Political Legitimacy and Just War Theory

by Joe Miller

Let me start by acknowledging that, yes, it is probably bad form to write on an assigned reading before those of you doing papers this week have turned them in. But I'm going to do it anyway. Sorry. You can always say that you had been planning to write just what I'd written but then had to change your topic at the last minute. Maybe you'll even make me feel guilty. More likely you'll just be bullshitting me.

Anyway, I wanted to record a few thoughts on David Luban's "Just War and Human Rights" (JSTOR subscription required). Luban rejects Walzer's legalist model of analyzing state sovereignty (see here for a discussion on the legalist vs. the classical model of JWT). Specifically, Luban argues that political sovereignty is morally bankrupt because it entirely ignores the question of legitimacy; on the legalist view, the most corrupt and oppressive of states has exactly the same political sovereignty as the best liberal democracies. Luban finds it strange to think that sovereignty should protect even heinous abuses of a state's citizens, particularly since justifications of sovereignty are typically supposed to proceed from the rights of citizens to govern themselves.

Luban thus draws an important distinction between nations and states. Nations, Luban argues, are formed by a horizontal contract. States are formed by a vertical contract. The difference between the two types of contracts is the difference between Locke and Hobbes; Lockean contracts are those "by which people bind themselves into a community prior to any state" while a Hobbesian contract is one "by which people set a sovereign over them" (Luban, 167). Horizontal contracts--the Lockean type--bind individuals into a nation. Vertical contracts legitimate a particular state. To talk of a nation-state, then, is to talk of a people who have come together as a nation and then agreed upon a particular sort of government.

The distinction here is important. Luban points out that there are many, many nations. There are, however, far fewer states, for a state can be legitimate if and only if the nation (or more specifically, those individuals who comprise a nation) have actually contracted for that particular form of government. Extremely oppressive regimes, then, are not going to enjoy the mantle of legitimacy. For Luban, though, only states have rights against aggression. It follows, then, that illegitimate regimes lack real political sovereignty. Luban's definition thus opens the door for humanitarian intervention. (That it also opens the door for neocolonialism and empire-building is a problem that he does not seem to consider.)

My worry about Luban's account (and several of you no doubt can see this coming) is that, if consent to a state is our standard for legitimacy and hence for rights against aggression, then it is not so terribly clear that any state has a right against aggression, for it is not at all obvious that any state has a government formed by the consent of the governed. Here I'm once again going to shill for John Simmons' arguments for anarchy (first outlined in Moral Principles and Political Obligations).

Luban has assumed that states are justified when they are the product of a vertical contract, or in other words, when the citizens have consented to the form of government in question. The question that arises, then, is this: if each person must demonstrate some sort of consent to the society, what form does that consent take? For some, that is easy. A naturalized citizen, for example, makes an explicit promise to obey the laws; in taking an oath of citizenship, such a person expressly consents to joining a nation. Similarly, those holding office or joining the military often take oaths which expressly bind them to uphold the Constitution. That act might be construed as an express consent of citizenship. But what about the vast majority of citizens, those who are born in a nation, who receive our citizenship by birth rather than by express choice and who never take an explicit oath of citizenship? How are they to demonstrate their consent. The usual answer here is that such citizens must tacitly consent.

Tacit consent, especially Locke’s version, has been the subject of a number of discussions. Actually, tacit consent first rears its head in Hobbes when he argues, in chapter 14, that “signs of consent are either express or by inference.” Hobbes does not clarify the matter much, nor does Locke, who has nonetheless made significant use of the notion. So the first thing that we should do is to make it clear just what it is that we mean by consenting. First we note that consent is something that is given to the actions of others (I consent to your leaving class early, say). Moreover, consent must be both intentional and voluntary. I cannot, in other words, consent to an action if I do not know that I have consented (so I cannot tell you after the fact that your attending class today counts as your having consented to my cutting off your arm), nor can you consent to an action if I force you to do it (by holding a gun to your head or by threatening your mother).

Tacit consent is thus a kind of voluntary and intentional approval of someone's action, and it is given by remaining silent or inactive. The president of a club who announces that the meeting will be rescheduled unless anyone objects is appealing to tacit consent; when she pauses and no one speaks up, she has received tacit consent to reschedule the meeting. Still, there remains the important question of determining when tacit consent actually has been given. It is here that Simmons is helpful, for he offers five criteria that tacit consent must meet (Simmons pp. 80-1).

1. The situation must be such that it is perfectly clear that consent is appropriate and that the individual is aware of this.
2. There must be a definite period of reasonable duration when objections or expressions of dissent are invited or clearly appropriate, and the acceptable means of expressing this dissent must be understood by or made known to the potential consentor.
3. The point at which expressions of dissent are no longer acceptable must be obvious or made clear in some way to the potential consentor.
4. The means acceptable for indicating dissent must be reasonable and reasonably easily performed.
5. The consequences of dissent cannot be extremely detrimental to the potential consentor.

The problem, of course, is that given Simmons' criteria, there do not seem to be any actions that are undertaken by all citizens such that they might count as giving tacit consent. Simmons considers a number of possibilities (owning property, voting, using government services) and systematically rejects each. If you're looking for details here, read chapters 3 and 4 in Moral Principles. For my purposes here, it is enough to point out that Simmons offers fairly compelling reasons for thinking that no actual state is justified via tacit consent (or via explicit consent either for that matter).

That leaves us in something of a bind. If vertical contracts are required for legitimacy and if legitimacy is required for a state to have a right not to be aggressed against, then it looks as if no state has such a right since it also looks as if no state is legitimate via a vertical contract. In other words, if the set of legitimate states is null, then a JWT that applies only to legitimate states is really rather useless. Still, Luban is right to point out that there is an important moral difference between a liberal democracy, say, and the Taliban. Our JWT should, in some way, take that difference into account. The strict legalist model is unsatisfactory, but it does at least have the benefit of applying to some existing entities.

For the record, most of my research these days focuses on trying to incorporate insights like Luban's into a legalist model of JWT. I'll let you know how that all works out.