THE VOLUNTARISTIC STATE:

AN ACTUAL CONSENT ACCOUNT OF LEGITIMATE

AUTHORITY

By

Daniel Corsano

Submitted to

Central European University

Department of Philosophy

In partial fulfillment of the requirements for the degree of

Master of Arts in Philosophy

Supervisor: Simon Rippon

i

Budapest, Hungary

2015.

ii

Abstract

The aim of this thesis is to articulate an actual consent

account of legitimate government as appointed by a free

association of people, to protect them from harm, with the

power to use coercion both to apprehend wrongdoers and to

collect taxes in order to finance its activities in the most

efficient way possible. The account itself is articulated in

section III. 2, and depends on a form of moral skepticism

defended in section II. 1, and an argument for the legitimacy

of certain forms of coercion articulated in section II. 3,

claiming that those who non-consent to an authority whose only

purpose is to provide protection from harm to all who consent

to it have no moral standing to protest being coerced by the

authority as it carries out its duty. This argument is able to

justify only a minimal state, or the minimal core of a larger,

altogether non-voluntaristic state, concerned with providing

protection from harm, though it doesn’t exclude the possibility

of justifying further government powers with additional

arguments. Section III. 3 discusses some lines of argument for

supplementing the voluntaristic state with a regime of private

property.1

1 Throughout this thesis I will restrict the use of the term „voluntarism”and „voluntaristic government” to refer to the actual consent account oflegitimate authority I defend, and the form of government it justifies.

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Contents

Abstract.....................................................i

I. Introduction..............................................1

II. Moral Principles and Legitimacy..........................5

II. 1. Mackie’s Arguments Against Moral Objectivism....................7

II. 2. Moral Skepticism and Legitimacy...............................9

II. 3. Universalizability and Legitimate Punishment....................12

III. Voluntarism............................................18

III. 1. Theories of Consent........................................18

III. 2. The Actual Consent Account of Legitimate Authority...............20

III. 3. Private Property and Voluntarism.............................23

III. 3. 1. Optional Private Property:.......................24

III. 3. 2. Illegitimate Private Property:...................26

III. 3. 3. Legitimately Enforced Private Property:..........26

IV. Conclusion..............................................28

Works Cited.................................................31

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I. Introduction

The purpose of this introductory chapter is to outline the

structure of the thesis, to articulate the question of the

legitimacy of authority, define the main concepts to be

employed, and to sketch the voluntaristic account of

legitimacy. Chapter II lays the meta-ethical groundwork,

arguing for a moderate form of moral skepticism, according to

which accounts of legitimacy based on particular moral

principles are unable to provide a universally accessible and

acceptable justification in a morally pluralistic society.

Chapter III will present the actual consent account of

legitimate authority, show that the only government power it is

able to justify is protection from harm, and suggest methods

for integrating a regime of private property into the

voluntaristic state. Chapter IV will discuss the relationship

of the voluntaristic theory of legitimate authority to

political practice and contemporary systems of government.

I believe that the clearest way to state the question of

legitimate authority is in line with Max Weber’s definition of

government, which has become very prominent in contemporary

political philosophy. According to it, a government is an

organization that successfully claims the monopoly of the

legitimate use of physical force within a given territory.2 An

organization with the capacity to maintain public order and

secure the obedience of most people by issuing commands backed

by sanctions has de facto authority,3 and Weber’s definition

2 Weber 1946: 82-83.3 Though the central terms (authority, legitimacy, obligation etc.) are

generally the same throughout the literature, there are certain significant1

requires two more things of such an organization: (1) that the

authority is legitimate, and (2) that it successfully claims

monopoly on the use of force. Theories of legitimate authority

seek to elaborate on the first condition. The second condition

is generally assumed, and it may mean two very different

things: that the government is the singular or strongest de facto

authority over a region or population, or that civilians are

not permitted to do the work of the police. I believe that the

former, as far as it is relevant, is already contained in the

definition of de facto authority, while the latter is not true;

in III. 2 I will argue that the legality of a certain degree of

executive vigilantism is not only permissible, but necessary

under a voluntaristic government.

Legitimate government is often defined as that which one has

an obligation to obey, and theories of legitimacy often posit

an obligation to obey the government if certain conditions

obtain, and seek to show that it applies to all subjects,

irrespective of their personal convictions. In II. 1 I will

argue against there being reliable knowledge of the existence

and content of such objectively normatively binding

obligations, and the voluntaristic theory of legitimacy I

variations in the meanings with which they are employed, so I shouldclarify my use of the terminology at this early stage. Some distinguishbetween a legitimate government and a justified government (Simmons 2001:122-157), between a duty and an obligation to obey government (Rawls 1999a:97). Others, including Max Weber (also: Hart 1961), use “authority” forwhat I call “legitimate authority”, while a legitimate government and agovernment one has an obligation to obey is usually taken to mean the same.The first two distinctions do not apply to the wording of this thesis, butthe latter two are absolutely necessary, since the central question isarticulated as the difference between legitimate and illegitimateauthority, and since the answer I propose, voluntarism, justifies authoritywithout positing an obligation to obey.

2

advance will accordingly aim to justify government without

positing an obligation to obey. I will instead define the

legitimacy of authority in the following way, which doesn’t

refer to obligation, but would permit justification by an

objectively normatively binding obligation to obey as well, if

its existence and content could be verified.

The actions of an authority are legitimate towards all subjects

who cannot consistently protest them on moral grounds.

Few dispute that consent establishes legitimacy because of the

fundamental inconsistency involved in freely agreeing to

something and opposing it at the same time (which I will

further discuss in II. 2, II. 3 and III. 2). This inconsistency

is not a result of the way I define legitimacy; those who think

about legitimacy in terms of an obligation to obey tend to

think that consenting to authority establishes an obligation.

The most common reason for rejecting consent as a basis of

legitimacy is that a fully voluntaristic government is

generally assumed to be unfeasible,4 based on a form of what I

will call the Argument Against Voluntarism: if what justifies

government is that it is consented to, then apprehending

criminals who don’t want to be apprehended and collecting taxes

from unwilling subjects are illegitimate acts, since they are

done to people who protest them. On the other hand, if the

government is only permitted to enforce its laws with the

consent of the lawbreakers (which they would presumably not

give in most cases), it cannot maintain public order and loses

4Wolff 1998: chap. 1; Simmons 2001: 104; Simmons 1996: 21; Rawls 1999a:13.

3

de facto authority. Therefore, the argument goes, consent cannot

(completely) justify de facto authority.

This incompatibility seems to be intrinsic to the notion of

de facto authority, since enforcing laws implies a lack of

compliance on the part of the coerced. Most consent theories –

some of them will be discussed in detail in III. 1 –, aim to

avoid this problem by positing pre-existent moral obligations

to consent to obey the government under certain conditions. I,

on the other hand, argue in II. 3 and III. 2, from the logical

condition of universalizability for moral judgments, that, in

cases I will call legitimate coercion, non-consent to the

covenant of protection from harm enforced by the government

entails consent to the means of enforcement.

Since the voluntaristic government I propose is permitted to

engage only in legitimate coercion, though anyone is free to

non-consent with it, non-consenters have no moral standing to

protest it, and therefore its authority is completely

justified. This distinction is made possible by the crucial

difference between moral protest and non-consent, which will be

discussed in detail in II. 1 and II. 3, that the former is a

universalizable prescription of opposition, while the latter is

non-universalizable. Apart from establishing this distinction,

my account depends on two arguments: the argument for moral

skepticism in II. 1, the argument for the necessary

universalizability of moral prescriptions, and the account of

legitimate coercion derived from it in II. 3. These together

form the voluntaristic account of legitimate government,

articulated in III 2.

4

One form of argument for a posteriori anarchism (the view

according to which legitimate government is not a theoretical

impossibility, but all existing enterprises to justify it fail)

utilizes the Argument Against Voluntarism: (1) only consent

creates legitimacy, and (2) consent cannot justify de facto

authority, (C.) therefore no de facto authority is legitimate.5

Others opted for a moderate view called philosophical

anarchism,6 which agrees with the anarchists that there is no

generally legitimate government, but differentiates general

legitimacy and the special legitimacy of specific transactions

between a government and its citizens, which is a distinction I

will also make use of. (1) A government may be legitimate in

its actions towards specific subjects (for example those who

consent to it), or in some of its powers towards all of its

subjects (those justified in some general way), without being

generally legitimate, which would require the legitimacy of all

of its possible legal actions, towards all possible subjects.7

Based on this distinction they claim that (2) some governments

are more legitimate than others, and that (3) living in a

reasonably legitimate government is still better than the state

of nature, and argue that (C.) one may be justified in

supporting a government both against the alternative of another

5 Wolff 1998: 4; Huemer 2013.6 Simmons 2001: 104.7 Legitimacy is defined in terms of the possibility of consistent moral

protest. If the requirement was only that there was no consistent moralprotest, a government with illegitimate powers but no opportunity to usethem could be legitimate, and or one could become legitimate if a those whoshare the moral prescriptions justifying the government’s powers would bandtogether and kill everyone who doesn’t, provided that the prescriptionswould permit such behavior.

5

government or of anarchy, without believing it (or any other

government) to be generally legitimate.

The voluntaristic account of legitimacy, if successful,

falsifies both of the above arguments by disproving the premise

that voluntarism is incompatible with de facto authority.

Nevertheless, the spirit of philosophical anarchism is one I am

very sympathetic to, and will make significant use of in a

modified form in IV. As I will further elaborate in the

conclusion, voluntarism is a descriptive, and not a normative

theory, which means that it is not a guide to how people ought

to be governed. In fact, the moral skepticism argued for in II.

1 excludes the possibility of a normative theory of legitimacy,

since a preference for a legitimate instead of an illegitimate

government is itself contingent on a moral judgment. What the

theory aims to do is to describe the property of legitimacy –

which is merely one of the things one may choose to desire from

authority – and show how it can come to apply to de facto

authority. What form of government to support is a choice

underdetermined by reason, to be made individually, by

assessing the relative strengths and compatibility of all of

one’s preferences.

6

II. Morality and Legitimacy

Meta-ethical theories can have enormous practical consequences.

Moral skepticism is often understood as a challenge to be

surmounted by the political theorist before any substantial

theorizing can be done. If some moral truths, or, to be exact,

objectively normatively binding prescriptions (abbreviated from

now as objective prescriptions), are not to be found, the

enterprise of normative political theory is a non-sequitur: what

can we say about how political society ought to be without

access to facts about how things ought to be or what people

ought to do? The central claim of this chapter, and one of the

main points of this thesis, is that moral skepticism is the

most plausible meta-ethical view, and it excludes reliable

access to facts about how people ought to be governed, but

there is nevertheless a lot to be said about the legitimacy of

authority.

II. 1 argues, following Mackie’s arguments against moral

objectivism, for a moderate form of skepticism, according to

which we are not in a position to know whether there are

objective prescriptions, and what they are, therefore what

moral prescriptions one commits to is underdetermined by

reason. II. 2 will show that, even though a moral justification

of government could work if a method of verifying the existence

and content of moral truths was found, in the current situation

of pervasive moral disagreement, such a justification is only

acceptable to those who already commit to the moral

prescriptions forming its basis. A justification of government

based on particular moral convictions fails to enlist general

7

agreement or to justify authority in terms generally understood

and agreed to in a society with a genuine plurality of moral

convictions, so the best it can achieve is special legitimacy,

towards the portion of society committed to the moral

principles it is based on. II. 3 will argue for the possibility

of legitimate coercion, from the formal principle that all

moral prescriptions must necessarily be universalizable, which

will form the basis of the voluntaristic account of legitimate

authority.

II. 1. Moral Skepticism

Moral judgments are universalizable prescriptions, expressible

in ought-claims, such as “one ought not to murder”. That they

are prescriptions means that, like imperatives, they are to be

fulfilled by behaving accordingly, instead of being in accord

with reality, like descriptions. Universalizability means that

they must apply to all situations which are identical in the

properties prompting the prescription. Promising and consenting

are also forms of prescription, but they are not necessarily

universalizable, since they apply only to single, or a finite

amount of cases: I can consent to someone using my guitar

today, but I don’t make any commitments thereby for future

situations, however similar they might be, nor commit to any

view about how people in general should behave in these kinds

of situations. However, if I commit to “one ought to lend a

guitar to a friend in need”, I prescribe to always lend my

guitar to anyone who qualifies as a friend in need, and,

furthermore, I express the view that everyone else ought to do

so as well, with their own guitars and friends in need.

8

An objective prescription is normatively binding irrespective

of having committed to the prescription, or believing that what

it requires is the right thing to do.8 If the moral

prescription “one ought to lend a guitar to a friend in need”

is objective, everyone who doesn’t follow it is wrong, even if

they do not think so. If it is subjective, it only applies to

those who voluntarily commit to it. People who do not follow

the prescription simply have different opinions; they disagree

with me, and I might even dislike them, but they are not, or at

least not as far as I can reliably determine, any more wrong

than people who have a different taste in music.

Mackie articulates two arguments against the objectivity of

prescriptions: the argument from relativism,9 and the argument

from metaphysical queerness.10 I will outline the basic

structure of both arguments, but instead of the strong

conclusion of all moral claims being false reached by Mackie, I

will only assume a moderate form of moral skepticism. The meta-

ethical stance of this thesis doesn’t deny the metaphysical

view that there are objective prescriptions, nor the epistemic

view that some people have access to them, but claims that

neither can be verified. As long as people who claim that there

are objective prescriptions, and that they have access to them,

cannot verify this in a way accessible to the rest, there is no

fault in not ascribing to them. This position – unlike Mackie’s

–, doesn’t deny moral realism, but places the burden of proof

on the moral realist, and claims that, as long as alleged moral

8 Mackie 1977: 26-7.9 Mackie 1977: 36.10 Mackie 1977: 38.

9

truths are unverifiable, moral skepticism is the most appealing

meta-ethical theory, since it avoids dubious metaphysical and

epistemic commitments.

As complicated as the wording of the above view is, it is a

very straightforward, and, I believe, intuitive description of

moral practice. What it aims to establish is that moral

disagreements are often, though, as I will argue in II. 3, not

always, reasonable disagreements, in the sense that they don’t

arise because one of the conflicting views is built on false

information or faulty reasoning, and in these cases neither

party is to be blamed for the disagreement. It might be true,

for example, that the moral standpoint expressed in the New

Testament (let’s assume that it is a singular and consistent

moral standpoint), is the only objectively true one, and that

certain people (let’s call them Christians) are able to

perceive this through some kind of moral or religious

faculty.11 Even if this is so, and there is no way to prove

that it isn’t, until the Christians find a way to prove that

they are right in terms I, as a non-Christian, can understand

without using the faculty, or until they find a way to activate

my faculty, I cannot be blamed for disagreeing with them. From

my perspective, the perspective of a convinced atheist and

moral skeptic devoted to truth, lacking a working moral or

religious faculty or proof that the Christians have one, they

just seem to be ordinary people making leaps of faith and

asking me to follow them.

The Argument from Relativity begins with an empirical

observation: that there is a large amount of variation in moral11 Audi 2005; Ridge 2006: Section 3.

10

views, and they are characterized with an unusual degree of

intractability. Mackie claims that it is a better explanation

of this observation that particular moral standpoints “reflect

adherence to and participation in different ways of life,”12

than that there is a realm of objective moral facts to which

some cultures and people have inferior epistemic access. He

uses the example of monogamy: is it really more plausible to

think that it is valued in some cultures because they have

access to these elusive moral facts, than that the custom of

monogamy developed in those cultures and not in others, and

their respective moral views simply emerged as a result?13

Mackie concludes that, since there are many known cases of

customs influencing moral views but no straightforward

metaphysical or epistemic account of the alternative, we should

adopt the latter hypothesis, and the burden of proof is on the

side of the moral realist. He proposes moral error-theory,

according to which all ordinary moral claims are false, because

they purport to describe an objective reality that doesn’t

exist.14 There are two common ways to attack the argument:15 one

can either dispute the empirical observation, and claim that

moral disagreement is really not that pervasive, or acknowledge

its reality, but dispute that error theory is the best

explanation for it.

The Argument from Metaphysical Queerness has two interwoven

strands: a metaphysical and an epistemic, and together they

form an elaboration on why, according to the argument from

12 Mackie 1977: 36.13 Mackie 1977: 36.14 Mackie 1977: 35, 47-8.15 Mackie 1977: 37; also: Brink 1984; Loeb 1998.

11

relativism, the hypothesis of moral objectivism is not an

appealing explanation of the phenomenon of morality. The

metaphysical strand states that a moral property must

essentially be something very unusual, and its instantiation

requires us to posit “qualities or relations of a very strange

sort, utterly different from anything else in the universe.”16

Objective values are usually supposed to be intrinsically

action-guiding and motivating, and if so, they are the only

elements of reality with this feature. The epistemic strand

claims that obtaining knowledge of such strange properties

would require “some special faculty of moral perception or

intuition, utterly different from our ordinary ways of knowing

everything else.”17 The epistemic strand depends on the

metaphysical strand to establish the “weirdness” of moral

properties, since if moral qualities or relations indeed

inhabit a special metaphysical realm, access to them must

require some special faculty. The two strands together further

strengthen the hypothesis that metaphysically laden morality

emerged as the result of customs, and not the converse, since

it seems to explain moral practice just as well without

positing extra entities and faculties.

I believe that the arguments successfully place the burden of

proof on the moral realist. I don’t see how the reality of

pervasive moral disagreement could be denied, especially when

it comes to the moral judgments relevant to politics; one need

only compare the theories of legitimate authority mentioned in

this thesis, or look at the table of contents of a more

16 Mackie 1977: 38.17 ibid.

12

extensive discussion of them to see how deeply the highest

authorities on the subject disagree.18 I also believe that the

metaphysical and epistemic queerness of objective prescriptions

can be established. Moral disagreements may be due to faulty

reasoning or information, but we can often establish with

certainty that they are not. People who agree completely

regarding the non-moral properties of a case often disagree on

its moral properties, and they have indeed been doing so for

thousands of years, without finding any way to simply show each

other that they are right.

This intractability seems to be specific to moral and

aesthetic disagreements: when people disagree on the color of a

physical object for example, it either happens because one of

them has a faulty color perception, which is easy to verify

with tests, or because they use the names of colors

differently. But it is possible that they indeed see the same

color, and one of them finds it beautiful, while the other

repulsive, and it is also possible that two people agree that

violence in self-defense is acceptable, which is in itself not

evident, and they also agree regarding the non-moral properties

of a specific case, because they both know it from hearing the

same description, but still disagree whether the amount or form

of violence was justified. There might as well be similar

errors of perception or language in the case of moral or

aesthetic disagreements, but if so, we seem to lack a reliable

method of tracing them, and, as long as this is so, I believe

that the most appealing account of these cases is that people

choose different ways of life and value different things, and18 For example: Simmons 2001.

13

the resulting moral judgments are not right or wrong, because

they are underdetermined by reason and observation.

The point on which I disagree with Mackie is that error-

theory is the best interpretation of these observations. The

arguments succeed to establish that if there are moral truths,

and if some people have access to them, we (who are without

such capacities) are in no position to know this. But Mackie’s

error-theory seems to assume two further things: that we know

that there are in fact no objective prescriptions and therefore

no access to them, and that all moral thought is essentially

pervaded by dependence on them.19 The arguments for moral

skepticism don’t prove the former, though they make it seem

more plausible than the contrary, and I don’t see how the

latter could be verified, or what use this would be, since non-

philosophers don’t tend to think of their moral convictions in

these highly abstract terms, and even if they would, the

falsity of a popular meta-ethical position wouldn’t exclude the

possibility that a different one is correct. I believe that

what the arguments establish is that the most appealing meta-

ethical hypothesis is that of simple skepticism regarding the

existence of and reliable access to objective prescriptions.

II. 2. Moral Skepticism and Legitimacy

Moral accounts of legitimate government, which are very

prominent in the modern liberal tradition, justify government

by positing some kind of objectively normatively binding moral

obligation. They are built on versions of the following

argumentative structure: (1) If all actual or possible citizens

19 Mackie 1977: 49.14

of a state are obliged to obey its government, it is generally

legitimate. (2) An objectively normatively binding obligation

to obey applies to all possible subjects of a particular

government, (C.) therefore the government is generally

legitimate.

I have anticipated in the introductory chapter that I am

among those who aim to justify government without positing an

obligation to obey,20 but I see (1) as uncontroversial as the

general definition of legitimacy I have adopted, since it

follows from it: if one is obliged to obey a government, and

one knows it, one cannot consistently protest the government on

moral grounds. Moral skepticism is evidently incompatible with

(2), and therefore it rules out moral accounts of legitimacy.

The fair play account,21 the associative obligation account22

and the natural duty account23 are clear cases of the above

argumentative structure, claiming their namesake obligations in

(2), but similar premises figure in other accounts as well,

such as normative or hypothetical consent, which will be

discussed in III. 1 This thesis will not examine any moral

accounts of legitimacy in detail, because, though there are

significant and interesting variations, they all essentially

depend on objective prescriptions, to which moral skepticism

denies reliable access.

If moral skepticism is true, the best moral justifications of

authority can hope for is special legitimacy, towards all20 In my case this position is a consequence of moral skepticism, but it

can figure in a moral account of legitimacy as well (for example: Applbaum2010).

21 Rawls 1999b.22 Dworkin 2011: 304, 319; also: Wellman 1997.23 Rawls 1999a 115; Stilz 2009; Waldron 1993.

15

subjects who already subscribe to the prescriptions they claim

to be objective in (2). This might be a very large portion of

an average political society, since liberal accounts of

legitimate government are expressly aimed at finding a common

ground of widely shared moral beliefs. But, since there is no

reliable access to objective prescriptions, there is always at

least the possibility of consistently protesting a government

claiming legitimacy based on moral grounds, and therefore it

cannot be generally legitimate.

Mackie, strangely, doesn’t seem to acknowledge this

consequence of his arguments. After laying them out, he goes on

to claim that Rawls’s method of reflective equilibrium and the

resulting theory of justice is in fact a valid way of finding

guiding principles for society, despite the falsity of moral

objectivism.24 He is right in the sense that, if his error

theory is true, and there are no moral prescriptions (or if my

more moderate, skeptical position is true), there certainly

cannot be anything objectively morally wrong in creating or

supporting a Rawlsian society, but the reasoning which drives

one to do so is nevertheless factually wrong in positing

objective prescriptions, and the resulting society is not

generally legitimate.

Rawls famously articulated the method of reflective

equilibrium to arrive at the basic principles of justice: that

they are the ones people behind a veil of ignorance,

unconscious of their future social status and capabilities and

all other morally arbitrary factors, would choose on rationally

selfish grounds as the principles based on which society is to24 Mackie 1977: 95.

16

be constructed.25 These rational principles then, in real life,

become the moral prescriptions of justice, which are objective,

because of the rational method by which they have been arrived

at. Rawls then goes on to advance something like a hypothetical

consent account of legitimate government by postulating that

the principles such people would choose are: (1) that “each

person is to have an equal right to the most extensive scheme

of equal basic liberties compatible with a similar scheme of

liberties for others" and (2) that social and economic

inequalities are to be arranged in a way that they are (2/a) to

the greatest benefit to the least-advantaged of society, and

(2/b) that offices and positions must be open to everyone under

conditions of fair equality of opportunity.26

This method depends on a number of assumptions, which are

incompatible with moral skepticism. The first and perhaps most

significant one is that people behind the veil of ignorance

would come up with one specific set of principles. I believe

that the ingenuity of the thought experiment is that honestly

and meticulously thinking it through reveals one’s innermost

moral convictions, by excluding all morally arbitrary

considerations, and what we get from Rawls’s account of it are

therefore his own moral convictions. Others, most notably Peter

Harsányi, have argued that the principles reached behind the

veil of ignorance would in fact be those of utilitarianism,27

and I am confident that Robert Nozick would, if he is truly

committed to them, think that the principles he advocated in

25 Rawls 1999b: 259.26 Rawls 1999b: 53-4.27 Harsányi 1975; also: Hammond 2013.

17

Anarchy, State, Utopia would be chosen. I am, on the other hand, as a

moral skeptic, inclined to doubt whether people would be any

more likely to reach a moral consensus behind the veil of

ignorance than outside of it, and to deny the objectivity of

any prescription they would come to agree upon. If, as the

previous section argues, reason doesn’t tell us what we ought

to do, the veil of ignorance would not solve moral

disagreements. To claim otherwise is to claim that people who

understand the method of reflective equilibrium but

nevertheless disagree with Rawls on the right moral principles

do so either out of ignorance or malice, which would be a

particularly unconvincing form of argumentum ad hominem.

The second assumption, which Hare also noted and rejected,28

is the objectivity of the prescription that we ought to commit

to the principles reached by the method of reflective

equilibrium.29 If people behind the veil of ignorance would

indeed come to agree on a specific set of principles, and we

would somehow know what they are, they would still be

prescriptions, and therefore, according to the arguments of the

previous section, they wouldn’t have normative force over

people who don’t voluntarily commit to them. The metaphysical

status of objective prescriptions and epistemic access to them

would be just as weird behind the veil of ignorance as outside

of it.

Legitimacy derived from consent is untouched by moral

skepticism, since it doesn’t assume the objectivity of any

particular prescription, and it is a fact whether someone has

28 Hare 1981: 12.29 Rawls 1999b: 13.

18

consented to something or not. As I have already noted, consent

and promise are forms of prescription, but distinct from moral

prescriptions in not being necessarily universalizable. To

consent to something is to voluntarily prescribe not to protest

something, while to promise is to prescribe an action. If one

utters “I consent” or “I promise” involuntarily, or without

meaning to relinquish protest or prescribe action, one is not

really consenting or promising. That consent establishes

legitimacy follows directly from the definitions, and is rarely

contested: (1) To consent to something is to relinquish

protest. (2) What cannot be consistently protested on moral

grounds is legitimate. (C.) Consenting to actions of an

authority makes them legitimate. As I have already noted, the

form of voluntarism advocated in this thesis doesn’t claim an

obligation to obey the government, and it also doesn’t claim an

obligation to consent or non-consent to authority, it claims

only that one cannot consent to and protest something at the

same time.

Mackie’s arguments don’t constitute a decisive proof of the

non-existence of objective prescriptions, and I don’t see how

that could be possible, but I believe that they succeed in

shifting the burden of proof to the side of the moral realist.

If a stronger case is made for moral realism than for moral

skepticism, and for the objectivity of a specific set of

prescriptions (for verifying that there are objective

prescriptions without reliable access to them amounts to

little), that would make moral accounts of legitimacy which

claim these moral truths in (2) very appealing. The line of

19

argument of this thesis however proceeds on the assumption that

this is not so, and, accordingly, the conclusions of this

section and what follows are conditional on the skepticism

argued for in the previous section.

II. 3. Universalizability and Legitimate Punishment

Hare also denied the objectivity of moral prescriptions, but

argued that the formal requirement of universalizability has

significant practical consequences, and can ground an account

of moral disagreement, and even a form of preference-

utilitarianism. His meta-ethical theory, which was strongly

motivated by Kant’s concept of categorical imperative,30 aims,

as it is expressed in the title of Freedom and Reason,31 to

establish that we have the personal freedom to commit or non-

commit to moral prescriptions, since they are not objectively

normatively binding, but in doing so we are constrained by

reason, which requires our judgments to be consistent and

universalizable. This section will argue that the practical

consequences of the condition of universalizability are indeed

more than what Mackie admits, less than Hare’s preference

utilitarianism, and just enough to ground a voluntaristic

account of legitimate government by justifying certain forms of

coercion.

A moral prescription such as “murder is wrong”, or “one ought

not to murder”, has a descriptive element.32 It is, however,

primarily not a description of “murder” as having the property

of “wrongness”, but something like the imperative “do not30 Hare 1965: 34.31 Hare 1965.32 Hare 1965: 7-10.

20

murder!”, which is to be fulfilled by action (or, in this case,

the omission of a type of action), and not by applying to a

state of affairs, as in the case of a description. What Hare

meant by prescriptions containing a descriptive element is

under some controversy, and he admits that “[i]t is hard to

deny that this is so, but harder still to say what it means”,33

but he is usually interpreted as meaning that the descriptive

element is the linguistic form of “murder is wrong”.34

The presence of a descriptive element gives rise to the

universalizability of moral prescriptions because it is a

necessary feature of descriptions:35 if I say that the sky is

blue, it means that anything with the properties by virtue of

which I call the sky blue (say, the wavelength of the light

reflected into my eyes from it), must also be called blue.

Accordingly, if I call something morally good or bad, I must

make the same judgment about anything identical in the

properties that prompted the judgment. When one judges murder

to be wrong, one doesn’t just judge a particular case, but

connects the non-moral property of being an instance of murder

with the moral property of wrongness, and consequently all

states of affairs that are revealed to be instances of murder

also come to be judged wrong. To put it more formally, there is

a contradiction arising from the meaning of “ought” in “One

ought to X if S & S& one ought not to X,” where X is a kind of

action and S is a kind of situation prompting the prescription.

33 Hare 1965: 6.34 Ludwig 2004.35 Hare 1965: 10-2, 19.

21

Upon universalizing a prescription, one may be repulsed by

its consequences for hypothetical or real cases,36 or find it

inconsistent with other prescriptions. Because they are

essentially fulfilled by action, prescriptions can also be in

contradiction with actions they prohibit or the omission of

prescribed actions. One cannot be committed to “one ought not

to murder” and intentionally commit an act of murder at the

same time. Additionally, moral prescriptions are often complex,

depending heavily on factual premises and reasoning, both of

which may be shown incorrect, which allows many moral

disagreements to be decided without appealing to objective

prescriptions.

Just as science, seriously pursued, is the search for hypotheses

and the testing of them by the attempt to falsify their

particular consequences, so morals, as a serious endeavor,

consists in the search for principles and the testing of them

against particular cases […] by following out their consequences

and seeing whether we can accept them.37

Mackie agrees with Hare that universalizability requires moral

prescriptions to be made in general terms, without referring to

particulars.38 The egoist principle “others ought not to harm

me, but it is alright if I harm others,” is, for example, not

universalizable, and therefore not a moral prescription,

because it differentiates cases where one ought and ought not

to harm using the proper name “I”, and not in virtue of their

general properties. Mackie notes, however, that this first

36 Hare 1965: 102.37 Hare 1965: 92; 87-88.38 Mackie 1977: 83-90.

22

stage of universalizability can be avoided rather easily by

making prescriptions to similar effect in general terms.39

Prescriptions designed to favor arbitrary groups of people,

such as racism, pass the first stage of universalizability. A

Nazi, by which I mean someone who morally condones the actions

of the Third Reich, could articulate the following

prescription, which passes the first stage of

universalizability: “Jewish people are inferior, and we ought

to exterminate inferior people.”

Hare argues that there are further stages of

universalizability. At the second stage one must put one’s self

in the place of others before forming prescriptions:40 a Nazi

should stick to his moral prescriptions even if he himself

would turn out to be Jewish. What this amounts to is a form of

the New Testament’s Golden Rule: do unto others as you would

have them do unto you. Hare notes that few Nazis would

prescribe that they be exterminated if they turned out to be

Jewish, which makes their prescriptions non-universalizable,

but, unfortunately, this is something we can only hypothesize

about in real cases, and therefore is of little practical

import.

Hare derives a third stage of universalizability from the

second, which takes the form of preference-utilitarianism: when

making moral commitments, one should take the preferences of

everyone into account with the same weight, including

hypothetical ones.41 Mackie accepts that prescriptions must

39 Mackie 1977: 89-90.40 Hare 1965: 160.41 Hare 1965: 44.

23

necessarily be universalizable, and agrees with Hare’s

assessment of the first stage, but deems, with some apparent

hesitation, that the second stage, consisting in “ruling out

generic differences which one is tempted to regard as morally

relevant only because of one’s particular mental or physical

qualities or condition”,42 is controversial. He is convinced

that the third stage, which consists in giving equal weight to

everyone’s preferences, is plainly not a formal necessity, and

concludes his investigation of the condition of

universalizability by claiming that it is indeed a formal

requirement on prescriptions, but not a significant one, and

that it can easily be avoided by making “unfair” but

universalizable prescriptions, designed to refer to particulars

in general terms, or simply by not making moral prescriptions

at all.

I agree with Mackie that the third stage is not a formal

requirement, but believe that the second stage is indeed

required by universalizability, even if it is not very useful

without the third: there is no reason why a prescription should

be required to hold in all real cases, but not possible ones,

since the Nazi wants to exterminate Jewish people based on them

being Jewish, which is true independently of them being actual

or possible. As long as a moral prescription doesn’t refer to

existence or possibility, and they rarely do, these are not

among the things by virtue of which they apply. I will argue,

however, that the kind of prescriptions I called unfair above

tend to have severe consequences by virtue of only the first

42 Mackie 1977: 92-4, 101-2.24

stage of universalization, and this provides strong prudential

reasons to avoid them.

The problem with “Jewish people are inferior, and we ought to

exterminate inferior people” is, I believe, more

straightforward than Hare claims. The prescription depends on

the factual premise that Jews are inferior, which consists of a

definition of the property of inferiority and the assumption

that it applies to Jews. Inferiority can mean many things, but

it seems that Jews are in fact not inferior in the ways

historical Nazis claimed they are. Let’s suppose, however, that

the Nazi succeeds to establish that Jews are inferior in some

sense, in which case the next step is to prescribe their

extermination. The definition of inferiority, presumably,

doesn’t contain anything about to-be-exterminated-ness, and

therefore that inferior people ought to be exterminated is

established only by the moral prescription that “inferior

people ought to be exterminated”, which is in fact the value

judgment at the core of this simplified version of Nazism.

The prescription to exterminate inferior people can be

adopted independently or derived from some other prescription,

such as “the progress of humanity ought to overrule personal

considerations”. However it may be, as long as the definition

of inferiority doesn’t imply to-be-exterminated-ness, the

connection between the prescription and the group to which it

applies is not necessary, and established only by the

prescription itself. As I have previously argued, which, if

any, prescriptions one adopts is, as long as they are

consistent, underdetermined by reason, and therefore

25

prescribing to exterminate inferior people is no less arbitrary

than prescribing to exterminate people with brown shoelaces. We

all have the freedom to form opinions, but, no matter how

strongly we commit to them, they remain opinions,

underdetermined by reason and arbitrary. And, by virtue of the

first stage of universalizability, anyone adopting a

prescription to exterminate an arbitrary group of people

necessarily commits to “it is acceptable to prescribe to

exterminate an arbitrary group of people” as well. Therefore,

if the person who exterminates people with brown shoelaces

would target some Nazis (because they have brown shoelaces),

and he in turn would be Jewish, and therefore targeted by the

Nazis, neither of them would be in a position to make a moral

protest against the other, or against any other scheme of

exterminating arbitrary groups of people. To put it simply, no

laws of nature or logic are going to stop people from becoming

Nazis, but people who believe that the holocaust was morally

acceptable would not be in a position to make a moral protest

if someone would start rounding them up, patching swastikas on

their coats, and shipping them to forced labor and

extermination camps.

To use another example, if someone would go around painting

other people’s houses blue based on a moral prescription, this

person would also necessarily be committed to “it is alright to

paint other people’s houses blue”. The person might believe

that the color blue is special, and painting someone else’s

house some other color would not be acceptable, but there is

nothing intrinsic to the color blue which justifies this. The

26

preference for this particular color can only be based on a

false factual premise, such as that God decreed that it is

alright to paint other people’s houses blue but no other color,

or on a prescription, which is, as I argued, a matter of

subjective personal choice, underdetermined by reason, and

consequently just as arbitrary. Therefore, one who is committed

to “it is alright to paint other people’s houses blue” is also

necessarily committed to “it is alright to paint other people’s

houses arbitrary colors”, as long as the choice of blue is

truly arbitrary in the above sense, and has no moral standing

to protest if someone paints his house purple, just because it

is a different color. The moral prescriptions and other

preferences we adopt serve as reasons for action, but do not

justify them objectively. Moral prescriptions are distinguished

by their universalizability, which subjects them to more

extensive demands of consistency than simple prescriptions or

inclinations, but they are no less arbitrary.

Of course, as Mackie notes, one can also avoid the first

stage of universalizability by not making prescriptions, or not

moral ones. Some Nazis could actually have been amoralists,

condoning the extermination of Jews without judging it morally

right or wrong. They could even prescribe to do so in a non-

universalizable way, by promising, which is more or less what

the so-called Hitler-oaths amounted to, by which the soldiers

and officers of the Wehrmacht pledged personal allegiance to

Hitler, who in turn ordered the extermination of Jews, or by

consenting to the authority of the Third Reich, knowing that it

was exterminating Jews. Promising or consenting to the

27

extermination of Jews doesn’t entail the moral prescription

“one ought to exterminate Jews”, but it is incompatible with

the moral prescription “people ought not to be exterminated”,

and, as I have argued, any moral prescription less general is

insufficient to ground moral protest against being

exterminated, since claiming that only certain arbitrary groups

of people ought to be exterminated entails commitment to “it is

alright to exterminate arbitrary groups of people.” Therefore,

Nazis who don’t make moral prescriptions about exterminating

Jews, but nevertheless condone it, are in a position to protest

being taken to the concentration camps, but not on moral

grounds, because their behavior shows that they are not

committed to “people ought not to be exterminated”. They could

rightfully claim that what is being done to them is unpleasant,

and that they don’t want it to happen, but they would have no

standing to claim that it is morally wrong.

This is the account of legitimate coercion that, as I will

argue in III. 2, grounds the legitimacy of the voluntaristic

government’s de facto authority. Mackie is right that, if Hare

truly wants to establish that we ought to give equal weight to

everyone’s preferences from formal requirements, he fails,

because there are no objective prescriptions, and you can’t get

something for nothing.43 But since legitimacy is a claim about

the possibility of morally consistent protest, all I need to

establish is that the first stage of universalizability is a

formal requirement on moral prescriptions. I don’t claim that

there are any moral or meta-ethical constraints on what kinds

of behavior one can condone, only that, by virtue of the43 Mackie 1977: 99.

28

logical form of moral prescriptions, one has no moral standing

to protest being the target of the kinds of actions one

condones towards others.

29

III. Voluntarism

Section III. 1 will argue that, of all species of consent, only

tacit actual consent is both compatible with moral skepticism

and feasible as a justification of authority. Without facts

about what people ought to do, one cannot arrive at facts about

how people ought to be governed, but one can nevertheless give

an account of how the property of legitimacy applies to

voluntaristic government, which I will do in III. 2 This

account will be descriptive, and not normative (IV discusses

this distinction in depth): it will not admit of an argument

for preferring legitimate to non-legitimate government, since

any such argument must depend on the objectivity of some

prescription, such as “government ought to be legitimate”,

which is incompatible with moral skepticism. Section III. 3

examines the possibilities of supplementing the voluntaristic

government with an enforced regime of private property.

III. 1. Theories of Consent

Consent accounts have to face the Argument Against Voluntarism

articulated in the introductory chapter, according to which de

facto authority cannot be justified by consent. Most consent

theorists have attempted to do this through a compromise on

what constitutes consent. This was the route taken by Locke as

well, one of the first influential advocates of a consent based

account of legitimate authority. Locke claimed that by simply

remaining in the territory over which a government has

authority, and participating in the regime of private property

instituted by it, one tacitly consents to its authority, and

30

undertakes an obligation to obey it, justifying its coercive

powers, and making any protest against them void.44

The line of thought of Locke’s tacit consent theory is, even

at first glance, very similar to that of moral accounts of

legitimacy. The normative work is done by the objectivity of a

prescription to obey a de facto authority as long as one is under

its jurisdiction. If this prescription is truly objective, one

necessarily consents to the government’s authority by remaining

and conducting business within the boundaries of the state.

Putting it this way shows that consent is something of a fifth

wheel in Locke’s theory, which in fact aims to justify

government morally, and is therefore incompatible with moral

skepticism.

Lockean tacit consent has been argued against convincingly by

Hume, without invoking moral skepticism: he noted that moving

to another country is such a great (often impossible) price to

pay for non-consent with the government that enduring it is not

truly voluntary if this is the only alternative.45 The argument

is further strengthened by the fact that today all land

considered suitable for human habitation has been claimed by

some state, therefore, even if it might be relatively easy to

escape the authority of any one state, it is impossible to

escape the authority of all states.

I must add, without the means of elaborating here, that

Lockean tacit consent would be much more appealing as a

justification of authority on the level of cities. It is much

easier to move from one city to another, and, since their

44 Locke 1980: par. 119.45 Hume 1953: 51; Simmons 2000: 152-3.

31

boundaries usually do not touch, one can easily leave the

jurisdiction of all cities as well, or create a new community

with likeminded people much more easily than forming a new

country. Furthermore, most cities are arguably nothing but the

results of the collective and individual work of their

inhabitants, and are therefore, as aggregates of private and

collective property, more akin to artifacts than to the vast

expanses of land claimed by countries. It is therefore arguable

that people don’t have as strong a claim for wanting to live or

work in a city without consenting to the authority creating and

maintaining its infrastructure, since it is only this that

differentiates it from the area outside the city. Additionally,

devising redistribution schemes on the level of cities instead

of national or federal governments would introduce an element

of competition into them, which would help with the often

criticized inefficiency of centralized redistribution.46

Others have tried different compromises with the requirement

of consent: hypothetical consent theory, as formulated by Hanna

Pitkin, claims that “legitimate authority is precisely that

which ought to be obeyed, to which one ought to consent, which

deserves obedience and consent, to which rational men

considering all relevant facts and issues would consent, to

which consent can be justified.”47 What is important is not

actual consent then, but what one would consent to in a

hypothetical situation of perfect rationality. This theory,

like the method of reflective equilibrium discussed in II. 2,

depends on the objectivity of at least two prescriptions, and

46 Okun 1975; Narveson 1988: 240-1.47 Pitkin 1966: 39.

32

it is therefore incompatible with moral skepticism: that one

ought to consent to that which rational men would consent to,

and, assuming that such rational men are unavailable and

therefore their decisions may only be hypothesized on, that

they would indeed all consent to the same thing, and what that

thing is.

Normative consent theory claims that what matters is what one

ought to consent to, based on moral considerations,48 while

theories of democratic legitimacy claim that what matters is

the majority’s consent.49 These two theories might have the

advantage of being more explicit about the objective

prescriptions they posit, but they are nonetheless incompatible

with moral skepticism. Normative consent theory can be regarded

as a more straightforward version of hypothetical consent, but

consent is a fifth wheel in it as well, and the theory

ultimately aims to justify legitimacy with objective

prescriptions. Democratic legitimacy may be argued for from the

view that we don’t have reliable enough access to facts on what

we ought to do to simply deduce how we ought to be governed,

but it nevertheless assumes access to at least one objective

prescription: that we ought to subject ourselves to the will of

the majority, which makes this theory incompatible with moral

skepticism as well.

The species of consent with which this thesis justifies

government is actual, in order to avoid dependence on objective

prescriptions, while the method of consent is tacit, for

practical reasons. Requiring everyone to positively affirm the

48 Estlund 2005.49 Christiano 2004.

33

government once or in regular intervals would require enormous

efforts, and wouldn’t accomplish much, since there is no reason

why one could not change one’s mind after having consented.

Therefore, voluntarism is only feasible if instead the

government assumes of every citizen that they tacitly consent

to its authority, until they either declare themselves or act

in opposition to it. Tying consent to other behavior, for which

citizens might have reasons unrelated to declaring their

consent or non-consent, as Locke did, would open up tacit

consent theory to the objections voiced above. By simply

assuming their tacit consent but allowing them to revoke it at

any time without paying a price, the government doesn’t

restrict the choices of citizens, merely judges their

commitments based on their actions.

III. 2. The Voluntaristic Account of Legitimate Authority

This is the section in which all the arguments articulated and

concepts defined so far come together to form the voluntaristic

account of legitimate authority. What I aim to establish, based

on the account of legitimate coercion derived from the

condition of universalizability in II. 3, is that in a state

governed by a voluntaristic government with the singular

purpose of protecting its citizens from harm in the most

efficient way possible, there is no possible exchange between

citizen and government which the citizen can consistently

protest on moral grounds, and therefore such a government is

generally legitimate.

The key element of my account, which alleviates the seeming

contradiction between voluntaristic legitimacy and de facto

34

authority, is that the government’s singular purpose is to

provide universal protection from harm in the most efficient

way possible. Unlike Locke or advocates of normative or

hypothetical consent theories, I aim to make voluntaristic

legitimacy and de facto authority compatible not by compromising

on the requirements of voluntarism, but by limiting the powers

of government. Instead of formulating the social contract

guided by a common ground of positive moral judgments, as the

modern liberal approaches do, I seek to formulate it in a way

so that non-consenting to it entails, by virtue of the

requirement of universalizability, consent to the means of

enforcement prescribed. I will argue that non-consenting with a

government existing only to enforce a right of protection from

harm in the most efficient way possible entails non-committing

to there being a right of protection from harm, and thereby

constitutes relinquishing moral protest if the government was

to harm the non-consenter while carrying out its duties.

By subscribing to the social contract, citizens mutually

grant a right of protection from harm and authorize the

government to enforce this right in the most efficient way

possible. Efficiency here has a dual meaning. First, it is the

assumption that a universal right of protection from harm can

be enforced by a government more efficiently and reliably than

individually. This assumption is, though strictly speaking

unverifiable in lieu of large-scale and long-running social

experiments, I believe, fairly uncontroversial and necessary

for any prospect of legitimate government. Second, it means

that the government does its job in the most cost-effective way

35

possible, which is to be ensured by transparency and the

possibility of bottom-up structural reform and improvement. If

the government is enforcing the right of protection from harm

in the most efficient way possible, the only possible reason

for non-consenting with it is non-committing to a right of

protection from harm.

Both the degree of protection required for safety and the

nature of the institutions guaranteeing it are practical

matters, dependent on particular social situations and

undetermined by the justification of government. What the

theory demands is only that the institutions facilitating the

structural improvement of the government are in place, and

therefore no citizen can grant the right of protection from

harm but protest the government on moral grounds because of its

inefficiency. If a citizen can show that the efficiency of

government can be improved in some way, the necessary reforms

must be made to preserve legitimacy.

The voluntaristic government must also allow executive

vigilantism, meaning citizens doing the work of the police,

because not allowing it could be a ground for morally

consistent protest. Citizens who consents to the covenant of

protection from harm could be in a position to apprehend a

known criminal at their own risk, in accordance with the laws,

and not doing so could even make it likely that the police will

not get there in time. Not permitting such citizens to do the

work of the police could be a ground for morally consistent

protest, and therefore cost the government the prospect of

general legitimacy.

36

If one is committed to a right of protection from harm, one

necessarily consents to the government’s authority, since it is

the most efficient way to enforce the right, and such a citizen

is never going to be coerced by the voluntaristic government.

Though the government does not ask for the permission of

citizens before taxing them, this in fact is not an exercise of

coercive power if done to consenting citizens, since by

consenting to the government they also consent to taking part

in financing it in the most efficient way possible, and the

government is merely expediting the process. In the case of

non-consenting citizens, it counts as legitimate coercion since

they don’t commit to a right of protection from harm, and

therefore have no moral standing to protest being coerced. One

can consistently protest the government in the form of non-

universalizable prescriptions or value judgments (say, “I’m not

going to obey the laws of this government”, or “I don’t like

this government”), but not in the form of universalizable

prescriptions, such as “what this government is doing is

morally wrong”, and what legitimacy requires is the

impossibility of consistent moral protest.

As I have argued in II. 3, in order to make a moral stand

against being coerced, one must commit to a prescription

against harm which doesn’t exclude arbitrary groups, for if one

morally condones an arbitrary group being harmed, one has moral

standing to protest if someone else’s moral convictions condone

that one is harmed. One could non-consent with the

voluntaristic government based on the moral conviction that

only people who write theses on the legitimacy of authority

37

ought not to be harmed, but one could not, on moral grounds,

protest being harmed by it while it protects others from harm.

To put it more simply, “it is morally acceptable to harm an

arbitrary group of people (say, people who don’t write theses

about the legitimacy of authority), but it is not morally

acceptable that the police harms me if I do so” is an

inconsistent moral position.

If the arguments of II. 3 establish the necessary

universalizability of moral prescriptions and successfully

derive the possibility of legitimate coercion from it, a

citizen declaring non-consent with the covenant of protection

from harm, either vocally or by action, loses moral standing to

protest being harmed in the process of the government enforcing

the covenant. Universalizability doesn’t establish the

necessity of committing to the right of protection from harm,

only that one cannot consistently commit to it and harm people,

and that if one doesn’t commit to it, one has no moral standing

to protest being harmed. If the government uses force against

non-consenters with the covenant for protection from harm,

either by apprehending criminals or by collecting taxes from

unwilling citizens, they have no moral standing to protest,

because by non-consenting with the covenant, they have

relinquished the moral commitment which would ground protest.

The voluntaristic government is permitted to engage only in

acts of coercion that those whom they affect have no moral

standing to protest, and therefore, since it can be

consistently protested neither by consenters nor by non-

consenters, it is generally legitimate. As I will emphasize in

38

IV, I don’t claim that there is anything right about legitimate

government or wrong about illegitimate government, or that

there is any a priori reason to consent to one rather than the

other, only that there is a particular failing, that of moral

inconsistency, in attempting to protest the authority of a

generally legitimate government on moral grounds.

If the arguments for the necessity of universalizability

ultimately turn out to be incorrect, but the arguments for

moral skepticism remain successful, not even a voluntaristic

government is generally legitimate, but it still has special

legitimacy towards all citizens who commit to the

universalizability of morality, which seems to be the

overwhelming majority, the only possible exceptions being

certain fanatics.50 If this is so, anarchists are right that

generally legitimate de facto authority is impossible.

Voluntaristic government, however, still provides the greatest

scope of special legitimacy, greater than forms of government

justified by particular moral principles, and is therefore the

form of government people who desire legitimacy should

gravitate towards.

III. 3. Private Property and Voluntarism

The account of legitimate coercion is able to justify coercive

power for the government only as long as it is used to enforce

the right of protection from harm in the most efficient way

possible. If the government would have the additional purpose

of providing free universal healthcare for example, declaring

non-consent to this, or not paying the necessary taxes, would

50 Hare 1954/5.39

also entail non-commitment to a right of universal healthcare,

but would not entail non-commitment to the covenant of

protection from harm. Such a person would have no moral

standing to protest if free healthcare would be withheld from

him, but he would have moral standing to protest being coerced,

for example by healthcare taxes being forcefully collected from

him.

The most striking consequence of this point is that the

voluntaristic government, without further arguments, is unable

to legitimately enforce private property rights in their

contemporary form. The institution of private property is also

a like a covenant, consisting in claiming and mutually granting

ownership rights over objects, and therefore, for someone

committed to the institution, intentionally limiting property

rights constitutes harm, and justifies coercion. However, one

may enter the covenant of protection from harm but not condone

the institution of private property, and if such citizens

disregard the property claims of others, the police may freely

appropriate anything found in their possession, for, as non-

committers to the institution of private property, they can’t

claim ownership, but they can’t legitimately be subjected to

coercion as long as their crimes are only against property and

not person. This seems to entail the absurd possibility that if

a known thief would simply stand in the doorway of a room where

he has stashed stolen items, the police could not legitimately

use physical force to remove him. In this section I will

propose three lines of argument to avoid this conclusion, and

40

integrate an enforced regime of private property into the

voluntaristic government.

III. 3. 1. Optional Private Property: I believe this approach,

which could perhaps be taken to affirm in a radical form the

ancient moral intuition that someone who has nothing cannot be

blamed for stealing, to be more appealing than it initially

seems. There is a line of argument, which I will outline, but

not follow through to all of its consequences, that might

justify the police apprehending certain thieves, while keeping

the institution of private property optional. The key point to

argue is that, while one is never obliged to commit to the

institution of private property per se, certain kinds of theft

entail an implicit ownership claim, and therefore commitment to

the institution.

While a citizen could plausibly be a non-committer to private

property, and, out of hunger, take a piece of food or water, or

seek shelter on a piece of land someone has already claimed,

there seems to be something strange in a highly trained jewelry

thief committing a well-planned heist and then claiming to non-

commit to the institution of private property. Why did he go

through all the trouble to steal the jewelry then? What good is

expensive jewelry without its market worth, for which it

depends on the institution of private property? Even if the

thief claims not to commit to property rights, but wants to

take advantage of other people committing to them, what

advantage can he gain from the jewels, other than ownership of

the money obtained by selling them, or the products he buys

from it? Perhaps the thief only stole the jewels because they

41

were pretty, but then is he willing to trade them for perfect

replicas made of non-valuable materials? To put it more

generally: does intentionally excluding others from the use of

a non-perishable good not in itself constitute an ownership

claim?

I’m inclined to think that the mere act of intentionally

blocking a doorway or otherwise attempting to limit the

police’s (or anyone else’s) access to the jewels in the example

constitutes their appropriation, and thereby commitment to the

institution of private property. Unlike harm, which can be done

without any prescriptions, or based on a non-universalizable

prescription, theft requires the institution of private

property, and I don’t see how one could claim ownership without

committing to universalizable prescriptions: that which someone

owns is something which others ought not use without consent.

This seems to stand uncontroversially for non-perishable goods,

since sharing them doesn’t diminish their value. Someone who

is not currently using an object but excludes others from its

use seems to be making an ownership claim, for that is how an

ownership claim differs from simple use: it is an exclusive

right to use something that extends over time. And, arguably,

for someone who is committed to the existence of private

property rights, limiting them constitutes harm and therefore

justifies coercion.

The case of perishable goods is more difficult, since one can

want to use them without wanting to own them: by eating an

apple one excludes others from its use, but doesn’t necessarily

claim ownership of it, or commit to an institution of private

42

property. It would be helpful to further divide perishables

into luxuries and necessities, but, at this point, I don’t see

how this could be done uncontroversially. Necessities are the

things humans require to attain non-negotiable ends, such as

their sustenance as biological organisms and social animals:

food, water, shelter, basic clothing, medical and hygienic

items and so on. The extent of this category is not evident,

however. Nutrition or shelter are clearly necessities, but what

about things that are desired to attain a personal goal or to

fulfill a personal preference, such as cakes, cars, musical

instruments or nail polish? People often choose to compromise

on a biological need, such as nutrition, for some personal

goal, such as having a musical instrument, and it is a

contentious question whether necessities can or should be

defined objectively, or based on perceived need. Is a musical

instrument a necessity for somebody who can and wants to play

it? How about someone who wants to learn how to? And someone

who is merely interested in giving it a try in order to see

whether he wants to learn it? It is hard to see how these

questions can be answered objectively. It is, on the other

hand, a fact, but unfortunately not an independently verifiable

one, whether someone appropriates something to fulfill a

perceived need.

III. 3. 2. Illegitimate Private Property: This option, as the

name suggests, gives up on fully justifying the enforcement of

private property,51 and consequently on the claim to general

legitimacy for governments with this power. The part of the

51 For a liberal and moral realist approach that also denies objectivelymorally binding ownership rights, see: Murphy, Nagel 2002.

43

government concerned with protection from harm retains

legitimacy towards all citizens due to being justified by

voluntarism, and so does the enforcement of private property

rights in the cases discussed in the previous subsection, if my

arguments for certain forms of theft entailing ownership claims

are correct. Any further powers granted on particular moral

commitments, for example that there ought to be an enforced

regime of private property as extensive as the ones today, are

specially legitimate towards the citizens who share the moral

commitments. Consequently, the government will have a degree of

special legitimacy based on how widely accepted these moral

considerations are, and how efficient it is, since inefficiency

is in itself a ground for morally consistent protest. This kind

of special legitimacy characterizes today’s states from the

perspective of voluntarism, to varying degrees, and will be

discussed in detail in IV.

III. 3. 3. Legitimately Enforced Private Property: The so-

called Lockean proviso for justice in appropriation, adopted

widely in contemporary libertarianism, states that in order for

the appropriation of natural resources to be legitimate,

“enough as good” must be left.52 There are a number of

interpretations on what this means, but it is usually taken to

require a form of compensation.53 Some interpretations depend

on objective prescriptions and are therefore ruled out by moral52 Locke 1980: par. 33.53 For an assessment of the most prominent interpretations, see:

Vallentyne 2012. It has been argued that the Lockean proviso also standsfor justice in using objects without claiming ownership of them, likesitting on a park bench (Roark 2006), and if this is so, the arguments ofIII. 3. 1 to the effect that the intentional exclusion of others from theuse of non-perishable goods entails an ownership claim may be understood asan application of the proviso.

44

skepticism: they assume pre-political common ownership rights

to the planet’s resources, and prescribe that compensation

ought to be either an equal portion of what is taken,54 or

proportional to the opportunity for welfare gained by the

appropriator.55 Nozick claims, on the other hand, that those

who are made worse-off by the appropriation must be compensated

for being made worse-off.56 I believe that providing

compensation, perhaps more in line with the spirit of

sufficientarianism57 than with what Nozick meant, for how one

is made worse off by the existence of the whole regime of

private property, and not just particular acts of

appropriation, might justify the enforcement of private

property rights. If nobody is made worse off by the existence

of the institution of private property, theft can only be

motivated either by pure greed, which entails commitment to the

institution of private property, or by malice, which

constitutes harm.

The question is, then, how are those who don’t wish to

participate in the institution of private property made worse-

off by its existence? I believe the answer to be fairly

straightforward: in the state of nature one can plausibly take

care of one’s basic needs, including food, water, shelter and

free movement, and have access to some naturally available

resources such as wood. Of course in reality a lot of people

would fail to obtain what they need from nature, especially if

they were raised in modern cities, but there is no legitimate

54 Steiner 1994.55 Otsuka 2003.56 Nozick 1974: 174-82.57 Simmons 1992, 1993.

45

way for the government to decide who these people would be.

Therefore, the regime of private property must be, in order to

be generally legitimate, instituted in a way that what one

could plausibly obtain in the state of nature is universally

provided for in the most efficient way possible. This way of

defining necessities is perhaps less precarious than the ones

suggested in the previous subsection: we don’t know whether

someone truly needs a musical instrument or a car, but we know

that he could not get either in the forest, though he probably

wouldn’t think of wanting them either.

What are the most efficient institutions and policies to

universally provide necessities is a practical question,

outside the domain of philosophy, but I am drawn towards the

idea of an unconditional basic income, coupled with very

permissive natural resource laws that allow free access to

clean water and use of natural areas without damaging them. The

advantages of this policy are its simplicity and efficiency (in

terms of the amount of money collected for redistribution

actually reaching its target, due to the minimal administration

required, compared to targeted provision programs),58 and that

providing the same sum to every citizen leaves the decision

about what to spend it on, and thereby what they deem

necessary, to them. An unconditional basic income might seem

utopistic, but its implementation is being seriously discussed

today, and similar policies already exist, so it merits at

least consideration.

IV. Conclusion

58 Wilderquist, Lewis 1997.46

This chapter discusses the relationship of voluntarism to

political practice and contemporary forms of government. The

voluntaristic theory of legitimate authority is descriptive,

not normative, which means that it is not meant as a guide for

establishing the right form of government, but a description of

the property of legitimacy, and of a form of government to

which it applies. It aims to make the purely theoretical point

that voluntaristic general legitimacy and authority are

compatible, and not to advance a theory on how people ought to

be governed, which would be incompatible with the moral

skepticism argued for in II. 1, since it would contain an

objective prescription. Legitimacy is merely one of the

attributes one could value in an existing government, or strive

for when establishing a new government. And though it is

conducive to the widely appreciated value of stability, since

it is defined in terms of the possibility of morally consistent

protest, legitimacy is by no means the only or most important

thing one could desire from authority, nor is it necessarily

desired at all. As the approach of supplementing the

voluntaristic government with an admittedly illegitimate regime

of private property in III. 3. 2 suggests, one may desire

further, illegitimate powers for government, in order to attain

goals deemed more important than general legitimacy. In that

case, the goal trumping the desire for general legitimacy was

to retain and enforce something like contemporary regimes of

private property.

Someone who acknowledges the arguments of this thesis – let’s

call him a voluntarist – may (or may not) choose to desire

47

government to be legitimate, and to have other properties as

well, which are not entirely compatible with it. After

assessing the relative strengths of the competing preferences

and all other considerations deemed relevant, he may choose to

support, for example, the government of the United States of

America as it exists in 2015, finding himself in a position not

unlike philosophical anarchism in supporting an admittedly

illegitimate government.59 Today’s governments tend to have a

legitimate core, concerned with protection from harm, to which

different layers of further powers have been added, resulting

in various degrees of special legitimacy. The most common ones

are the enforcement of non-voluntary regimes of private

property and coercive redistribution schemes. These two, at

least in theory, are interwoven: the illegitimate property

regimes play a part in creating and perpetuating economic

inequality, which is to be alleviated by illegitimate

redistribution. That they both exist is probably better than if

only the former existed from the perspective of the reasons for

which people tend to support the governments maintaining them,

but, whether it is better than if neither existed, is, in lieu

59 I described philosophical anarchism in the introductory chapter as theposition that „one may be justified in supporting a government both againstthe alternative of another government or of anarchy, without believing it(or any other government) to be generally legitimate.” The voluntaristdescribed in IV, on the other hand, may also support a government against amore legitimate government, based on other considerations. This is theconsequence of the difference between a normative and a descriptive theoryof legitimacy: normative legitimacy has the dubious property of to-be-followed-ness, and therefore, if it obtains and there are no othernormative considerations, one is compelled to support the most legitimategovernment available. Descriptive legitimacy doesn’t claim to-be-followed-ness, and therefore how much, if at all, one values it is a matter ofpersonal decision.

48

of massive and long-running social experiments, indeterminable,

and a moral question at any rate.

Similarly, if the voluntarist finds himself in a position to

form a government, he may decide to form one that is not

generally legitimate. Since there are no objective

prescriptions, we can all choose what, if any, prescriptions we

will adopt to guide our actions, and that government ought to

be legitimate is merely one of the possibilities. One could, in

this hypothetical position of authority, value legitimacy, but

decide that improving the well-being of the least well-off

citizens is, at least at the moment, more pressing, and no

significant concessions ought to be made towards this goal for

the sake of the more abstract one of general legitimacy. Such a

person, operating under the belief that keeping current,

illegitimate property and redistributive schemes in place, or

modifying them only slightly or gradually, would be better for

the least well-off, will be inclined not to go straight, or at

all, for general legitimacy. What things to value and in what

proportions is, according to moral skepticism, underdetermined

by reason, and decided individually, just as what music to

listen to, or, in line with the above example of forming a

government, what music to play at a party attended by many

people with diverse tastes.

What reason compels one to accept is that if one knowingly

affects others by one’s moral judgments, then, by virtue of

their necessary universalizability, one loses moral standing to

protest being affected in the same way: there is no moral law

stopping people from listening to heavy metal music loudly,

49

even though the neighbor might find it inconvenient, but by

doing so one loses moral standing to protest if the neighbor

listens to trance music loudly at another time. And, if the

arguments are valid, reason also compels one to acknowledge the

theory of legitimacy built on the requirement of

universalizability and the hypothesis of moral skepticism, and

to use language accordingly. As long as we don’t have reliable

access to objective prescriptions, coercing people based on

moral principles, for example taking from the rich and giving

it to the poor, can consistently be opposed on moral grounds,

and is consequently illegitimate. Therefore, if one decides to

do so, one should, instead of claiming to be justified by laws

invisible to others, take personal responsibility.

50

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