A Moral Obligation to Obey the State

333A MORAL OBLIGATION TO OBEY THE STATEThe Journal of Value Inquiry 34: 333–347, 2000.© 2000 Kluwer Academic Publishers. Printed in the Netherlands.

A Moral Obligation to Obey the State

CHRISTOPHER TUCKERDepartment of Philosophy, University of Waterloo, Waterloo, Ontario, N2L 3G1, Canada

1. Instrumental Contractarianism

The type of contractarianism that we will consider is sometimes calledinstrumental contractarianism. Its most well-known advocate is DavidGauthier. To an instrumental contractarian, a moral code and a legal systemare only justified if they could be the result of an agreement made byhypothetical, perfectly rational agents. Morality, from a contractarianstandpoint, is any set of voluntarily acquired internal constraints on utilitymaximizing behavior that it is rational for each agent to adopt, given that otheragents adopt the constraints as well.

Instrumental contractarians adopt an economic conception of rationality,supposing that to be rational is to act in such a way as to maximize expectedutility, where utility is understood as a measure of subjective and relativepreference. If a set of moral or political constraints is to be justified, then, itmust be shown that it would maximize the expected utility of each agent toadopt it, provided other agents do as well. On the instrumental conception ofrationality which contractarians accept, the degree to which our preferenceswould be satisfied by some choice or action determines the rationality orirrationality of the choice or action. Because it is a maximizing account ofrationality, an option cannot be rationally chosen if it is expected to give lesssatisfaction than a viable alternative. Thus if a particular moral code is justified,its adoption must be expected to serve the preferences of all the agents to begoverned by it better than any viable alternative.

Instrumental contractarians must show that morality is rational, if they areto account for the authoritative nature of morality. They demonstrate therationality of morality by arguing that some set of constraints would be agreedto by rational agents in a choice situation in which agents are unfettered byconstraints of morality. Since persons are not bound by any set of constraintsupon their actions prior to reaching an agreement, instrumental contractariansmust also show that the constraints of morality are preferable to no restraintsat all.

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2. Perfect Rationality

Contractarians often speak of the agents who are to choose principles ofmorality as perfectly rational hypothetical agents. The term “perfectly rational”has a fairly specific meaning in this context. It implies that an agent has perfectinformation about her own preferences and the preferences of all the otheragents with whom she is to choose the principles of morality, all the possiblechoices open to herself and the other agents, and the expected utility payoffsfor each agent of each possible outcome of choice. Perfect rationality alsoimplies that each person accrues no costs in the bargaining and deliberatingprocedures.

Gauthier suggests that there are two related reasons for imposing therequirement of perfect rationality upon the participants who are to choose amoral code. First, introducing agents with imperfect knowledge would obscurethe structure of rational interaction, and thereby the structure of morality.1

Second, agents with less than perfect knowledge would be unable to producefor themselves the tenets of morality.2 We might add to these considerations asuggestion that any agreement reached by less than fully rational agents wouldbe unstable. Since it is in the interests of all agents to avoid instability if theycan, the idealization can be justified.

Perfectly rational agents are also ideal because they are not susceptible tobargaining costs. Whereas actual agents are often pressured into reaching aless than optimal agreement in order to reduce the costs of bargaining, andthose with greater resources or resolve can hold out for more favorable terms,the ideal agents of contract theory have no reason to settle for an agreementthat gives them less than they could rationally demand. This idealization canalso be understood as designed to reduce instability. If agents made agreementsthat did not provide them with the most they could rationally demand, becauseof a desire to avoid or reduce the costs of bargaining, then they might seek are-negotiation. History has certainly made clear how costly the results ofinstability can be.

3. The Preferences of Agents

The agents of contract theory are also represented as hypothetical. Since noactual person is perfectly rational, it is obvious that the agents discussed incontractarianism must be hypothetical. But “hypothetical” has a more precisemeaning here. A hypothetical agent has a preference set which does notcorrespond to the desire set of any actual person. Contract theorists typicallyexclude some of the specific preferences which persons have in an attempt tojustify a general morality that follows only from the fact that we are agentswho have desires. Gauthier, for example, stipulates that hypothetical agents

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335A MORAL OBLIGATION TO OBEY THE STATE

have no desires which arise from the particular character of any actual society.This drastically reduces the number of preferences agents bargain to maximizethe satisfaction of. When tuistic and moral preferences are added to the list ofpreferences that are to be excluded from bargaining, it becomes apparent thatthe hypothetical agents introduced by Gauthier bargain to maximize on a verysmall set of interests indeed.3

The use of fully rational hypothetical agents in contractarianism, whosedesires are not in any way shaped by the particular character of their societyor their ties to other individuals within society, has seemed suspect to manycritics of a contractarian approach. Communitarian critics insist that separatingindividuals from their group, and political theory from the community, is afundamental mistake. Even among philosophers who are sympathetic to thecontractarian approach, many wonder how a moral or legal schema can bejustified for not-so-perfectly-rational, socially formed, actual agents, on thebasis of its acceptability to such idealized agents. Perfect rationality is requiredfor the stability of the resulting agreement, but why should actual agents bebound by the agreement of agents whose desires differ so radically from theirown? Gauthier’s reply is illuminating.

What would be agreed to [by rational agents with socially formed desires]proves unstable when it comes into conflict with what would have beenagreed to in an appropriate presocial context. . . .

Think of moral principles as constituting that part of the structure ofpractices and institutions, constitutive of a society, that requires individualconstraint. Now in an ongoing society, the principles, and more generallythe structure of institutions and practices, that would obtain agreement willreflect the existing character of the society, insofar as this affects, as it doesand must, the negotiating powers of the individual members. But theexisting character of the society is not itself the product of rationalagreement. Thus, if the principles resulting from agreement differ from thosepreviously accepted, as we may suppose that they will, each person willview the choice of constraining principles as itself determined in part bythe very principles supplanted by the choice, and so by principles whoserationality, as constraints, has been called into question and found wanting.And this now calls the rationality of the agreed principles into question. Inundermining the moral status quo, the newly agreed moral constraintsundermine themselves. Finding good reason to reject constraints that donot command their agreement, the members of society find equally goodreason to reject constraints that command their agreement only because ofthe effect of other constraints that they have good reason to reject.4

Gauthier emphasizes that what we would agree to is determined by our interestsand negotiating power, and that our interests and power are determined by

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the character of our society, the rationality of which has been called intoquestion. Insofar as the character of our society has been called into question,the rationality of our preferences has also been called into question. We should,therefore, rationally prefer to be bound by an agreement which arises eitherfrom a desire set that is not based upon experiences drawn from any particularsociety or a preference set which would have arisen had the preferencesdeveloped in a just society.

Either resolution to the problem of socially formed preferences isproblematic. We would surely do well to remember Hume’s famous dictum,that “ ‘Tis not contrary to reason to prefer the destruction of the whole worldto the scratching of my finger.”5 On an instrumental conception of rationality,it is our preferences which determine the rationality or irrationality of a possibleaction. Agents can, consistently with instrumental rationality, replace one setof desires with another, on the condition that having the second set of desiresis expected to maximize the satisfaction of the first set. But agents cannot rejectthe rationality of maximizing the satisfaction of their desires because thedesires were not rationally chosen.

Gauthier’s proposal is an instance of a more general claim that an agentshould not choose to maximize the preferences which he has, because theyare not the preferences he would have had if he were in a different situation.Such a position is difficult to reconcile with a commitment to instrumentalrationality. Insofar as a rational action just is the maximizing of expectedpreference satisfaction, what Gauthier proposes is irrational for actual agents.From the point of view of an actual agent, it is not agreement based on sociallyformed and rationally questionable preferences that is unstable, as Gauthiersuggests, but Gauthier’s proposal instead. Agents would recognize that theywould do better on their own terms if they bargained with an eye tomaximizing their actual preference set, and this would undermine theidealized, hypothetical contract of presocial agents.

Actual agents will not find it rational to accept a contract designed aroundpreferences other than their own. This point is a general one. In order forcontract theory to be recommended to, and thus apply to, actual agents, theagents involved in the contract must be their perfect counterparts. They mustbe perfectly rational and have the actual desire set of the agents in the realworld to whom this contract would apply. A contract built on any other groundwould be unstable in the actual world. Agents would reject the contract ofhypothetical agents in favor of something which suited their preferences better.

4. The Circumstances of Agents

Instrumental contractarians attempt to justify the adoption of any moral orpolitical institution by first arguing that agents would find it in their interests

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to adopt some restraints rather than remain in a state of affairs in which noagent is restrained at all. A state without moral or political constraints is theclassic state of nature. One of the stronger arguments to justify the adoptionof restraints in the state of nature is that the trust resulting from the restraintsmakes possible mutually beneficial cooperation. Each perfectly rational agent,examining how he would likely fare in the absence of any system of rulesgoverning all, would conclude that he would do better if there were some setof rules in place, so that he may trust other agents sufficiently well to allowfor cooperation and its benefits.

Constructions of the pre-social state of nature offered by differentcontractarians differ in important ways. But there are also some features commonto many of the constructions. One requirement that many contractarians imposeon the state of nature is that agreement within it must be freely given. Eachagent must freely consent to the bargain if the terms of the agreement are tobe normatively authoritative. As a corollary, no agent may be coerced intothe agreement.6 Thus coercive practices must not be a part of the originalposition. Some contractarians go further still, and suggest that any benefitscoercively gained prior to the social contract must be returned to the partiesfrom whom they were taken prior to entering into bargaining. Gauthierendorses each of these claims.

Gauthier makes much use in Morals By Agreement of an example in whichmasters and slaves come to an agreement regarding their future interactions.The status quo is a condition of slavery maintained by coercion. But the meansof coercion are costly for both the masters, who must pay for them, and the slaves,who must suffer their application. It would be better for the slaves to be freed,and it would be better for the masters if the slaves freely performed theirpreviously imposed duties. The masters realize this, and propose the followingdeal to the slaves: agree to perform your duties freely and well, and we willgive you your freedom and destroy the means of coercion. The slaves agree,but do not comply with the agreement once the means of coercion are destroyed.The reason, Gauthier asserts, is that the agreement was coercively based andcontracts based on coercion are not stable. Thus Gauthier concludes that “allthe effects of taking advantage must be removed from the initial position.”7

Gauthier is partly correct. The agreement between the masters and slaveswould not be stable if the means of coercion were dissolved. It does not followfrom this, however, that all or even most agreements made from a coercivesituation will be unstable. The instability in the master and slave exampleresults from the dissolution of the means of coercion. In effect, the scenarioGauthier presents is unstable because he incorporates into the agreement aredistribution of threat advantage by leveling the playing field. This does notshow that coercive practices must be absent for a stable agreement to result,but only that any attempt to dismantle a coercive institution proceeds at greatrisk to the coercers.

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Nor need the fruits of coercive practices be returned to the person whowas taken advantage of in the pre-contract situation. Because the pre-contractstate is also a pre-moral state, there is, by definition, no moral reason to returnthe coerced advantage. Gauthier insists, however, that when individualscome together to adopt a social contract the effects of past coercive activitiesbecome relevant because they influence the relative positions of powerenjoyed by the bargainers. The weaker party, who has been exploited by pastcoercive practices, could not rationally dispose himself to agree to a bargainwhere the benefits gained from the bargain are divided on the basis ofindividual power, if the power was gained through coercive practices. Sucha disposition would encourage predatory activities by other agents. This is,of course, an empirical prediction, and subject to a number of contingencies.Even if we grant Gauthier his prediction, however, Jean Hampton has notedthat “[t]he predators would point out that no one would lose, and everyonewould gain, from this deal” which springs from the benefits of past predatoryactivities remaining as they are.8 Were the weak to try to object to thisproposed method of division, “because they are weak, blocking this[suggestion] would be difficult.”9 The strong have sufficient resources tohold out for a division of the cooperative surplus that is most beneficial tothem, and have good reason to do so. The division is also in the interests ofthe weaker party, albeit not in their best interests, and rationality woulddictate to the weak that they accept the deal, there being no feasiblealternative which affords greater advantage.10 Thus there seems no generalreason why the benefits of prior predation must be redistributed before amutually beneficially agreement can be reached.

Contractarianism has made much use of the hypothetical state of nature indetermining the output of a contract theory. It has been wrong to do so. Anyproposed contract which takes as a starting point the state of nature will beunacceptable to a significant portion of any given population, and as a result,no voluntary agreement will take place. Invoking the state of nature strips awayany differential advantages which existing social institutions, including moraland political institutions, have rendered to some. Appealing to a state of naturehas the effect of leveling the playing field, for in it the powers of all persons areroughly equal. Given that an agent’s power in the bargaining situation impactshow well she can expect to do under the agreement, the assumption of a state ofnature ensures a more equal outcome from the bargaining process than wouldresult if agents were allowed to bargain from unequal positions of power.

Even rough equality does not exist in the actual world. Persons have moreor less power than one another, sometimes to a staggering degree of difference.In a state of nature, each person has roughly the same power, and as a result,roughly the same say in the content of any proposed bargain. In the actualworld, some people have considerably more power than others. Those whoare more powerful have good reason to resist any proposal that would result

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in a lessening of their comparative advantage. Their interests would be lesswell served if they had less say in the bargaining process. Given this, we haveto suppose that any state of affairs which resulted from a contract based onthe original position would be unstable. More powerful agents would havegood reason to reject it, and propose something which is more favorable totheir interests. Given that they are stronger, there is good reason to supposethat they will get their way. Contract theory must then abandon bargainingfrom a state of nature, and bargain instead from the status quo. Contract theorymust also abandon efforts to illicitly smuggle into the theory a supposition ofthe equal worth of persons.

Some philosophers will respond that if we do not insist on the equality ofpersons, then what results from the bargain will not be morality, or that thepolitical system which results will not be justified. We must carefully assessthe reason that underlies this worry. If, as seems likely, this objection is drivenby an intuition that equality is an essential ingredient of morality, then it shouldfail to convince a contractarian. Contractarians cannot assume that any moralintuition is justified. Anyone who is convinced that recognition of the equalworth of persons is a necessary pre-condition for the emergence of moralitymust also be convinced that contractarianism is ill-conceived. Contractarianscan only build their moral theory on what agents would rationally agree to;contract theory stands or falls on the consistent application of this principle.And it is clear that agents would not agree to a state of nature as the baselinefor the justification of moral and political institutions. Agents would not agreeto any system of constraints which entails a redistribution of power designedto promote equality of resources. This does not imply that the resulting moralor political system will endorse preferential treatment. The agreement maywell include principles which reflect a recognition of the equal moral worthof persons. The argument here just suggests that the proper starting point forbargaining is not one which forces agents to bargain as if they had equalbargaining power.

5. Rational Self-effacement

We allowed that rationality can recommend to us the adopting of a differentset of preferences than we have if acting in accordance with the dictates ofthe new set of preferences is expected to maximize the satisfaction of theoriginal set. Gauthier suggests something of this sort when he recommendsthat rational agents adopt a disposition which he calls “constrainedmaximization.” Gauthier suggests that agents who recognize the value ofbeing someone with whom cooperation is possible would do better by theiroriginal preferences if they internalized preferences for interaction whichinclude a desire to cooperate with other agents who are similarly disposed.

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Sometimes it is not enough to simply add a new preference to our existingpreference set, but instead new preferences must be adopted in place of somedesires that are currently held. In order for the new desire set to be effectivein motivating action, it may also be necessary for an agent to self-efface theoriginal desires which the new desires replace. If the original desire is notrejected, then one of two things could happen, depending on the weight ofthe conflicting desires. The desires, if of equal weight and opposed, wouldcancel each other out, and thus fail to maximize the satisfaction of the originalset of preferences. If the desires were of unequal weight and opposed, theninsofar as it was rational to replace the original with its proposed successor,the effectiveness of the first desire in prompting action would impede themaximal satisfaction of the original preference set because it would impedeacting upon the substituted desire.

If it has been determined that the self-effacement of a desire is expectedto maximize the satisfaction of the original preference set of an individual,then that individual would also have reason to self-efface any beliefs whichhe has that would lead to the re-acquisition of the original desire. Thuscontractarians should accept the potential rationality of the self-effacementof existing desires and beliefs. Whether such preference and belief revisionis in fact rational will depend, of course, just on whether adopting a new setof desires and beliefs is expected to maximize the satisfaction of the originalpreference set.

Self-effacement is related specifically to instrumental contractarianism inthe following way. In order for a hypothetical contract made by perfectlyrational agents to provide a justification for morality, the contract must be theresult of interests which developed not from a presocial or just setting, butfrom the actual circumstances of the agents to be bound by the contract.Further, while it is not rational to exclude interests from the bargaining tablebecause they were acquired in a situation which was not rationally adopted, itis rational to adopt a new desire set if it is expected to maximize satisfactionof the original. In order to effectively revise his preferences, an individual maynot only have to adopt new desires, and give up some old ones, but also giveup certain beliefs, insofar as those beliefs have been discovered to likely resultin a re-adoption of the original desires.

6. Political Obligation

It is to actual agents which contractarian theory, indeed any moral or politicaltheory, should apply. One of the results of taking this thought seriously is thatcontractarianism, for the sake of the stability of the agreement, must make useof the preferences of the agents as they exist. Furthermore, actual agents willbargain, not from a pre-social state of nature, but from the status quo.

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Of utmost importance for our purposes, the status quo will almost certainlyinvolve a fairly robust political state. Under fairly common conditions, thisfact will result in two distinct obligations. First, inasmuch as the existing staterenders agents better off than the complete removal of the state at that time,agents have a contractarian obligation to adopt the belief that they have a moralobligation to obey the laws of the state. This obligation will obtain in anysituation in which the continuation of the existing state is preferred by eachperson to its dissolution. The relevant comparison, then, is between the existingsocial state and a post-social state of affairs. If it is not the case that each agentprefers the continuation to the dissolution of the existing state, then given acontractarian’s commitment that the resulting bargain need be in each theinterests of every agent, no contractarian obligation occurs.

It is plausible to suppose that this line of reasoning would support a moralobligation to many existing states. This does not entail that an existing stateis a Pareto-optimal arrangement. It is likely that there are many Pareto-superiorimprovements that could be reached from the status quo. If it is in the interestsof some agents to have the system of laws changed, and in the interests of noone to not have the system so changed, there also exists a contractarianobligation to bring about possible Pareto-superior changes.

This understanding of the context of choice differs significantly from theorthodox approach. Most instrumental contractarians submit that normativeconstraints are justified if they would be the result of an agreement madeby perfectly rational agents from a pre-social state of nature. Here it issuggested instead that contractarians should be concerned to discoverwhether or not a rational bargain between all agents could possibly result inan actual situation. This difference is significant, because the situation whichwould result from the removal of a state is different than the situation inwhich the agent would find himself in the absence of that state. Abstractagents who calculate the utility of alternative states of affairs relative to thetraditional state of nature do not take note of the loss imposed upon theirreal-world counterparts by either the dissolution of the status quo or theremoval of whichever portions of the existing institutions it would take tomove from the existing state to the state of affairs justified on orthodoxcontractarian grounds. The removal of a state would lead to a kind of panicand lack of coordination, which would result in an increase in inefficiencyand an increase in costs to the situated agents. The inefficiency would notoccur if a state never existed. Yet these are costs which situated agents wouldin fact wish to consider, and as a result they must be accounted for in acontractarian justification.

Once we take seriously the costs that removal of an existing state wouldimpose upon actual agents, the two obligations just mentioned follow directlyin many actual cases. For very many actual agents, the complete andinstantaneous removal of their state would result in costs to each individual

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which would outweigh the benefits gained by the removal of that state. Insituations in which this is not the case, neither of the preceding obligationsarise. Jews living in Nazi Germany would not be obliged to obey the laws ofthe state, since the removal of the government would leave them better off. Inmost circumstances, however, the removal of all of the laws of the state wouldbe costly, until alternative arrangements had a chance to develop betweenpersons. Even if agents came to the conclusion that it was ultimately moreefficient to embrace anarchy, it might not follow that they should embracecomplete anarchy now.

The result of dismantling all of the laws of the state, given that people havebeen relying on the threat of enforcement to force people to adhere to thenorms of social interaction, could be catastrophic. Violations of specificcontracts may be expected to dramatically rise upon the immediatedissolution of the role of the state in the enforcement of contracts, andexchange would become at least inefficient if all of the different coordinationfunctions of the state cease to be available. If the costs outweigh the benefitsfor one person, then the dismantling of the state would not be Pareto-superior.In order to reach a Pareto-optimal state of affairs by way of Pareto-superiorsteps, the costs of dismantling the government would have to be spread outover generations. If individuals come to the conclusion that the state is notjustified and that it would be better to enforce contracts by way of internaldispositions, the yellow brick road of Pareto-superior steps taken may yetbe very long, and the journey to the Pareto-optimal state of affairs need betaken with munchkin-like steps.

If the steps necessary for the Pareto-optimal state of affairs to result arevery small, and some of the institutions of the government are still worthwhilecompared to feasible alternatives, then the continued existence of theseinstitutions is collectively rational. Adherence to the dictates of theseinstitutions is found to be in the interests of each agent, and so the resultingpolitical system is justified, according to a contractarian. We have arrived atthe result that there is good reason to suppose that even a less than efficientgovernment may still be justified on a contractarian schema, given thatcontractarians must take the situatedness of persons into consideration whileforming the terms of the contract. If we also assume that rational agents havean interest in minimizing enforcement costs then there is a moral duty to obeyall the laws of the state.

The orthodox account of the difference between moral and political versionsof contract theory is that moral contractarians are concerned with internalmeans to shape the arrangement and ensure compliance, while a politicalcontractarian is concerned with the external means of doing the same. It iscommon to suppose that both should be concerned with minimizingenforcement costs, however, efficiency being in the interests of every agent.If each person’s adopting a belief that he has a moral duty to obey the laws

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of the state will result in a reduction of the costs of enforcement, it is rationalto acquire such a belief. Any belief which agents en masse posses whichlessens the likelihood that they will be disposed to break the laws of the statelessens the need for enforcement, which in turn reduces the cost ofenforcement. Insofar as this is the case, and it is in the interests of everyagent to lessen enforcement costs, agents rationally ought to take the stepsnecessary to acquire the belief that they have an obligation to obey the lawsof their state, provided that others do so as well. This satisfies the definitionof a tenet of contractarian morality.

It may be considered an open question whether or not it is in the interest ofeveryone to lessen enforcement costs. There may be some enforcement officerwhose job is on the line, for example, who might be thought not to share thisinterest. Such persons, we may suppose, may be compensated for their loss.But, it may be further objected, what of the officer of the law who has no otherinterest, or at least no other interests the satisfaction of which would result inadequate compensation for the loss of a job? Two possible replies might bemade.

We might simply stipulate that such an agent is not possible. If we stipulatethat the agents with whom we are dealing have a preference matrix which issufficiently rich and varied, then each agent is compensatable for any discreteloss. This may not be an unreasonable assumption, given people as theyactually exist.

Alternatively, we may simply have to conclude that if there are agents whosepreference structures are such that some losses could not be compensated, theyare not suitable candidates for contract, being unable to compromise byhypothesis. We then find ourselves in the same relation to these individualsas we do other creatures who are incapable of constraining their utilitymaximizing behavior for the sake of cooperation.

Let us then assume that it is in the interests of each agent to decreaseenforcement costs. One method of decreasing enforcement costs is to persuadeeach agent to accept that there is a moral obligation to obey the laws. In orderfor this belief to be effective, however, agents would have to self-efface thereason they adopted the belief. They must also erase any other beliefs whichwould lead them to re-adopt the original belief which was the reason that thenew belief was adopted.

In order to effectively believe that there is a moral obligation to obey thejustified laws of a particular state individuals must believe that there is a generalmoral obligation to obey all the laws. This results from the necessity for agentsto self-efface the belief that the moral obligation to obey the justified laws ofthe state law arose out of self-interest. If an agent continued to believe thatthe moral obligation to obey the law came about as a result of self-interest, itwould cease to be an effective constraint on action. If you were in a Prisoner’sDilemma, for example, and along with the other agent in this game, came

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to the conclusion that the most efficient way to reach the optimal pay-offwas to adopt the desire to cooperate with the other agent, it would only beeffective if you self-effaced the belief that the only reason that you adoptedthis desire was to maximize your expected utility. Maintaining that beliefwould tend to force you to the conclusion that it is really maximizingexpected utility, not cooperating, which you desire. In the case of thePrisoner’s Dilemma, you would then act in such a way as to maximize yourexpected utility, and you would defect. So then would the other agent, andyou would fail to reach the optimal outcome of mutual cooperation. It isthus essential that you not recognize the reason that you came to adopt thedesire to cooperate.

In the case of a belief in a moral obligation to obey the laws of the state,it is likewise essential to not recognize the reason that the moral obligationarose. Thus each agent must self-efface not only the belief that it was forthe sake of self-interest that they adopted this moral constraint, but also self-efface anything which would lead them to re-adopt that belief. Thus theymust adopt the belief that there is a moral obligation to obey all the laws ofthe state.

Let us suppose that an individual held the belief that she ought to obey onlya specific sub-set of laws. Any inquiry she made regarding the justification ofa moral obligation to obey some of the laws of the state, and not others, wouldlead her to conclude that the only difference between the set to be obeyed andthe other set is that the set to be obeyed is collectively rational. Indeed, as thisis the only difference between these sets, this is the only conclusion that shecould come to. Once coming to this conclusion, it is but a short step for her tofurther conclude that this moral obligation must have arisen because it ismaximizing to have it. The jig is then up, for once this belief is a part of herbelief set, the force of the moral obligation to obey the law is rendered lesseffective, if not totally ineffective. She must accept a moral duty to obey allthe laws. Given the assumption that bargaining is costless, we can supposethat agents will come to this realization.

We cannot make the obligation to obey more selective without underminingits motivational force as a constraint. A person might attempt to make acommitment to an obligation to obey only the collectively rational laws ofthe state by adopting a further desire not to evaluate that commitment, thusblocking the worry just raised. This desire for selective introspection wouldfurther require that an agent adopt a desire not to inspect the desire not toinspect the desire to obey all but only the collectively rational laws of the state.This pattern continues ad infinitum. Whatever perfect rationality entails, it doesnot entail the ability to overcome an infinite regress, and so this proposedcourse of action is not available to the perfectly rational agent.

The other possible way to adopt a disposition to obey only the collectivelyrational laws of the state would be to adopt a non-discriminative preference

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for not evaluating desires tout court. This option would be entirely too costly,as it would force an agent to thereafter be unresponsive to changes in herenvironment. The importance of maintaining responsiveness to the dispositionsof the surrounding population is something which Robert Axelrod has certainlymade clear.11

6. Civil Disobedience

An obligation to obey all the laws of the state need not lead to politicalstagnation. Individuals may still make Pareto-superior reforms to the politicaland legal institutions of their state. Indeed, whenever it is in the interests ofsome agents to have the system of laws changed, and in no person’s intereststo not have the system so changed, there also exists a contractarian obligationto bring about the required changes. Taking small steps toward reforming thelaw is a further obligation that contractarians must accept if they take thesituatedness of agents seriously in their theorizing.

Provided that there are legally acceptable means of bringing about Pareto-superior improvements in the political institutions of the state, these twoobligations that are derivable from contract theory need not conflict. They mayconflict if it turns out that the only way to bring about the required changes isto fail to obey any or all of the laws of the state. In such cases of conflict thereis no universal priority rule privileging one contractarian obligation over theother. Which duty is to triumph is determined by considering which it is rationalfor the agents to endorse in the circumstance. If the long-term benefits ofchange are likely to outweigh the short-term loss of civil disobedience, thenthe over-riding moral obligation should be the obligation to bring about thechanges in the structure of the state.

It should be emphasized that these two duties need not conflict. There isnothing about the duty to obey the law which is in direct conflict with theduty to bring about changes in the legal system. The one suggests that personshave a moral duty to obey the laws just because they are laws, while theother suggests that persons have a moral duty to attempt to bring aboutchanges in the legal system which would improve the lot of individuals insociety.

It might be objected that agents who have internalized an obligation to obeyall the laws of the state do not have the option of disobeying any of the lawsof the state. This objection rests on a confusion. Although these agents havean obligation to obey all the laws of the state, they do not have a paramountor absolute obligation to obey all the laws of the state. It would never be rationalfor agents to adopt a preference for interaction which involved unquestioningallegiance to any and all laws of the state which was of paramount import.These obligations are to be understood as prima facia.

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7. Coda

In what sense, it might be wondered, is the moral obligation to obey all thelaws of the state recognizably liberal? The obligation itself seems classicallyconservative. Any obligation to preserve the status quo which is derived, atleast in part, from consideration of the chaos which would ensue should thestatus quo be disrupted is of a conservative stripe. Nonetheless, the duty maystill be liberal in an important sense.

A liberal justification of any principle has two important features, namely,some form of voluntarism and procedural neutrality. That a duty generatedby contractarian reasoning satisfies the requirement of voluntarism is obvious,given that the justificatory burden is met only by showing that all the peoplewho are to be bound by it would rationally accept the obligation because itserves their interests to do so.

The case of procedural neutrality is a somewhat more contentious condition,there being no consensus regarding how it is to be understood. Let us supposethat this condition at least requires that the state not exercise its political powerwith an aim to disadvantaging some persons because they have a particularconception of the good. This is not to say that the principles or policiesendorsed by a liberal theory of justification must not have the effect ofdisadvantaging some particular individuals relative to others. While theobligation to obey all the laws of the state disadvantages those who haveanarchistic tendencies, it is, in the relevant sense, neutral. The purpose of thecontractarian obligation to obey the laws of the state is to increase efficiency.It could only be thought to violate procedural neutrality if some persons wereagainst efficiency. This notion, happily, is obviously incoherent.12

Notes

1. David Gauthier, Morals by Agreement (New York: Oxford University Press, 1986), p.61.

2. Ibid., pp. 233–235.3. Ibid., pp. 101–104.4. David Gauthier, “Morality, Rational Choice, and Semantic Representation: A Reply to

My Critics,” in Ellen Frankel Paul, Fred D. Miller Jr., Jeffrey Paul and John Ahrens,eds., The New Social Contract: Essays on Gauthier (New York: Basil Blackwell, 1988),pp. 184–185.

5. David Hume, A Treatise of Human Nature, L.A. Selby-Bigge, ed. (Oxford: OxfordUniversity Press, 1983), p. 416.

6. Contra Thomas Hobbes, Leviathan (London: Penguin Books, 1985), p. 198.7. Gauthier, Morals By Agreement, pp. 190–191.8. Jean Hampton, “Two Faces of Contractarian Thought,” in Peter Vallentyne, ed.,

Contractarianism and Rational Choice (New York: Cambridge University Press, 1991),p. 44.

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9. Ibid., p. 45.10. Cf. Gauthier, Morals By Agreement, p. 190 ff.; James Buchanan, The Limits of Liberty:

Between Anarchy and Leviathan (Chicago: The University of Chicago Press, 1975);Hampton, op. cit.; and Jan Narveson, “Gauthier on Distributive Justice and the NaturalBaseline,” in Vallentyne, op. cit., esp. pp. 136–144.

11. Robert Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984).12. I wish to thank Jan Narveson, Sheldon Wein, Paul Viminitz, Malcolm Murray, Susan

Dimock, and Bob Bright for their comments on and discussions of the ideas expressedin this paper. I also want to express my gratitude toward the Social Sciences andHumanities Research Council of Canada for their generous support of my research.

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A Moral Obligation to Obey the State