Rex Martin
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198292937
- eISBN:
- 9780191599811
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198292937.003.0009
- Subject:
- Political Science, Political Theory
This chapter is concerned with political obligation, i.e. with one's obligation to obey the laws of one's own country. Here, it is suggested that such an obligation (or one's ‘allegiance,’ as I ...
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This chapter is concerned with political obligation, i.e. with one's obligation to obey the laws of one's own country. Here, it is suggested that such an obligation (or one's ‘allegiance,’ as I prefer to call it) varies from system to system; it is one thing in Plato's republic but something quite different in a democratic system of rights. We are concerned, then, with the allegiance of a typical citizen, when acting in character, within a given system of political principles and institutions.It is argued that citizens have an obligation, a system‐specific duty, in a democratic system of rights to conform to the civil rights laws there. This institutional duty is then extended to take in one's duties towards some non‐rights laws (e.g. tax laws), but it never embraces literally all laws in that society. In the course of the analysis, the views of both John Simmons and John Rawls are criticized.Democratic institutions provide an example of an inherently imperfect procedure for making civil rights laws; the connection between such institutions and such laws represents at best only a probabilistic tendency. In the end, then, we find that citizens have no duty to conform to all non‐defective rights laws simply in so far as they are enacted laws; The typical citizen can be civilly disobedient with respect to some civil rights laws (subject to certain constraints, e.g. nonviolence) while still satisfying fully the conditions of allegiance in a democratic system of rights.Less
This chapter is concerned with political obligation, i.e. with one's obligation to obey the laws of one's own country. Here, it is suggested that such an obligation (or one's ‘allegiance,’ as I prefer to call it) varies from system to system; it is one thing in Plato's republic but something quite different in a democratic system of rights. We are concerned, then, with the allegiance of a typical citizen, when acting in character, within a given system of political principles and institutions.
It is argued that citizens have an obligation, a system‐specific duty, in a democratic system of rights to conform to the civil rights laws there. This institutional duty is then extended to take in one's duties towards some non‐rights laws (e.g. tax laws), but it never embraces literally all laws in that society. In the course of the analysis, the views of both John Simmons and John Rawls are criticized.
Democratic institutions provide an example of an inherently imperfect procedure for making civil rights laws; the connection between such institutions and such laws represents at best only a probabilistic tendency. In the end, then, we find that citizens have no duty to conform to all non‐defective rights laws simply in so far as they are enacted laws; The typical citizen can be civilly disobedient with respect to some civil rights laws (subject to certain constraints, e.g. nonviolence) while still satisfying fully the conditions of allegiance in a democratic system of rights.
Rex Martin
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198292937
- eISBN:
- 9780191599811
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198292937.003.0013
- Subject:
- Political Science, Political Theory
We return in this chapter, to the issue of the justification of political authority; it is argued here that the notion of political authority is internally justified in a given political system if ...
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We return in this chapter, to the issue of the justification of political authority; it is argued here that the notion of political authority is internally justified in a given political system if the main elements in that notion —that is, the title to issue rules, a reasonable presumption of compliance, and the government's rightful monopoly in the use of coercive force – are actually ingredient in the theoretic structure of the system under review. Thus, it is the coherence of the background theory (the coherence of a democratic system of rights), in which each of the authority elements can be shown to have a necessary place that justifies authority in that particular political system.In developing this line of argument, we come to see that the priority rule (from Ch. 7) has to be modified. We do so by introducing the notion of basic rights: such rights are those civil rights (e.g. freedom of political speech or liberty of conscience) that have passed the double test of being enacted by legislative majorities and of being affirmed and, then, supported over the years by checking devices (such as judicial review). They are rights that have survived the scrutiny of time and experience and public discussion; they have been winnowed by the self‐correcting character of the democratic process, and now continue to enjoy a very high level of social consensus support. Basic rights, as understood here, are the rights that have the top priority in a democratic system of rights.Less
We return in this chapter, to the issue of the justification of political authority; it is argued here that the notion of political authority is internally justified in a given political system if the main elements in that notion —that is, the title to issue rules, a reasonable presumption of compliance, and the government's rightful monopoly in the use of coercive force – are actually ingredient in the theoretic structure of the system under review. Thus, it is the coherence of the background theory (the coherence of a democratic system of rights), in which each of the authority elements can be shown to have a necessary place that justifies authority in that particular political system.
In developing this line of argument, we come to see that the priority rule (from Ch. 7) has to be modified. We do so by introducing the notion of basic rights: such rights are those civil rights (e.g. freedom of political speech or liberty of conscience) that have passed the double test of being enacted by legislative majorities and of being affirmed and, then, supported over the years by checking devices (such as judicial review). They are rights that have survived the scrutiny of time and experience and public discussion; they have been winnowed by the self‐correcting character of the democratic process, and now continue to enjoy a very high level of social consensus support. Basic rights, as understood here, are the rights that have the top priority in a democratic system of rights.
Rex Martin
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198292937
- eISBN:
- 9780191599811
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198292937.003.0008
- Subject:
- Political Science, Political Theory
Arguments are developed here that allow us to rank the relevant disparate options. This ranking involves two main steps: (1) putting option (a) ahead of option (b) – that is, putting (a) policies and ...
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Arguments are developed here that allow us to rank the relevant disparate options. This ranking involves two main steps: (1) putting option (a) ahead of option (b) – that is, putting (a) policies and laws that are in the interests of each and all ahead of (b) policies and laws concerned with things that are in the corporate or collective interest, such as GDP, though these things are not necessarily in the interests of each person there; and then (2) putting options (a) and (b) ahead of option (c), putting them ahead of policies and laws that help mere majority interests or even hurt minority interests (with the proviso added that allowed instances of (c) must be compatible with the first two options—otherwise they are simply excluded).Thus, where democratic institutions stay in line with that which justifies them, they will in fact tend to produce civil rights laws and they will not act so as to supersede such rights. There is a deep affinity between the idea of civil rights as justified and that of justified democratic institutions; the two are mutually supportive; accordingly, they can form a coherent system. In this system, democratic institutions must, where they stay true to their own justifying rationale, be constrained so as to observe the established priorities; taking such an approach has implications for institutional design (it can, for example, provide for a justification of judicial review that is compatible with democratic ideals).The chapter concludes by considering certain troubling problems that arise for democratic theory: problems such as cyclical majorities and strategic voting; these problems are not negligible but they can be dealt with given the resources of a democratic system of rights.Less
Arguments are developed here that allow us to rank the relevant disparate options. This ranking involves two main steps: (1) putting option (a) ahead of option (b) – that is, putting (a) policies and laws that are in the interests of each and all ahead of (b) policies and laws concerned with things that are in the corporate or collective interest, such as GDP, though these things are not necessarily in the interests of each person there; and then (2) putting options (a) and (b) ahead of option (c), putting them ahead of policies and laws that help mere majority interests or even hurt minority interests (with the proviso added that allowed instances of (c) must be compatible with the first two options—otherwise they are simply excluded).
Thus, where democratic institutions stay in line with that which justifies them, they will in fact tend to produce civil rights laws and they will not act so as to supersede such rights. There is a deep affinity between the idea of civil rights as justified and that of justified democratic institutions; the two are mutually supportive; accordingly, they can form a coherent system. In this system, democratic institutions must, where they stay true to their own justifying rationale, be constrained so as to observe the established priorities; taking such an approach has implications for institutional design (it can, for example, provide for a justification of judicial review that is compatible with democratic ideals).
The chapter concludes by considering certain troubling problems that arise for democratic theory: problems such as cyclical majorities and strategic voting; these problems are not negligible but they can be dealt with given the resources of a democratic system of rights.
Rex Martin
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198292937
- eISBN:
- 9780191599811
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198292937.001.0001
- Subject:
- Political Science, Political Theory
The justification of political authority (the authority of the state) is one of the long‐standing issues of political philosophy, and one that persistently defies satisfactory solution. This book ...
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The justification of political authority (the authority of the state) is one of the long‐standing issues of political philosophy, and one that persistently defies satisfactory solution. This book sets out to provide an original justification by establishing a background framework for dealing with the problem.The book begins (in Ch. 1) by identifying the main elements of authority, arguing that they need to be linked in order to create a political authority that can be described as justified. It then sketches a framework—–a sample system of political institutions and conceptions that are internally coherent—to link these elements.The rest of the book fills in this outline. Chs. 2–5 argue that rights are established patterns of acting or of being treated and are hence essentially institutional in character. The institutions that tend to be the most reliably supportive, and productive, of individual rights are, the book argues, democratic ones, and the central section of the book (in Chs. 6 and 7) is devoted to the connection of rights with majority rule, democratic political institutions, and conceptions. From this nexus, secondary lines of connection are traced to political obligation (or allegiance), in Ch. 8, and to an eligible justification for using punishment to enforce the rights of individuals (in Chs. 9–11).The final chapters of the book return to the issue of the justification of authority raised in the introductory chapter. Here, the book looks first at internal political justification (in Ch. 12). Then, after the question of the justification of political authority, on the grounds of internal coherence, has been canvassed within confines set out in the book to date, the book turns, last of all (in Ch. 13), to the difficult subject of the possibility and character of an ultimate and nonpolitical vindication for what has been called a system of rights.Thus, the book's overall analysis forms a distinctive and systematic approach to one particular style of governmental institutions and ideas.Less
The justification of political authority (the authority of the state) is one of the long‐standing issues of political philosophy, and one that persistently defies satisfactory solution. This book sets out to provide an original justification by establishing a background framework for dealing with the problem.
The book begins (in Ch. 1) by identifying the main elements of authority, arguing that they need to be linked in order to create a political authority that can be described as justified. It then sketches a framework—–a sample system of political institutions and conceptions that are internally coherent—to link these elements.
The rest of the book fills in this outline. Chs. 2–5 argue that rights are established patterns of acting or of being treated and are hence essentially institutional in character. The institutions that tend to be the most reliably supportive, and productive, of individual rights are, the book argues, democratic ones, and the central section of the book (in Chs. 6 and 7) is devoted to the connection of rights with majority rule, democratic political institutions, and conceptions. From this nexus, secondary lines of connection are traced to political obligation (or allegiance), in Ch. 8, and to an eligible justification for using punishment to enforce the rights of individuals (in Chs. 9–11).
The final chapters of the book return to the issue of the justification of authority raised in the introductory chapter. Here, the book looks first at internal political justification (in Ch. 12). Then, after the question of the justification of political authority, on the grounds of internal coherence, has been canvassed within confines set out in the book to date, the book turns, last of all (in Ch. 13), to the difficult subject of the possibility and character of an ultimate and nonpolitical vindication for what has been called a system of rights.
Thus, the book's overall analysis forms a distinctive and systematic approach to one particular style of governmental institutions and ideas.
Rex Martin
- Published in print:
- 1997
- Published Online:
- November 2003
- ISBN:
- 9780198292937
- eISBN:
- 9780191599811
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198292937.003.0014
- Subject:
- Political Science, Political Theory
The internal coherence of any system of political institutions and ideas is only one of the considerations we must have in mind in an account of ultimate justification; there is also the idea of a ...
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The internal coherence of any system of political institutions and ideas is only one of the considerations we must have in mind in an account of ultimate justification; there is also the idea of a critical moral justification for it. Thus, the book turns, last of all, to the subject of the possibility and character of such vindication for a system of rights.Two principal theories are canvassed in this regard: the indirect utilitarianism of J. S. Mill and more recent utilitarian thinkers and the contractarian moral justification elaborated by John Rawls in his Theory of Justice (and for several years thereafter). The utilitarian theory is set aside first; it is fundamentally unable to provide a principled justification for the priority of basic rights over policies justified by considerations of aggregate benefit or general well being. And Rawls's contractarianism is set aside as failing in one of its own self‐appointed tasks: it cannot provide an objective basis for assessing competing political or moral theoriesThese two failures to provide, from among leading contemporary moral theories, a critical moral grounding for a democratic system of rights do not serve to establish the creditability of philosophical anarchism; but it is clear, nonetheless, that more than was initially thought to be involved will be required in order to do the job effectively.The chapter and the book, conclude with a brief survey of the tasks of political theory and of what has been accomplished to date. The idea of a system of rights is one of the great ideas of political philosophy and, unlike many of these ideas, it is still a living one; so, some suggestions are made about the way forward.Less
The internal coherence of any system of political institutions and ideas is only one of the considerations we must have in mind in an account of ultimate justification; there is also the idea of a critical moral justification for it. Thus, the book turns, last of all, to the subject of the possibility and character of such vindication for a system of rights.
Two principal theories are canvassed in this regard: the indirect utilitarianism of J. S. Mill and more recent utilitarian thinkers and the contractarian moral justification elaborated by John Rawls in his Theory of Justice (and for several years thereafter). The utilitarian theory is set aside first; it is fundamentally unable to provide a principled justification for the priority of basic rights over policies justified by considerations of aggregate benefit or general well being. And Rawls's contractarianism is set aside as failing in one of its own self‐appointed tasks: it cannot provide an objective basis for assessing competing political or moral theories
These two failures to provide, from among leading contemporary moral theories, a critical moral grounding for a democratic system of rights do not serve to establish the creditability of philosophical anarchism; but it is clear, nonetheless, that more than was initially thought to be involved will be required in order to do the job effectively.
The chapter and the book, conclude with a brief survey of the tasks of political theory and of what has been accomplished to date. The idea of a system of rights is one of the great ideas of political philosophy and, unlike many of these ideas, it is still a living one; so, some suggestions are made about the way forward.
Allen Buchanan
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199325382
- eISBN:
- 9780199369300
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199325382.003.0004
- Subject:
- Philosophy, Political Philosophy
This chapter undertakes the first two justificatory tasks: making a complex moral case for having a system of international legal human rights similar to the one that exists and making headway on the ...
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This chapter undertakes the first two justificatory tasks: making a complex moral case for having a system of international legal human rights similar to the one that exists and making headway on the question of which specific norms ought to be included in it. With respect to the former question of justification, the chapter sets out three distinct justificatory arguments. The first identifies seven important benefits a system of international legal human rights similar to the existing one can provide for a wide range of actors, including states. The second argument shows that having such a system is morally obligatory, given the risks that the existing international order imposes on individuals by conferring eminently abusable powers and privileges on states. The third argument shows that states and the governments that act in their name have a special obligation to support such a system, because they are the chief benefiaries of the flaws of the international order that the system helps ameliorate. The latter part of the chapter provides fairly detailed sketches of justifications for representative rights from each of the major categories of human rights: civil and political rights, economic rights and economic liberty rights, the right to democratic government, and rights of physical security.Less
This chapter undertakes the first two justificatory tasks: making a complex moral case for having a system of international legal human rights similar to the one that exists and making headway on the question of which specific norms ought to be included in it. With respect to the former question of justification, the chapter sets out three distinct justificatory arguments. The first identifies seven important benefits a system of international legal human rights similar to the existing one can provide for a wide range of actors, including states. The second argument shows that having such a system is morally obligatory, given the risks that the existing international order imposes on individuals by conferring eminently abusable powers and privileges on states. The third argument shows that states and the governments that act in their name have a special obligation to support such a system, because they are the chief benefiaries of the flaws of the international order that the system helps ameliorate. The latter part of the chapter provides fairly detailed sketches of justifications for representative rights from each of the major categories of human rights: civil and political rights, economic rights and economic liberty rights, the right to democratic government, and rights of physical security.
Allen Buchanan
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199325382
- eISBN:
- 9780199369300
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199325382.003.0001
- Subject:
- Philosophy, Political Philosophy
The subject of this book is the moral assessment of the system of international legal human rights. This legal system is the heart, or core of modern human rights practice. International legal human ...
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The subject of this book is the moral assessment of the system of international legal human rights. This legal system is the heart, or core of modern human rights practice. International legal human rights—not some philosopher’s theory of moral human rights nor a “folk” conception of human rights—provide the moral lingua franca of modern human rights practice. The practical effect of international legal human rights exceeds their legal reach: Various actors are sometimes able to hold states accountable for violations of international legal human rights even in the absence of clear legal duties on the part of the states in question. Given the pivotal role of international legal human rights in modern human rights practice, a moral assessment of the practice must begin with a moral assessment of the system of international legal human rights. The key question is whether it is morally justifiable to have a system of this sort, given the functions it is designed to serve and the claims of authority made on its behalf.Less
The subject of this book is the moral assessment of the system of international legal human rights. This legal system is the heart, or core of modern human rights practice. International legal human rights—not some philosopher’s theory of moral human rights nor a “folk” conception of human rights—provide the moral lingua franca of modern human rights practice. The practical effect of international legal human rights exceeds their legal reach: Various actors are sometimes able to hold states accountable for violations of international legal human rights even in the absence of clear legal duties on the part of the states in question. Given the pivotal role of international legal human rights in modern human rights practice, a moral assessment of the practice must begin with a moral assessment of the system of international legal human rights. The key question is whether it is morally justifiable to have a system of this sort, given the functions it is designed to serve and the claims of authority made on its behalf.
- Published in print:
- 2011
- Published Online:
- June 2013
- ISBN:
- 9780804769129
- eISBN:
- 9780804777810
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804769129.003.0003
- Subject:
- Law, Philosophy of Law
Jürgen Habermas's analysis of modern law is based on the social condition that he calls the “rationalization of the lifeworld.” He argues that through this process of rationalization, the cultural ...
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Jürgen Habermas's analysis of modern law is based on the social condition that he calls the “rationalization of the lifeworld.” He argues that through this process of rationalization, the cultural tradition has been largely secularized and has lost much of its power to prescribe in advance the division of labor and social roles. While he views communicative action as a means to coordinate action and integrate society, he insists that it is not the only mechanism. These difficulties are addressed by modern law, which Habermas argues has the power to steer actors' choices through sanctions and has claim to legitimacy. The idea that a legal order's legitimacy buttresses its long-run stability is a key assumption of social theory and features prominently in Max Weber's sociology of law. This chapter explores Habermas's reconstruction of modern law, as well as the tensions between ideal and empirical validity and the tensions between legitimacy and enforcement. It also considers Habermas's argument about the tension between facticity and validity, his account of the system of rights, and his notion of the constitutional state.Less
Jürgen Habermas's analysis of modern law is based on the social condition that he calls the “rationalization of the lifeworld.” He argues that through this process of rationalization, the cultural tradition has been largely secularized and has lost much of its power to prescribe in advance the division of labor and social roles. While he views communicative action as a means to coordinate action and integrate society, he insists that it is not the only mechanism. These difficulties are addressed by modern law, which Habermas argues has the power to steer actors' choices through sanctions and has claim to legitimacy. The idea that a legal order's legitimacy buttresses its long-run stability is a key assumption of social theory and features prominently in Max Weber's sociology of law. This chapter explores Habermas's reconstruction of modern law, as well as the tensions between ideal and empirical validity and the tensions between legitimacy and enforcement. It also considers Habermas's argument about the tension between facticity and validity, his account of the system of rights, and his notion of the constitutional state.
Allen Buchanan
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199325382
- eISBN:
- 9780199369300
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199325382.003.0008
- Subject:
- Philosophy, Political Philosophy
This chapter recaps the central methodological themes of the book, lists ten major conclusions, and then identifies several key challenges to the system of international legal human rights. It argues ...
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This chapter recaps the central methodological themes of the book, lists ten major conclusions, and then identifies several key challenges to the system of international legal human rights. It argues that the chief limitations or deficiencies of the system stem from the fact that it is primarily designed to cope with problems resulting from the behavior of states toward those under their jurisdiction. Such a system, unless altered significantly, is not well-suited to deal with the effects of an unjust global basic structure of institutions, emergent cumulative harms such as those produced by global climate change, and injustices resulting from the extreme inequality of power among states.Less
This chapter recaps the central methodological themes of the book, lists ten major conclusions, and then identifies several key challenges to the system of international legal human rights. It argues that the chief limitations or deficiencies of the system stem from the fact that it is primarily designed to cope with problems resulting from the behavior of states toward those under their jurisdiction. Such a system, unless altered significantly, is not well-suited to deal with the effects of an unjust global basic structure of institutions, emergent cumulative harms such as those produced by global climate change, and injustices resulting from the extreme inequality of power among states.