In order to examine the legal obligations imposed on us by the State and the justification of them, it is important to define what the ‘State’ is. This discussion will focus on and assess the competing theories of De Facto, Plato, Hobbes, Rousseau and Locke, whose justification of the State is based on the notion of a social contract. Anarchism will also be examined as it opposes the other theories.
These theories attempt to explain under what conditions citizens are politically obligated to the State in terms of law and liberty.
Analysis will demonstrate that there is no theory that justifies the legal obligations imposed on us by the State.
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The ‘State’ has been defined as a unit, which incorporates various departments, which form the government as well as the agencies, which enforce State law. Territorial boundaries provide the State with exclusive jurisdiction or sovereignty. In Britain, where the coastline defines the territory, jurisdiction is extended to Northern Ireland and the Falkland Islands. Therefore, authority is not necessarily confined to a particular area. (Jones et al, 1991, p11)
It has been traditionally accepted that there is a connection between eh State and sovereignty. By claiming a domination of legitimate force within defined boundaries, the exercising of a monopoly suggests sovereignty. According to Hinsley, sovereignty is ‘the idea that there is final and absolute authority in the political community’. (Hinsley, 1986, p1) By this, we might understand that states can be characterised as ‘sovereign’ due to the type of power they claim.
Legitimacy of the State relies on the citizens’ acceptance of the State’s right to yield authority. Max Weber proposed that States are founded on ‘force’ and have a monopoly of the means of ‘legitimate violence’. Citizens, therefore, relinquish their right of retaliation in the understanding that the State will provide the necessary ‘force’ to ensure their safety. Weber questions the ambiguous definition of ‘force’ and debates whether it means ‘violence’ or ‘coercion’. (Jones et al, 1994 p11)
The De Facto Theory concerning political obligation proposes that if the State wields power and monopolises the use of physical force successfully, then individuals are politically obligated to obey the State. Within the British State, no other competing authority can carry out the State’s duties. Membership of international bodies such as the European Union and United Nations offers recognition of the British State. Nonetheless, moral questions can be raised regarding this theory. The monopolisation of physical force can result in regimes.
As a competing theory, Plato’s Crito outlined the ideal State in terms of justification. During Plato’s discussion with Socrates, the question of agreement arises in relation to how the State is justified in administering punishment. Plato stated: ‘…if you cannot persuade your country you must do whatever it orders, and patiently submit to any punishment that it imposes…’ (Plato, Tredennick 1986 pp90-91) The problem of coercion is addressed by suggesting that a social contract exists between the State and citizens. This voluntary, but formal agreement of obligation justifies State law. However, it can be argued that no social contract exists, as no one actually signs an agreement to obey by State rule.
The notion of a social contract was influential in political philosophy particularly during the 17th and 18th centuries. Hobbes, Rousseau and Locke advocated the idea that an authoritarian State was originally developed from an agreement between the rulers and citizens. The social contract theories are central to the argument that surrounds justification of State control.
According to Thomas Hobbes, individuals would consent to a social contract and thereby submit to an absolutist authority in order to escape a ‘state of nature’.
Hobbes writes in Leviathan:
In the [state of nature] there is no place for Industry; because the fruit
thereof is uncertain; and consequently no Culture of the Earth; no Navigation,
nor use of the commodities that may be imported by the Sea…
(Thomas Hobbes, Leviathan, 186)
By this, we can deduce that Hobbes’ ‘state of nature’ was a pessimistic vision of mankind. It portrayed a grim existence in which life would be ‘nasty, brutish and short’. (Wolff 1996, pp8-9) As individuals continually fear for their safety, a continuous ‘state of war’ would exist, as pre-emptive attacks would be preferable as humans were innately bad and self-interested. Theorists to explain ‘prisoner’s dilemmas’ have incorporated this account. As defined by Wootton, ‘situations in which the rational pursuit of selfish interest leads to outcomes that are disadvantageous for all involved’. (Wootton 1996, p97)
Influenced by his experience in the English Civil War, Hobbes classified the ‘state of nature’ as being due to competition, in which scarcity was a major factor. Inequality would be counter-balanced by preventative actions to ensure survival. This show of strength would be reflected in feelings of glory as power earns respect from others. Thus, Hobbes’ strategy for justifying political obligation is what individuals must transfer their rights to the State whose ability ‘to deliver order and stability’ would result in acceptance of the State’s role by the citizens.
Hobbes’ theory of justification can be condemned for making several assumptoions. His thought experiment does not consider altruistic behaviour and assumes that individuals would be ‘nasty’ in a ‘state of nature’. In addition, he presupposes that individuals would be subservient in order to feel secure. Furthermore, he believes that the State and the individual would enjoy an equal degree of satisfaction in the knowledge that a social contract justifies State law. The social contract would not only provide security and protection, but a fear of harsh retribution from the State where freedom of speech would be questionable. Finally, Hobbes’ ‘thought experiment’ of a ‘state of nature’ is merely a personal opinion of how society would exist without State law.
Hobbes’ theory was influential in the development of John Locke’s theory of political obligation. Both believed in a ‘state of nature’ as well as a social contract, but with differing interpretations. According to Locke, an individual’s life could be a pleasant experience within a ‘state of nature’, rather than a grim one. Locke’s Second Treatise of Government depicted an optimistic view of citizens as being free and morally aware within a ‘state of nature’. He argued against the notion of monarchical power in the belief that the institution of ‘government’ can and should be conceived as an ‘instrument’ for the defence of the ‘life, liberty and estate of its citizens’. (Held 1996 pp78-79) Locke justifies the legal obligations imposed on citizens by claiming that individuals had entered into a social contract, as depicted in the Second Treatise:
But I moreover affirm, that all men are naturally in that state, and
remain so till by their own consents they make themselves members
of some politic society
From this account of a social contract, it can be determined that Locke was suggesting an alternative form of agreement. By enjoying the benefits of the State, such as protection, than individuals have agreed to State rule. However, it can be disputed that this tacit agreement is involuntary. Citizens are not allowed to choose the ‘benefits’ in return for obliging to State rule. Therefore, Locke’s social contract can be dismissed as a means of justification of State power.
Opposite to Hobbes and Locke, Jean Jacques Rousseau’s holistic approach to the ‘state of nature’ was determined by his belief that individuals’ altruistic behaviour would reduce conflict. (Wolff 1996 pp26-27) Rousseau, a key figure during the Enlightenment, developed and published a Social Contract. In reaction to the powerful doctrine of the Church and State, Rousseau advocated a direct democratic system of government in which citizens’ participate in the law-making process. (Held 1996 p57)
Held described this process as being when:
All citizens should meet together to decide what
Is best for the community and enact the appropriate
Laws. The ruled should be the rulers.
For Rousseau, expression of the ‘general will’ would be achieved when citizens participate in assemblies and make decisions, which are in the best interests of each member as a whole. Regular participation in itself legitimises the State’s actions. (Mason 1994 p3) Nonetheless, Rousseau’s theory is unsuccessful in justifying the legal obligations imposed by the state for several reasons. Firstly, he assumed that minorities ought to consent to the decisions of majorities. Such a situation can be observed in Northern Ireland and where a minority refuse to accept British rule as legitimate. As observed by Laver (1983 p10), ‘The result is violence’. In addition, individuals living under a regime would be compelled to obey State law. The ‘social contract’ merely represents a utopian view of an ideal model of government. (Mason 1994 p3)
Utilitarianism is one of the conflicting views which differs from Hobbes and Locke’s ‘social contract’ theories, but supports previous suggestions that the individual is legally obligated to the State. The main principle of justification of utilitarianism is based on the belief that the State’s protection of citizens will encompass policies which benefit society as a whole. Advocates of utilitarianism, such as Bentham, suggest that we are obligated to abide by State law because the benefits outweigh the costs. The state will be non-interventionist allowing citizens to pursue their interests within a free market economy (Held 1996, p99).
Bentham proposed that
‘subjects should obey Kings…so long as the probable mischiefs
of obedience are less than the probable mischiefs of resistance’
From this statement, we can derive that Bentham implied that rulers were to be obeyed on the understanding that it was advantageous to the individual. In many respects, it has been argued that utilitarian theories sanction law-breaking, but they do support the notion that a ‘body of laws’ is crucial to maximise the greatest happiness. Therefore, the State is justified as provider and individuals are politically obligated because the state contributes ‘more to human happiness than any feasible competing arrangement’.(Wolff 1996, p56) Nevertheless, utilitarian views have been criticised for sacrificing the innocent. While the argument
Having considered theories in favour of political obligation, anarchist theories offer a conflicting view. Opposed to government interference in any form, anarchists believe that citizens should have absolute freedom without interference from the State. Their utopian concepts reject Hobbes’ reasons which favour political authority. Kropotkin proposed that anarchism is based on freedom and brotherly love. Crime is a result of ‘idleness, law and authority’. (Heywood 2000 p31) Anarchists propose that the State is too coercive by encroaching on personal liberty. They argue that individuals are not legally obligated to obey the state.
Kropotkin rejected Darwin’s theory of evolution which emphasised ‘the survival of the fittest’. Instead, he argued that like some of the animal kingdom, humans are capable of uncoersed co-operation’. (Wolff 1996, p33) Modern day evidence of this can be taken from the existence of communes and kibbutz.
The anarchist argument for withdrawal of State interference fails to recognise the requirement for the State to provide public goods such as welfare and medical treatment. As anarchists recommended an abolition of the state, then without a central co-coordinating agency, provision of this would be left to chance. Furthermore, as proposed by Wolff (Wolff 1996, p34) ‘…in times of international conflict even an anarchist society needs generals and military discipline.’
In conclusion, analysis of the theories has shown that while some have supported the notion of the individual being legally obligated to the State; anarchist theories have rejected it.