Dubium: When Is Any Government “Legitimate”?

Mr. Daniel Lendman published a note recently here on The Josias that proposed that a government is illegitimate insofar as it is not “operating in accord with the laws and rules which properly govern” it. A state that redefines marriage contrary to the natural law does so illegitimately, and makes an illegitimate law. Lendman argues that this has implications for the legitimacy of the government as a whole, and may at some point abrogate citizens’ duty to obey the law.

Lendman’s note seems to leap from the illegitimacy of laws to the illegitimacy of a government—the United States, in this case—as a whole. At some point, one presumes from reading the article, the number of illegitimate laws reaches a tipping point, at which the general duty to obey the law (and officers of the government) vanishes. Lendman does not define this point, but gestures vaguely that it is somewhere: “How many pre-political societal principles must be violated before the government is rendered wholly illegitimate?” Furthermore, beyond non-compliance with this or that illegitimate human law, Lendman implies that citizens ought to take more radical, direct political action. At the ‘tipping point of illegitimacy’ a duty of political resistance seems to appear. Lendman intones, “there should be no peace under an illegitimate government.”

These are powerful sentiments that should not be left in a vague philosophical formulation (however sympathetic one may be to them). But my aim is not to shadowbox Lendman’s implications that, admittedly, are never made explicit. Instead, I attempt to clarify the concept of legitimacy, advance the discussion Lendmann begins, and attempt to displace the paradigm of overarching sovereignty or legitimacy. (This has a precedent on The Josias.)

In the Christian tradition, Lendman correctly notes, political legitimacy is derived from God. One recalls Jesus’ gnomic remark that Pilate’s authority only has authority because it was “given [to him] by one above” (John 19:11). This probably refers not to earthly higher powers, but God, in light of the epistles’ explicit claim that God invests Roman officials with power (see Romans 13, 1 Peter 2, Titus 3). But this is vexing. Why would God command Christians to obey these idolatrous pagans that would, in short order, throw the people of God to the lions?

Approaching this question will require disentangling—but not disconnecting—political legitimacy and moral legitimacy, since it seems possible, at least, that God confers political legitimacy (the right to be obeyed) on wicked legislators. It will be necessary to define legitimacy more clearly, and survey the various accounts of its origins. Once a clear account of legitimacy is established, the possibilities for legitimate political resistance will become clearer in turn.

The argument will take the form of seven short theses defining the concept of legitimacy, followed by seven more short theses on legitimacy and resistance in the Christian philosophical tradition.

The Concept of Legitimacy

1. An authority which is legitimate enjoys the right to be obeyed. Legitimacy, or the “right to rule,” is also the right to be obeyed by others. If authority X is legitimate with respect to individual Y, X has the right to the obedience of Y. It is this definition of legitimacy that concerns contemporary political philosophers. Political legitimacy is the right of a polity’s governing authority to be obeyed by the members of that polity.

• a. Political legitimacy does not share the common-language sense of what “legitimate authority” means. It is common to view the legitimacy of a political regime as a function of popular opinion. David Graeber proposes that politics involves a magical “halo of fraud”: “If I could convince everyone I was the King of France, I would in fact become the King of France” (Graeber 2012)[1]. Indeed, sociologists and political scientists may define legitimacy in terms of widespread popular assent. But this should not concern philosophy or true legitimacy.
• b. Political legitimacy is distinct from moral legitimacy (which might also be called auctoritas or moral authority). An individual, even a political official, might command another individual to act in a morally appropriate way, but still not enjoy the right to be obeyed. So we will leave moral legitimacy to the side, also, at least for now.

2. Political legitimacy and political obligation are correlative. If political authority X is legitimate with respect to political subject Y, then as a corollary Y owes a political obligation to X. A duty to obey the law, for instance, is a specific example of political obligation.

3. Both ordinary people and philosophers widely believe that some governments have political legitimacy and some citizens or subjects have political obligations.

• a. It is widely believed that political legitimacy and political obligation are necessary for government. This is sometimes called the necessity argument (see Anscombe 1978).[2] Necessity as the basis of political legitimacy fails for two reasons:
• i. The fact that Y is necessary to a cooperative scheme run by X, from which Z benefits, does not make it incumbent upon Y to support that scheme. If Xavier wants to dig a ditch that is the only way to supply water for Zack’s begonias, and Yolanda is the only effective ditch-digger in the area, that fact does not give Xavier the authority to command Yolanda to dig the ditch.
• ii. Political legitimacy and political obligation are not necessary for the orderly function of society. It may be true (see 1b), that the illusion of political legitimacy or the false consciousness of political obligation is necessary for order. But even if the illusion of political legitimacy does not obtain, the threat of punishment may be enough to ground public order.

4. The view that, in general, no governments have political legitimacy, and concomitantly that, in general, no individuals have political obligations, is called philosophical anarchism.

5. Beyond the argument for necessity (3a and 3b) there are four families of arguments for political obligation (see Simmons 2008, Chapter 3).[3] None appears to be convincing upon philosophical examination..

• a. Transaction. Transactional theories are more precise, arguing that political obligation is owed to polities in exchange for some benefits received from the polity. John Rawls’s idea of justice as fairness is a theory with a transactional core. But it is unclear, ultimately, why receiving some benefit (even a unique benefit) from X makes it incumbent upon Y to obey X. Xochitl may buy Yves a Ferrari, but this does not confer upon Xochitl the right to command Yves to mow her lawn. It is also unclear why typically political benefits would generate a right to be obeyed; criminal organizations run protection rackets (i.e., provide order) and Robin Hood redistributed wealth (i.e., provided distributive justice), but this does not mean that every local thug who does so ought to be obeyed.
• b. Associativism. Associative theories of political obligation propose that individuals have special, unchosen obligations to polities. In other words, the citizen bears political obligation to the polity in an analogous way to the obligations of filial obedience that young children are said to owe to their parents. Aristotelian “civic friendship”, with its concomitant duties, is paradigmatic of associativism. Often associativist arguments proceed by analogy, as when the Laws in the Crito propose they are “like parents” to Socrates. But it is strange to claim that the people of San Diego owe duties of special regard to the residents of New York, rather than the residents of Tijuana several miles away. Why exactly do national borders attain normative status? In general, there is a difficulty is defining the limits of associative duties of special regard. Is nationality somehow unique, or does one owe such duties of special regard to one’s own race, to one’s own gender, to one’s own ethnicity? Another difficulty comes in explaining why such duties obtain to individuals, as for Socrates in the Crito when he turns to transaction and ultimately consent to shore up his associative theory of political obligation.
• c. Consent theory is a hallmark the liberal tradition, although the tradition of ‘swearing fealty’ to authorities is more ancient than early modernity. Voluntary transactions, where Y expressly promises to obey X, seems to confer an obligation on X to fulfill this promise. However, very few citizens—soldiers and government officials notwithstanding—actually expressly promise to obey the government. Workarounds, like Locke’s famous notion of “tacit consent” or the Kantians’ hypothetical consent, lose the strength of actual consent and seem to fit more neatly with transaction theory (in Locke’s case) or natural duty (in Kant’s).
• d. Natural Duty. John Rawls’s theory of a natural duty of justice to support just institutions is the most popular theory of political obligation in the academy today. Granted that Y has an ethical duty to support just institutions in general, the problem is what particular institutions pertain to Y. Does Y have to support every just institution in the world? Rawls’s claim that certain institutions “apply to us” seems to introduce an arbitrary element. John Simmons calls this the “particularity problem”: “Only a willingness—which I certainly do not share—to regard as morally authoritative or unchallengeable the conventional or legal assignments of persons to particular states (based on individual accidents of birth and the deplorable history of states’ violent grabs for territories and peoples) would allow one to thing that justice of human rights could by themselves solve the problem of democratic legitimacy.”[4]

There is no straightforward way to deduce political legitimacy or political obligation from nature (see 5a and 5d) or historical actions of that many individuals seem to have made (see 5b and 5c).

6. Political theology is an alternative method of grounding political legitimacy and political obligation. Jesus’ claim to Pilate that “you would have no power over me if it were not given from one above” (John 19:11)—if this implicates God and involves a concept of authority rather than sheer power, a fair interpretation in light of Romans 13—suggests that theology is a sufficient and exclusive ground for legitimacy. In other words, perhaps Jesus’ remark implies there is no “purely” philosophical (i.e., non-theological) way to derive political authority without reference to God. Jesus could have told Pilate, “you would have no power over me if it were not given to you by the people,” since on Good Friday it appeared that Our Lord’s punishment enjoyed wide popular consent. But He did not.

7. In continuity with ancient thought, the Catholic tradition posits God as the ultimate source of political legitimacy, according to rationally derivable precepts of Nature—natural law. God and Nature, as opposed to History and General Will, roughly marks the division between ancient and modern sources of political legitimacy.

Legitimacy in Christian Philosophical Theology

8. Unitary papal authority or “plenitudo potestatis.” The Church has a unitary authority that stems from the Great Commission, which included (for some time) a temporal authority built out of the ruins of the Western Roman Empire. For some medieval theorists, this was rightfully a plenitude of ultimate authority—plenitudo potestatis—even in temporal matters. The doctrine of plenitudo potestatis approximates the modern concept of sovereignty (see Figgis 1960).[5]

9. A more common position in the Christian Age held that secular rulers have authority from God, independent of the pope (this is consonant with Romans 13). Against Figgis’s view of plenitudo potestatis as sovereignty, the medieval intellectual tradition worked out theological origins for secular rulers as well as papal authority. This is often called “two swords” theory. In his letter Duo Sunt (494), Pope Gelasius I distinguished the auctoritas pontificum and the regalis potestas. Auctoritas indicates moral authority (or “clout”) and in Roman law meant the power to delegate other authorities. But Gelasius suggests that God gives an independent authority, albeit over inferior matters, to secular ruler. This position, dualism, was advanced by Thomas Aquinas (Sent. II d. 44 ex ad 4), as well, later, by John of Paris and Dante in De Monarchia.

10. Political legitimacy is a negative doctrine in Western history because states stake out their political legitimacy against the power of the Church and, more specifically, the pope. The fourteenth-century circle around Ludwig of Bavaria, the Holy Roman Emperor, show this most clearly. For William of Ockham, scholars have the prerogative to put papal heresy on trial. For Marsilius of Padua, the sovereign Christian people ought to have the power to elect popes and bishops. When kingly states successfully won political legitimacy against the Church, they came into plenitudo potestatis of their own.

11. Unitary secular authority, or sovereignty (“souverainism”), stands athwart the Christian political tradition (with its characteristic ‘papist’ and ‘dualist’ tension). In contrast to the medieval tradition, where “dualism” or “pluralism” of political legitimacy was imaginable, modern notions of political legitimacy are all-or-nothing because they implicate the notion of sovereignty (Jean Bodin claimed to coin the term in his 1576 Les Six Livres de la République). Let us call this modern position of Bodin (and even more extreme in Thomas Hobbes), where state legitimacy is all-or-nothing—i.e. a state is either “sovereign” or totally “illegitimate”—souverainism. Even if modern states do not have a unitary personal sovereign, states as a whole are said to enjoy sovereignty as a basic principle of international law since the Peace of Westphalia (1648). This is simply assumed by most modern citizens and political philosophers, and souverainism functions as a kind of ideology.

12. Although modern debates over political legitimacy oscillate between souverainism and philosophical anarchism—“a state is either legitimate or it’s not”—pluralism suggests that officers of the state ought to be obeyed on some matters, but not on others. Many individuals who have political legitimacy from God: supranational, national, local, etc. Pluralism overcome the basics “negative argument” for political legitimacy (see 10) which has long been hostile to the Church.

• a. It is possible to possess political legitimacy without sovereignty, that is, to possess non-absolute rights to the obedience of others. Auctoritas, for the Romans, meant something like “clout”. Many political officials—teachers, police officers, social workers, etc.—might build up auctoritas in a community, special “recognition rights” that will cause prudent people to obey them in certain situations. Insofar as their efforts are pleasing to God, the Holy Spirit is at work among political officials, who are consequently owed obedience.
• b. The Roman legal fiction that the collective auctoritas of the people was an alienable item that could be vested in a single individual—the emperor—is the basis of modern theories of sovereignty.[6] In its bare, secular, non-theological form, this legal fiction cannot stand up to rational, philosophical examination (see 5).
• c. If recently founded modern (more or less) democratic regimes are indeed legitimate, this suggests a certain flexibility in how divine authority is conferred. To claim many individuals and regimes can earn legitimacy, as we have seen, has classical roots in Republican Rome and in Aristotle. Indeed, modern democratic regimes do appeal to God, for example, in the way that Jefferson’s Declaration of Independence or Lincoln’s Second Inaugural do. This does not mean, of course, that these regimes will not descend into tyranny. But does suggest that political legitimacy is easier to come by than medieval theorists (see 8 and 9) seemed to think.
• d. “Without justice, kingdoms are but large robber bands,” says Augustine in Book IV of City of God. Is the contrapositive of this statement true? It would seem that by exercising justice and promoting the common good, one would no longer be a robber, but a legitimate ruler. Anyone with an optimized scheme to promote the common good thereby obtains certain conditional legitimacy, or rights to obedience. This deflationary theory of political legitimacy, with its strong qualification of sovereignty, is consistent with the Christian tradition alongside the theological grounding of political legitimacy that one finds in Romans 13 and elsewhere.

13. Because political obligation is a divine command, found in Scripture and tradition, sedition is a sin (ST II-II Q. 42, A. 2). Sedition seems to foment strife, which Thomas argues is always to be avoided (ST II-II Q. 41 A. 1). This view is more critical of sedition than Thomas’s Commentary on the Sentences.

14. Resistance to tyranny does not however, constitute sedition (ST II-II Q. 42 A. 1).Seditious non-compliance with governments and resistance is possible so long as it does not engender strife. Thomas suggests under some constitutional orders, public authorities of the people can depose a tyrannical king who has not kept his “pact” with the people without engaging in sedition (DR 49).

• a. Tyrannical governments are those which have lost sight of the common good, Thomas argues, and where rulers thus pursue private advantage (DR 29). Thus, there should be peace even under a government that is morally illegitimate, the ability of the state to provide order is a precondition for the common good. If the state should wither away because of widespread non-compliance with unjust laws, this would be tantamount to indirect revolution. Were the American Republic reconstituted as a new politeia, it could indeed be imaginably more just.
• b. Among Thomists, there precedent for seeing liberal democracies as tyrannical. Charles de Koninck is worth quoting on the subject of a souverainist state that loses sight of the common good for some artificial fusion of the multitudinous private advantages of individual citizens. Such a state, “In short, the state understood in this sense, that is as a city congealed and closed in upon itself, is by nature tyrannical. It singularizes the common good; it denies its community. In the condition of liberty of this State, obedience is made the substitute for the legal justice…”[7]
• c. Political obligations to the common good, since they are ultimately obligations to God, do not cease in the absence of political legitimacy, or in the absence of commands to serve the common good. Therefore it is conceivable that one has a political obligation to create just institutions and public authorities where the de facto authorities do not act justly. Again, this need not lead to a direct confrontation with state authorities. Establishing competing political authorities may run athwart of modern conceptions of souverainism, but not the political pluralism understood by the Christian tradition.

This paper has attempted to present a deflationary argument (see 11 and 12) for the concept of legitimacy by opening up the possibility of plural political legitimacy. The Christian political tradition moves beyond the modern souverainist binary whereby governments are either legitimate or illegitimate.

No regime is sovereign—that is to say—legitimate in itself, somehow above the natural law. No assemblage of people is above the political obligation to the common good, or is legitimate except as a placeholder for the Kingdom of God. Certain officers of the United States of America have the right to be obeyed, when they promote the common good. But this is in the same way that a band of robbers would have the right to be obeyed, when they promote the common good.

This is not to say that promoting the common good automatically legitimates a regime; the duty to obey human law is always at the same time a duty to obey divine law, which establishes the common good in the first place. Prudentially, those that can be trusted promote the common good should be obeyed.

So what of Mr. Lendman’s concerns about the legitimacy of the United States government? There is no reason to insist that the United States government as a whole is politically legitimate or not. If fewer and fewer of its laws and officers are legitimate, this is no reason to despair, or issue calls to arms, as if the people of God have been abandoned to the absolute power of the modern state. Instead, God seems to offer a superabundance of political legitimacy; ordinary citizens can and should build political communities to challenge (without directly confronting) the souverainist modern state.

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[1] David Graeber, Debt: The First 5,000 Years (New York: Melville House, 2012), p. 342.

[2] Elizabeth Anscombe, “On the Source of the Authority of the State, in Authority, ed. Joseph Raz (New York University Press, 1990).

[3] A. John Simmons, Political Philosophy (Oxford: Oxford University Press, 2008).

[4] Ibid., p. 113.

[5] John Figgis, From Gerson to Grotius,1414-1625 (New York: Harper, 1960), pp. 44-45.

[6] F. H. Hinsley, Sovereignty, 2^nd ed. (Cambridge: Cambridge University Press, 1986), pp. 38-9; p. 82.

[7] Charles de Koninck,”The Primacy of the Common Good Against the Personalists,” The Writings of Charles de Koninck, Vol. 2 (University of Notre Dame Press, 2009), p. 106.