Forthcoming in Loyola Law Review, Vol 40, No 2 (2006) LEGAL AND OTHER GOVERNANCE IN SECOND-PERSON PERSPECTIVE1 Aaron James University of California, Irvine [email protected] In The Second-Person Perspective, Stephen Darwall seeks to extract a distinctive conception of morality from general features of “the second-person standpoint”—the “perspective you and I take up when we make and acknowledge claims on one another’s conduct and will.”2 The resulting conception is what Darwall calls “morality as equal accountability” (p. 75): for me to have a specifically moral obligation is also for you have a kind of authority over me, authority to hold me into account for what I am obligated to do. Darwall’s project is one of moral theory, but legal authority and obligation is a paradigm case of the “second-person standpoint” in Darwall’s sense. In making and enforcing the law, it is often said, the sovereign authority does not simply purport to exercise power, even justified coercive power. It lays claim to the willing obedience of its subjects. That is, it lays claim not just to compliant behavior, but to compliance based in acceptance; the subject is to accept, from his or her own point of view, the sovereign’s legitimacy and his or her own duty to obey.3 Though law is not Darwall’s focus, this is just the kind of mutually regarding perspective which he takes to reveal morality’s true nature, morality as equal accountability. So we can ask: how, if at all, do Darwall’s 1 arguments apply to the relation between legal authority and its subjects, and is morality as equal accountability the result? I want to suggest that Darwall’s arguments do naturally apply in the case of democratic legal authority. This shows that moral contractualism (in the Scanlonian form that Darwall favors) is not simply an alternative to consequentialism at the level of general moral theory, with no direct implications for legal authority.4 In conjunction with Darwall’s arguments, it also helps to explain the obligating nature of law. However, Darwall’s larger conception of morality as equal accountability turns out not to have any essential role in the explanation why his narrower arguments apply. A better explanation, within contractualism, appeals to the very nature of democratic governance, along with reasons for its legitimacy that make no assumption of morality as equal accountability. Since law and legitimacy is not Darwall’s main concern, there is some risk of unfairness in making this argument. I will also argue, however, that Darwall’s central arguments are similarly incomplete even with regard to the interpersonal relations he focuses on. He does not effectively rule out what should be seen as the main contractualist alternative to morality as equal accountability, what I refer to as “morality as self-governance”: the view that governance of self is basic, while governance of others, in law and in interpersonal dealings, is less the hallmark of moral obligation than one of its specifically political dimensions. SECOND-PERSONAL REASONS Darwall’s argument begins from cases in which some agent A makes a “claim” or “demand” on the conduct of B (as expressed, e.g., when one says “Get off my toes,” 2 “What do you think you’re doing?,” or “Thou shall not kill”). The claim or demand assumes that B has certain reasons for action.5 Darwall argues that B in fact has the purported reason, in the cases in question, only if several basic, quasi-Austinian “normative felicity conditions” hold: (1) A has legitimate, de jure authority or standing to make such claims against B; (2) B is accountable to A for compliance, in the sense that, in case of non- compliance, A has authority or standing to complain, object, blame, or issue some other “accountability-seeking response” (“Strawson’s Point”)6; (3) B is “normatively competent,” in the sense that B is capable of appreciating and being moved by the reasons A purports to give, and capable of holding him or herself responsible for acting on these reasons (“Pufendorf’s Point”)7; (4) B has authority, the kind of authority which is infringed if B is not addressed by A legitimately, i.e., in a way that allows B to comply freely, or by exercise of B’s normative competence (“Fichte’s Point”)8. According to Darwall, the practical reasons which support these assumptions comprise a distinctive normative kind, the class of “second-personal reasons.” Not all practical reasons are supposed to be of this sort. There are also reasons to make the world go better rather than worse, from a purely impersonal point of view. And there are 3 reasons and requirements which, although “agent-relative” or “exclusionary,” afford others no necessary authority or standing to make compliance demands.9 Nevertheless, Darwall argues, in a wide range of cases—including but not limited to reasons “addressed or presupposed in orders, requests, demands, promises, contracts, signs of consent, commands” (p. 11)—we do find a different and distinctive class of reason which presuppose (1)-(4). In all such cases, Darwall explains, such “second-personal reasons” “simply would not exist but for their role in second-person address.” Their very “validity depends on presupposed authority and accountability relations between persons and, therefore, on the possibility of the reason’s being addressed person-to-person” (p. 11). This is not yet to say anything about morality. According to Darwall, moral obligations not only provide reasons for action, the reasons they provide are second- personal reasons. They too, then, “simply would not exist”—at least with the full authority moral obligations purport to have—but for “presupposed authority and accountability relations between persons.” One might take this to entail that moral obligations are artificial, because the “authority and accountability relations” they presuppose depend on contingent social organization, in the way legal authority and accountability are usually thought to. Dawall concludes, instead, that certain authority and accountability relations are part of moral nature, arising simply by virtue of the dignity of persons (p. 15-6, 171, 193, Ch. IV). What are these morally basic relations? Darwall’s answer is sometimes misleadingly vague, as for example when he writes: Second-personal reasons are invariably tied to a distinctively second personal kind of practical authority: the authority to make a demand or claim. Making a 4 claim or a demand as valid always presupposes [1] the authority to make it and [2] that the duly authorized claim creates a distinctive reason for compliance (a second-personal reason). (p. 13-4) Now [1] is just (1) from above, a plausible claim about any act of making a claim or demand. But [2] misleadingly suggests that the act of validly claiming always “creates” a distinctive reason for compliance with basic moral requirements, instead of simply creating a distinctive reason to give an account of independently motivated conduct. To take Darwall’s own example (p. 9-11), if you tread on my toes I can do more than invite you to see that this is a bad thing to have happen; I can also demand that you step off. Even if I in some sense “address” a requirement to you—the requirement that people aren’t to tread on other people’s toes—it is not a requirement on your conduct because I address it or say so, at least not in the way sovereign legislation can itself be a reason for doing what the law requires.10 The datable act of my making the complaint might “create” a distinctive reason for you to give an answer or apologize, a reason you would not have had had I remained silent. It might also get you to recognize the basic requirement for yourself. But this is not to say, what a strict reading of [2] suggests, that it also “creates” a distinctive, specifically moral (or moral obligation-related) reason for compliance with the basic requirement in the first place. You had such a reason not to tread on my toes even before I complained, and would have had this reason had I never piped up. What “creates” the basic requirement in the first place, in Darwall’s view, is nothing less than the “demands” of the “moral community,” which he understands in hypothetical, contractualist terms (as a demand on conduct no one could reasonably reject) (Ch. XI). 5 So we should distinguish authority of at least two kinds. When a legislature creates legal obligations, or when a married couple or business partners make binding agreements for how they will get along, this is to exercise legislative authority, authority or standing to create obligations which might not otherwise exist except by some datable act of will. This is distinct from what may be called accountability authority, authority to hold someone into account. When a friend or lover asks for justification for an insensitive remark, they assume authority or standing to complain, object, and make demands for greater care. But they do not necessarily that they have legislative authority over the basic standards of care and sensitivity among friends or lovers which they hold the person to. Darwall’s central thesis is that moral second-personal reasons always presuppose accountability authority, not legislative authority.11 Philosophers do sometimes speak of basic moral requirements being “legislated.” One can, for instance, view all moral truth as a construction of authoritative moral reasoning (e.g., about what could be reasonably rejected). In that sense, even basic moral requirements might be “legislated” by the hypothetical moral community’s demands. The basic requirement not to tread on the toes of others might then be said to flow ultimately from the fact that I (or others like me) can reasonably reject any principle which allows this; but for that fact, we may say, treading on my toes would have been fine. Even so, this hypothetical fact, about what I would, if reasonable, reject, is just not an actual, datable act of acceptance or rejection which can be said to legislate or “create” reasons for action in the way legal authority and binding agreements do. If this counts as “legislation,” it is not legislation in the ordinary legal sense, but a philosophically suggestive metaphor. 6 So when Darwall says that, in general, a moral second-personal reason (e.g. to avoid toe-treading) “simply would not exist” but for “authority and accountability relations,” this is not to say what is often true in law, namely, that an action which is in fact obligatory would not have been such in the absence of an authority which issues and enforces it. The idea is instead this. If a principle is to provide a genuine moral obligation, it must be suitable for a certain role in practice: it must provide a basis for people to govern each other, in the sense of enabling them to hold each other into account when they fail on their own to follow through. Moral obligations and the reasons they provide simply would not exist but for this practical governing role. This is a strong claim. It is to deny the moral credentials of even a close contractualist cousin of Darwall’s own view. According to what might be called morality as self-governance, morality is essentially “second-personal” in the sense that its defining concern is, in T. M. Scanlon’s sense, “what we owe to each other” or “justifiability to persons.”12 Yet the basic moral problem, on this view, is one of self-governance—of how each is to govern his or her own conduct. How each is to govern or be governed by others is, by contrast, an artificial, remedial, or any case secondary issue. We need principles concerning the governance of others only because they are needed for special kinds of political or interpersonal relationships, or because of real limitations on our ability to properly govern ourselves, or because of some combination of these. On this view, there is no further general or primitive authority or standing to issue demands, beyond one’s general and primitive standing as owed justifiable treatment. Morality as equal accountability entails that morality as self-governance does not capture moral obligation. But why doesn’t it? I don’t think Darwall has adequately 7 answered this question. To explain why, I’ll first consider how his main arguments about the second-person point of view have natural, plausible, and interesting application to legal authority in a democratic society. Why the arguments apply, I want to suggest, is explained better or just as well by the nature of democratic legitimacy than by morality as equal accountability. At least as far as the moral basis of legal authority and obligation goes, it is unclear why the more general conception of equal accountability must come into the picture. I then consider Darwall’s arguments in the context of his primary concern, interpersonal relations. I reach a similar conclusion, for similar reasons. As in the case of law, Darwall has yet to rule out what should be seen as the main contractualist alternative to morality as equal accountability, morality as self-governance. He has not adequately explained why we need to posit a primitive kind of authority or standing to make demands, beyond a person’s general standing as owed justifiable treatment. DEMOCRATIC LEGITIMACY Consider two ways legal authority might be said to have or approach legitimacy. What is crucial in each case is how each subject regards the legitimacy of the sovereign’s rule.13 Under conditions of Proto-legitimacy, the de facto authority aims in good faith to set terms in such a way that every subject can accept the legitimacy of its rule and their own obligation to obey. Most everyone agrees that it is wise to have some such authority; few would deny the evils of civil disorder, for example. Beyond modest confidence that most of those who rule make a good faith effort, however, there is not 8 necessarily great confidence in how authority is exercised (though there may be such confidence as well). Under conditions of Sovereign Legitimacy, the terms legislated and enforced in good faith are accepted by each subject as legitimate, and therefore regarded as providing normally sufficient reason to comply. People generally find the existence of a sovereign to be wise, as under Proto-legitimacy, but also generally have confidence in the few who rule, largely because of what they find in practice: things work well enough; people often get along; arrangements are not too unjust, or not believed to be too unjust, and so on. Beyond confidence that the rulers are wise, however, there is not necessarily access to or appreciation of the reasons why the rulers choose as they do (though there may be such access or appreciation as well). Now compare conditions of Democratic Legitimacy. Law, as set and enforced by the de facto authority, is addressed to each citizen, seen as its proper subject, and from every citizen, seen as its joint author. In practice, this regulative ideal is approximated, and understood to be approximated, under the following sorts of conditions: (i) the society (at least) achieves both Proto-legitimacy and Sovereign Legitimacy; (ii) there are sufficiently fair representative political institutions for distributing political and legal power; and (iii) the exercise of power, in those position, is by and large governed by public reasons, reasons everyone can reasonably authorize, despite their differing private views.14 When these conditions are by and large fulfilled, each citizen enjoys two forms of authority or standing. As coerced subjects of the law, each has standing to demand from 9 others that law be a possible object of willing compliance, that is, that authoritative decisions be reasonably authorizable and so made only on the basis of public reasons. As putative co-authors of law, each has standing to demand compliance from others and, in case of non-compliance, enforcement by public means of coercive sanction.15 In short, coercion gives standing to make an authorship demand, while willing compliance, in the face of coercion, gives standing to make a compliance demand. Now one can have authority or standing to make a demand without ever making or expressing the demand to others. Others won’t then have the reasons they would have if the demand were made or expressed. We can close this gap as follows. Under conditions of Democratic Legitimacy, we may assume more or less general compliance with law in practice, if only that which is necessary for the continuing existence of law- governed society. Such compliance, we may say, is in itself of expressive significance. One’s willing compliance, over time, expresses to others one’s authorship and compliance demands. As a coerced subject of law, one’s compliance expresses one’s authorship demand, giving to all normally sufficient reason to jointly adopt reasonably authorizable terms. And as a putative co-author of law, one’s willing compliance expresses one’s compliance demand, giving to each other normally sufficient reason also to comply. In willingly complying, each in effect says to others, “I’m doing it, you do so as well.”16 Now consider the relation between our three models and Darwall’s conditions (1)- (4). Democratic Legitimacy fulfills each condition. That is, suppose we are not anarchists; the claims of law on our conduct do indeed give normally sufficient reasons to comply, if nowhere else, under conditions of Democratic Legitimacy.17 What follows 10