. We tell them this. So, you know, another example, this isn't like directly germane here, but I wrote a book on one of the topics of the books was whether there's a duty to vote and I spent a couple of chapters arguing there isn't. And what I had to do was come up with a list of here, all the arguments I've ever seen on behalf of a duty to vote and show that the premises don't really work. The arguments fall apart. So it's a widespread belief, but people can have mistaken widespread beliefs. I mean, that's been common throughout history. People used to, almost everyone was racist for a long time. Almost everyone was sexist for a long time. So now we're a situation where almost everyone believes in state authority, but if they have good grounds for believing in it, we don't know what their grounds are. But I think that if you actually went to the man on the street and asked them, even if you could convince them, and maybe this is true of the philosophy crowd too, even you say, okay, let's go through this. And we say, okay, there's no such thing as political authority. At the end of the day, they'd probably be like, yeah, but I mean, anarchy is gonna be really awful. So we need to have a state for the consequence of the state, which is maybe what, you know, I've always said, and I know Aaron has said this too, that I'm pretty convinced by philosophical arguments for vegetarianism, but meat's really good. And it's just a sheer weakness of will for me that's unable to overcome that. Or I think you frame it. You say, look, there may be a moral case against the state, but the enormous harm that would result from not having a state, say, would itself be, and it ends up preventable harm. We could simply have a state and violate these particular moral rules. And in doing so, we would prevent this huge harm. So not preventing that harm is itself a greater moral evil. So is that a theory of authority? Yeah, well, if you're saying it would really, if life would be really awful in the absence of a state, that's a reason to have a state if that's correct. But it doesn't yet imply that there's authority. Authority is not, you're talking about a legitimacy. Is it permissible for someone to create a monopoly on the use of force and to create rules and enforce them? The answer to that might be yes. But authority is the question, well, when they create the rules, do you have a duty to obey them simply because the person commanded you to do so? And so today we've just been talking about that second half of it. Is there a duty to obey the law? So the position I'm talking about here, it's what John Simmons calls philosophical anarchism. It's actually not literally anarchistic because you can be a hardcore statist. You can even be a totalitarian and be a philosophical anarchist. So it's really a misnomer. It's simply the view that states may exist, they may do what they do, but they don't have, you don't have an obligation to obey their rules. Maybe that is the widespread belief because we had things such as the conscientious objector status ratified by the Supreme Court. The modern liberal state is something where occasionally people can stand up against the state and say, I don't have a duty to obey your laws and we think that's generally good. Well, but in that case, I mean, I don't think that they're giving a general, like I don't have any duty to obey any of your laws. It's simply this particular law is unjust and therefore either isn't a law or isn't the kind of law that I have a duty to obey. Well, conscientious objection is in a sense, if there is no philosophical authority, I'm sorry, if there's no government authority, political obligation, then conscientious objection becomes a trivial issue because you never have an obligation to obey the law simply because it's a law. So you're always free to break any law that you don't have just a non-legal moral obligation to obey. So if there's no philosophical authority and the government says to you, you can't smoke pot. You can just ignore that for any reason you want because there's no duty not to smoke pot. Conscientious objection is only kind of interesting in cases where the government is authoritative and they're giving you kind of an exemption because you're so opposed to it. So if you actually go and read the literature on conscientious objection, it's always starting from the assumption that the government is commanding you to do something, like fight in a war that you actually have a duty to fight in but you're so opposed to fighting, they're going to let you off the hook if you do certain things or otherwise, like, you know, if there's no authority, you can just, you never have to obey the law. That's not to say you can do whatever you want because I can't kill you, I can't steal from you, I can't beat you up, I can't take your stuff, I can't do a whole bunch of other things towards you. But I have these obligations just in virtue of being a person and you're being a person. It's not because the government commands me to do it. So what about the, you talked about breaking laws, but what about the, what if everyone did that? So what if everyone became murderers? Well, that would be a different moral obligation. Yeah. Everyone tore the tags off mattresses. Everyone tore the tags off mattresses. I get this a lot in voting, which I mean, is another of your specialties. What if everyone decided not to vote? I personally don't vote. And I always tell them, well, when that happens, I'll vote and I will decide the election. But generally speaking, are those arguments, the good arguments? Yeah, so that's good. So this brings us to another kind of theory of authority, which is one that tries to go from the need for government on a consequentialist grounds to authority. So we can call this kind of the consequentialist theory. It says, you know, first premise is that like anarchism, like full-blown anarchism, where there's no state would be a disaster and government's much better. So we should have a state. It was permissible for states to exist. And then they say, now if we're in order for states to do what they need to do, we need people to obey. So therefore you have some sort of obligation to obey. So there's a number of problems with that. One is that governments don't really need to function for everybody to comply. They just need most people to do so. So it doesn't really create any specific obligation in you. So it's true that like the government wouldn't work if people weren't paying taxes, but it will work if you don't pay your taxes. So it will work for any particular reader. If you decide to break laws, the government's going to function just fine. If you decide not to pay your taxes, the government's going to function just fine. So it doesn't explain why you have a duty. It just says that it's important in order for it to work that a lot of people do things. Beyond that though, I'm saying like, well, what if everybody did that? If you kind of use that reasoning and get some sort of absurd results. So suppose what if everyone were a Catholic priest? Well, then the human race wouldn't go extinct. Then that would be terrible. So therefore no one can be a Catholic priest. Doesn't follow. Or what if everyone were, what if no one, like if I say, I don't want to be a farmer. And someone says, what if no one decided to be a farmer? We'd starve to death. But it doesn't follow that I have to be a farmer. And then also sometimes like, what if everyone did that? You actually get the right result. Like what if everyone decided to break bad laws like conscription laws for unjust wars? That would be great because then we wouldn't go to war. Or the Holocaust is the example we can always bring up. Yeah, so that'd be a good thing if everyone did that. Yeah, so I mean, what are the things that people are worried about? So what if everyone decided to murder? Well, you can't murder independent of whether the government commands you to. If the United States tomorrow, as in a recent movie called The Purge, which I've heard is very bad. I haven't actually watched it. In the movie The Purge, the government I guess says for half a day a year, everyone can commit any violent crime that they want. Now from a moral point of view, that doesn't change anything. If the government tomorrow says from 12 a.m. to 12 p.m., you may murder anyone you like. You still can't murder anyone you like. You have a moral obligation not to kill people. They say you can steal whatever you like. You still have a moral obligation not to steal. So saying that there's no duty to obey the law doesn't mean that there's a moral free for all. You still have whatever other moral obligations you have. It just means that you don't have an additional set of obligations to obey somebody's commands. So where do we get with this? If we've gone through a bunch of these arguments and seen that many of them are failing, and as you've said, that's pretty widely agreed in the philosophical, political, authority community. Well, some listeners may say, well, this is just a pie-in-the-sky discussion about the philosophy of the state. It doesn't have a lot of real-world application. Does this have any sort of policy application for the way we should talk about things as libertarians? Yeah, I think it has actually rather important implications for your day-to-day life, including some of the people we'll be uncomfortable with. So I'm writing a paper right now. It's bound to be controversial, but the paper has a set of thought experiments that go like this. Imagine a set of circumstances in which you and I would agree, just common-sensically if you're watching in a movie, that it's okay for one person to use force against another. A guy walks into a movie theater and starts shooting the patrons. Is it okay to shoot that guy to protect everybody else? Everyone's going to say yes, unless you're a pacifist, yes. Come up with a list of things like that. So you have people who are perpetrating injustice against you or others, and we think it's permissible for you to stop that person using violence, perhaps even deadly violence. Now, come up with a similar set of circumstances that are almost identical in every respect, except now the perpetrator is a government agent doing the same thing. Now, if authority exists, then explain, like, so they ask, well, if it's okay to kill the bad guy when he's shooting up people, like, if it's okay to kill the guy who's shooting up a movie theater in order to protect the innocent people, is it okay to kill those cops in New Mexico who were shooting at the minivan a couple days ago with the kids full of it? If authority exists, if governments have authority, it would explain why there's a difference. But if they don't have authority, there might not be any difference between those cases. So that, you can get pretty radical results, but maybe a more mundane thing is just people are often doing things because they think they have to because the government told them to do so. If there's no such thing as authority, then you just ask, do I have an obligation independently of the government to do this? Like, so murder people. You can't murder people regardless of what the government says. But on the other hand, should I refuse to smoke pot because the American government told me not to? Well, if it doesn't have authority, you can just feel free to ignore that rule. Without moral compunction whatsoever. You shouldn't feel bad about it. There's no moral compunction. Disobeying the government when you smoke pot is the same thing as disobeying me, Jay Brennan. If I say everyone listening, you're not allowed to smoke pot, you can just ignore me. I don't have any authority over you. If government has no authority, you can feel free to do that too. It might not be prudent because they might catch you and beat you up and hurt you, but you have no moral duty to do it. So what it means is that, rather than having conscientious objection, you can just break any law that is requiring you to do something you don't have an independent duty to do. You can break whatever you want. So John Simmons' book, Moral Principles and Political Allegations, which is on our recommended introductory reading lists on libertarianism.org, came out what a quarter of a century ago, roughly, and is recognized as kind of like decimating the arguments for authority. So we've had this quarter century since then, and we've been very critical of the various arguments, but has anyone come up with anything good in that time? Are there any arguments that maybe don't ultimately work, but get a lot closer than the ones we've talked about so far today? There has been good work. So I don't think anything's convincing. I don't think any of these arguments actually succeed, but there have at least been people who are trying to get around the problems he's identified. So there's a guy named Joseph Raz who has arguments that have to do with grounding authority on the thought that some people know better than you. So you obey the government when obeying it, helps you achieve the goals that you had anyways. That's a really dumbed-down version of it. I think that problem is gonna end up, his argument's gonna end up looking very much like a hypothetical consent argument and gonna have some of the same problems, but... This is like a technocracy gets to rule your life type of thing? No, not that. He's a liberal, but just where is authority coming from? It has to do with the epistemic authority of government. But that's what the people who really know how to get stuff working have authority over it, yeah. David Esslin has an argument on behalf of democracy, and there are these kind of democratic arguments where they're trying to say that you can have an obligation to kind of obey majorities and then use that to kind of ground the authority of at least democracies, if not other kinds of governments. Kit Wellman has... He has actually a book debating John Simmons where he has kind of a good Samaritan type argument where he says, well, we have an obligation to rescue one another and avoid emergencies. And so, being in a state of nature would be a disaster, and so to avoid that, we need to have people... We need to have a state, which might be true. That's an empirical claim, but then we also need to obey the law. And I think the problem with that is gonna be the same thing with some of the other ones. So it's like, well, it doesn't yet get us to having a duty to obey the law. It just means that we should do things and establish an estate. It doesn't mean I have to obey every command that it gives, or even most of them. Yeah, so some of that, so you said it's an empirical question. It would be if the government is very bad at doing some of those things, like we talk about here at Cato all the time, they're very bad at providing all these services that say they're gonna provide, then maybe that argument is sunk by the empirics. Right, yeah, and it's important to recognize here. I mean, we've really only dealt with half the kind of problem about government. So here, we've just been talking about do you have to do what the government tells you to do because it tells you to do it? And I think the answer to this probably no. The reason I think it's no is because I've never seen a compelling argument on behalf of the other side. But the leaves open the question of should we have a government? That does good things for people. Yeah, and what should that government look like? That's not answered by these theories. There are other kinds of arguments, consequentialist arguments about how well anarchism works and the alternatives and so on. So that's not set by, that's really a separate set of questions. So I mean, again, just the default state in the field right now, political philosophy, is yes, we should have a government and it should be a more extensive government than you libertarians like, but you don't have a duty to obey the law itself. Yeah, and that's, it's fascinating because what you had said about the police officers, for example, resisting police officers and things that we talk about and highlight and is becoming very distressingly common. It's not that we're here saying you should go out and shoot police officers. No one's saying that. And the philosophers who also are against or skeptical of this type of obligation, they aren't saying you should go out and kill police officers. But as a philosophical idea, it's not the case that because they're police officers, they are exempt from certain other moral rules. And it's fascinating that somebody people in the Academy would seemingly believe that. Or maybe, I don't know, maybe it's more widespread belief than I think. You know, the police officer case is one where it has implications they haven't realized. So one of the implications is that you don't owe, since you don't have the duty to obey the law, then a lot of government agents aren't special and you don't owe them deference. So it's prudent to be differential to them because they'll hurt you if you aren't, but you don't owe it to them. So if there's no such thing as authority, then if a police officer pulls you over, say for a drug bust, and let's just say like you don't have an, like for the sake of argument, soon there's no obligation not to smoke pot, that that's not a duty you have as part of morality. But the government says you're not allowed to do it. And now they pull you over for a drug bust. They're gonna take your pot away. If you could magically just disappear from the scene so that they couldn't arrest you, you could feel free to do that. That's no problem. But everything is prudential after that. Yeah, everything just becomes prudence. Like you go along with the law, it's smart for you to go along with the law because they'll punish you if you don't, but you don't have a duty to do it. So do we think that, I mean, I know that Aaron likes to talk about this stuff a lot too, but this part of the libertarian philosophy is more prominent. We will be very clear. I mean, I, in lectures and speeches I say all the time that the extreme obvious immorality of putting someone in a cage for smoking a substance has not been adequately realized, right? And this would be, I think this is a pretty good policy argument in its own way because it's one of the things that happens as more people start to think that, at least about marijuana, is that that becomes a better argument or gay marriage. Like the prohibition of gay marriage is no longer a tenable thing. Or slavery. I mean, obviously slavery, subjugation of women. And it becomes an idea that people's view of not having, these laws not having any obligation to obey them and this not being a good source of authority is more of a popular idea than you might think. And maybe that's just a product of modern liberal democracy where we think that the state is limited, at least in a theory. We don't have the Leviathan or the divine right of kings. There's some sort of limit to what they can do, whether it's constitutional or otherwise. Right. And at the same time, I suspect that like as, if people come to believe that there is no state authority, they're likely to start thinking that maybe what the state is permitted to do should be curtailed to. You know, when they say, well, I don't have a duty to do it when they tell me to. Well, maybe they shouldn't be allowed to even try to force me to either. So a couple episodes ago, we did a podcast on Robert Nozick and he has, we didn't discuss in that podcast, but in his book, Anarchy, Satan Utopia, he has this kind of interesting thought experiment that's about these very questions we're talking about today that has to do with a public address system. Yeah, that's right. So he's responding to HLA Hart and also Rawls, because Rawls uses this argument as well, who said that there's a duty to obey the law because there's a duty of fair play. And the idea is that if people are putting together, like taking upon themselves to put together some sort of public benefit and you benefit from this thing, then you should do your part. You, as a matter of reciprocity, you owe something back here. So he has a simple thought experiment. He says, imagine that you're living in a town and the villagers and the other people in the town get together and create a public address system where every day somebody gets on and they start telling funny stories. They might sing songs. They might play old records. They might bring in comedy. Who knows what they do? And they address, put this over the, you know, they're broadcasting this to everybody. And let's say you even enjoy it, but you didn't agree to it. They just decided to take it upon themselves to do it. So then after 138 days, they come to you and they say, okay, it's your turn. And now you have to spend the day broadcasting whatever it is you want to do because we benefited. So you have to benefit us back in turn. That's a case where it just doesn't, and the knowledge exists, it just doesn't seem like I owe that to them. It doesn't seem like I have a duty to participate just because I benefited from it. Like I might prefer that it exists than it, than that it not, but it doesn't mean that they can make me do it. And this is, this is actually kind of a general problem with reciprocity. If I do something for you, you might owe me something in return, but I usually can't tell you exactly what you owe me. You just owe me sort of something, like reciprocity is kind of wide open ended like that. So if I, if I benefit from, say other human beings, like I benefit from society, maybe I owe something back to society at large, but it doesn't follow that I specifically owe them any particular thing like the duty to obey the law or the duty to pay certain taxes or the duty to serve in the military or the duty to vote. I mean, I just owe them something kind of. And of course, what they, if they get to tell you what you owe them, that just puts the authority problem back in play. Well, and also in these cases of reciprocity where there is kind of a symmetry in what's given and what's owed, it's, I mean, it's the same thing. So it's like, you know, if I take you out to launch, then if there is a specific thing you owe me, it's probably taking me out to launch at some point in the future. Whereas it, so that just means it doesn't make any sense as an argument that I got schooling or whatever. So what I owe is taxes or I might owe like schooling to other people. Yeah. Yeah. I mean, my journal view is if you have a debt to society, you pay it back by the following test. Is the world, is the society better off with you than without you over the course of your lifetime? If the answer is with you, you paid whatever debt you had. You know, if it's without you, then you probably didn't pay whatever debt you had. But you can just pay any sort of debt all sorts of ways. So some people pay it one way. Some people pay it another. There's no particular thing you have to do. And even like, you know, when we're trying to get this to a duty to obey the law, it's not clear I benefit from other people obeying all the laws. Like I benefit from other people not killing people, but they have a preexisting moral obligation not to murder one another. So that's not the reason why I'm not supposed to murder people. I don't see how I benefit from other people say obeying, well, the description. Driving on the right side of the road. Yeah. This is a good example. I'm glad we brought this up. So when we're talking about there being preexisting moral obligations, there can be cases where you have a duty to kind of comply with a well-functioning system, like an institution. And that sounds almost like a duty to obey the law, but it's not quite. So imagine this. We have a place where there's no law. There's no government. There's no enforcer of rules. It just happens to be the case that people drive on the right side of the road rather than the left. That's just kind of the convention. You should go along with the convention because you're going to hurt people if you don't, right? So you have a duty not to harm and you should go along with the convention because if you don't do it, it's going to mess up other people and harm them. So that's where that kind of thing comes from. But are we just saying that you could drive on the left side of the road and avoid harm if you were a very good driver? So are we talking about the likelihood of harm? I mean, that whole thing could happen and no one could get harmed. Yeah. I mean, there could be cases where like if you knew for sure that no one were like, no one's going to be on the road. You're like, you're omniscient and you know no one will be on the road. Then it's not clear why you have any obligation not to drive on that side. Now, but you know, in normal cases, if you just take it upon yourself to drive on the wrong side of the road, you're imposing a pretty high risk upon other people for all you know. So you shouldn't do it. But here it's about, it's a pre-existing, law-independent obligation to avoid harming people and it turns out giving a social convention that people have in order to avoid harming them. You need to drive on one side rather than another. If the fact that the government makes a law or something doesn't really make a difference here. It exists independently of the law. You know, so for example, let's take the cleft of action problem. Yeah, and you can illustrate this by suppose, you know, in the United States, we drive on the right-hand side. Suppose the government right now announces everyone has to drive on the left. They did this in Sweden. Yeah. But now imagine that like nobody actually, like everyone, like the government announces everyone has to drive on the left. But people didn't hear the law like and they all continue to drive on the right. You should continue to drive on the right. You shouldn't do what the law says. You should do the thing that actually is functioning. So that comes close to sounding like a duty to obey the law, but it's not. It's actually just a duty to avoid harming people. So I want to thank Jason for joining us today and I want to thank you for listening. Free Thoughts is a project of the Cato Institute's libertarianism.org and is produced by Evan Banks. If you have any questions about today's episode, you can find me on Twitter at A Ross P. That's A-R-O-S-S-P. And you can find me on Twitter at TC Burris. T-C-B-U-R-R-U-S. And visit us on the web at www.libertarianism.org.