1. All rights are based on what is naturally due for the perfection of some existing relationship between persons: if the relationship exists, if it is to be perfected, then such and such an act or ability must be maintained within the relationship. This is what a right is.
2. If there is a right, there must be a real relationship, i.e. a relationship which is based on a real association of persons (whether by agency and effect, proximity, dependency, or whatever).
3. If there is such a thing as a “right to be obeyed”, then there must be a relationship from which that right follows.
4. If political legitimacy tells us about who holds a distinct species of right (the right to be the lawgiver), there must be some genuine difference which is attributable to the one holding the right, which gives that person or set of people their distinct status with respect to everyone else in the community.
5. If we’re trying to figure out what makes governments legitimate or illegitimate, we need to figure out what constitutes the specific difference of a government.
6. We could make a laundry list of common theories of legitimacy — but such a list ends up being a list of all the non-governmental relationships to which the relationship between government and citizen has been reduced per analogiam: the relationship between parent and child, or between two business partners, between a violent gang and its members, etc.
7. A primary question, then, is this: Is the specific difference between a government and some other group or person which ought to be obeyed a difference in kind or in degree? In other words: Is it correct to think of a government as just a very large and complex parent, or a very large and complex violent gang, or are these analogies simply grasping at part of the reality of the relationship between government and governed?
8. In these other relationships the real bases of the right are various: (1) paternity/consanguinity, (2) the honesty characteristic of useful friendships, (3) fear of violence. . .
9. Because it is possible for those in power to have legitimate authority over those who have not been raised subject to their government, the analogy to paternity need not apply, and does not seem necessary to government.
10. Because the lawgiver need not have any reciprocal communication with those being governed, in order to have the right to be obeyed, the analogy to honesty in useful friendships does not seem to capture the specific difference of government. The lawgiver need not listen or have any direct acquaintance with those governed to remain legitimate.
11. While the possibility of servile fear (the threat of violence) seems necessary universally for government, this is very clearly not constitutive of the relationship between the lawgiver and the citizen, since in any state not on the verge of collapse, the vast majority of citizens are not compelled to obey by fear but out of civic piety or at a minimum a desire to cooperate with the lawgiver.
12. If, then, neither the state’s paternal or penal roles, nor its position as friend or partner provide its specific difference, and these are the primary candidates for the real basis of legitimacy, then (assuming that there is such a difference, and that legitimacy is a real thing) there must be some other characteristic of states which makes them legitimate on the whole, and which occasionally includes these other features. But what?
13. How do we identify governments? The possession of sufficient force to punish evildoers and suppress disorder in society. The broad recognition of the government as government by those it governs. The government’s self-designation as one to be obeyed. The promulgation of laws which are intended to bind the people. The perception that the government and its laws exist to promote the common good of society. The reality of the government’s promotion of the common good of society. The manner by which the government or its members receive their titles. All of these contribute to the hold of a government on a community of people.
14. But at this point it becomes clear that the question we asked originally (i.e. what characteristic sets the state up in such a relationship to the members of a society that they ought to obey its laws) was a bad question. Why?
15. The question we asked presumed that there was one primary reason for the state to be obeyed, and that political legitimacy is a unitary quality to be possessed or not possessed by the state as an agent, and by its laws as acts of that agent.
16. In reality, there are many reasons why one ought to obey the state, and because these reasons can be divided from each other and attained or lost individually, there will not be a single determinate feature that is “political legitimacy”.
17. For example, one ought to obey the state for the sake of civic peace and order. Given the existence of a lawgiver which is recognized by the community, when one begins to disobey the laws which are accepted by the community and come from the lawgiver, one creates a disharmony in the community, which is injurious to whatever order it presently has under the law, scandalous to those who accept the authority of the lawgiver, and potentially disastrous if it should raise the possibility of the overthrow of the government.
18. Another example: one ought to obey the state out of civic piety, and this for various reasons. Not just because the lawgiver, as the one responsible for setting society in order, has sustained the order necessary for your personal well-being, but also because your neighbors, who have directly provided the particular goods necessary for your well-being, by obeying the laws of the state make them norms for ordinary human interaction. Civil disobedience is violence not just against some sovereign lawgiver off in the distance, but against all those around you who abide by the laws you are breaking.
19. Another example: one ought to obey the state because the lawgiver should be assumed, until the contrary is abundantly clear, to have a superior grasp of what laws are conducive to the common good in each particular matter, and therefore to be naturally worthy of submission and obedience.
20. Or again: one ought to obey the state because it is the entity which most plausibly claims to govern whatever aspects of life it has appropriated to itself, and therefore must be reckoned with as such. Or because it is the sole force capable of enforcing the laws. Or because (and I suspect this is the basis of Christ’s injunction to “render unto Caesar what is Caesar’s”) the priorities of one’s life should be so ordered that one sets spiritual goods above temporal goods, and therefore ought to cooperate as far as possible with the temporal power and make one’s primary motive in disposing of temporal goods the pursuit of spiritual gain.
21. The motive for asking the question “What constitutes political legitimacy?” is twofold: first, the question seems to be raised when the idea of dissolving or overthrowing the government is at hand. Second, it is raised when one wants to discover the limits of one’s proper obedience to the law. We can now see that these two questions are very different, and in reality deal with two very different problems.
22. The question of overthrowing a government is reducible to the question of when the lawgiver has reached such a degree of corruption that any obedience to his authority is contrary to the common good, destructive of the peace and harmony of society, and scandalous to one’s neighbors. When this point has been reached, it seems that the proper response is to revolt.
23. The question of disobeying the laws is more particular: one ought to obey the state as far as possible, as explained above, if only for the sake of peace, the avoidance of scandal, etc. But in cases where obedience to the law requires the performance of evil acts or immediate cooperation in them, one should resist. The extent of the proximity of one’s cooperation necessary to justify disobedience in this case is the same as the extent necessary to implicate one in the guilt of a neighbor for his sins. In other words, this question is the same (I believe) as one raised by moral theologians about cooperation in any sin.
24. Once one performs these analyses, the notion of political legitimacy as a definite feature of governments evaporates, and is replaced by an extremely diverse and complex set of considerations based on the real order of civil society and the relationships of power, instruction, friendship, and cooperation which constitute it, which cannot ordinarily be reduced to the binary “legitimate/illegitimate”. Moreover, one grasps that the reality we were attempting to identify when we first spoke of the government’s “right to be obeyed” is often not a right held by virtue of the relationship between lawgiver and citizen, but between citizen and society, and therefore best thought of primarily as “the duty to obey” and not “the right to be obeyed”.
25. This shift returns our focus to its proper object: the relationship between each member of a society and the society as a whole, which includes not only the lawgiver, but all the other members as well. After all, there can be no lawgiver without a society governed by his laws, and it is impossible to understand those laws and the relationships which make them morally binding on citizens, without consideration of society, its common good, and the goods of its component individuals and communities.