Legitimacy without the Duty to Obey

This article aims to make conceptual room for a view about political legitimacy called the power-liability account. The view claims that political legitimacy is a form of normative power that entails moral liability, but not necessarily a moral claim-right that entails moral duty. The power-liability account supports appealing interpretations of justified civil disobedience in the face of legitimate but unjust law at home and of justified human rights interventions that violate legitimate international law abroad. I argue here only for the conceptual possibility of this view, not for its normative correctness. I believe that the power-liability view indeed is correct, but it often is thought that the view not only is false but also incoherent. Many hold that entailed duty and immunity are built into the meaning of the concept of political legitimacy. My task is to loosen these conceptual strictures. Among the important concepts that political philosophers argue about, few are as protean as legitimacy. All of our normative concepts are matters of vigorous and, one hopes, fruitful disagreement. But often enough, for a time, we gain clarity about what the disagreement is about. So, though we might disagree about what distributive justice demands—who falls within the scope of its claims, what goods and freedoms are subject to it, and what are the correct principles of just distribution—we might agree that distributive justice is about who has a moral entitlement to which goods and freedoms under conditions of scarcity or conflicting interests. When it comes to arguments about legitimacy, however, there is less agreement about what we are disagreeing about. Rawls draws the well-known distinction between concept and conception, where a concept marks off the arena of a disputed idea that is filled, through normative argument, by conflicting conceptions with different content, criteria, or conditions.1 Without some conceptual analysis, understood as the exercise of marking off apt boundaries for fruitful argument, there are two ways an argument might misfire: if we are too loose in specifying a concept, we risk talking past each other; if we are too strict, we risk begging the normative question. The distinction between a concept and its conceptions is not hard and fast. It might shift over time as ideas get settled and then unsettled again. It might shift in the course of a single conversation, as we struggle to clarify where we disagree, and make judgments about whether, for a particular question, ordinary linguistic usage is more or less illuminating than stipulative definition, or whether highly moralized thick terms are more or less useful than relatively thin descriptions. The test of an aptly drawn concept is its fruitfulness, which in part is a matter of steering between the twin risks of engaging in merely verbal disputes and of assuming one's conclusion. In specifying the concept of legitimacy fruitfully, and in distinguishing the concept from its various conceptions, we might begin with the rough notion that the concept of legitimacy is about the right to rule. Various conceptions of legitimacy differ on what the necessary and sufficient conditions are for A to have the right to rule B in some context C, and differ on what the reasons are for such conditions. But neither having a right nor ruling are transparent notions. Is the right to rule a claim-right that entails a moral duty to obey, or a mere liberty? Is the right of a legitimate ruler conclusory, or merely presumptive? Does ruling involve legislating, commanding, instructing, advising, arranging incentives, coercing, or forcing? 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