The Common Sense of Philosophical Anarchism
Philosophical anarchism is the idea that there is no duty to obey the law just because it is the law. Philosophical anarchists claim that there is no moral obligation to obey the commands of the state, and conversely, the state does not have the authority to command. In other words, the state is morally illegitimate.
Most people deny that philosophical anarchism is true. The most common reason is that citizens have freely consented to be governed by their states. Either expressly or tacitly, we have consented to the laws established by our government. Hence government is based on the “consent of the governed.”
The biggest problem with express consent is that it is plainly historically inaccurate. Apart from naturalized citizens, hardly anyone has ever explicitly consented to be governed. Given the absence of express consent, most arguments for the consent of the governed rely instead on tacit consent, through voting or residence.
Consider voting. The idea is that by voting for a political representative, we consent to the laws they establish. By participating in the electoral game, we agree to abide by the outcome.
The problem with this argument is that voting is a coerced choice. First of all, only choices that are free of coercion can generate obligations; if a choice is coerced in any way, it loses its moral ability to create an obligation. While there are cases where tacit consent can generate obligations, voting is not one of them, because the voter is never given the most important choice of whether or not there will be a government. Unless a voter is given the option to secede and avoid being governed at all, the act of voting cannot be taken as consenting to government.
Consider: a murderer breaks into your house and gives you the choice of being stabbed or shot. Your choosing to be shot does not mean you consent to it. The reason is that the murderer forces you to make a coerced choice: either be stabbed or shot. You do not have the option of not being coerced at all.
This example is importantly analogous to voting, because both the victim and the voter are subject to coercion, and neither have the choice of whether or not they will be coerced. Just as the victim will be killed no matter how she responds (and even if she does not answer the question), the voter will be subjected to coercive laws no matter how she votes (and even if she doesn’t vote). So voting, as a coerced choice, is not able to establish the consent of the governed.
The second argument given for tacit consent is residence: by choosing to live in a country, we agree to obey the laws of its government. Just as when you come into my house, you have to obey my rules, so too when you live in a certain country, you have to obey the rules of the government—love it or leave it.
Notice that this argument implies that just as I am the owner of my house, the government is the owner of the country. That is, the government is in a position of moral sovereignty over its territory and can demand that its citizens either obey or leave.
The problem with this argument is that it is circular. The consent theory of political obligation claims that government authority is based on the consent of the governed. Residing in a territory can indicate tacit consent only if the owner already has authority to demand you obey or leave (as when you come into my house).
But if government authority is based on consent, then that authority cannot exist prior to the consent of its citizens. This is, however, precisely what is required by the residence argument: government must have authority over its citizens before they can give consent, which is what needs to proved. Hence the residence argument fails. Unless government already has authority over us independently of our consent, then residing in a country cannot imply consent to that government.
At this point most people will appeal to an argument from fair play: since we receive benefits from government, we are thereby obligated to obey it. But this also fails to justify a duty to obey, since on this argument an investment company would be justified in seizing my life savings without my permission on the grounds that I would benefit from its money management. The problem here is that the benefits of a legal system are such that we cannot refuse them; and unless you can refuse a benefit, it is not clear how you are obligated to pay for it.
So the most popular arguments for a duty to obey the state fail. If the state is morally illegitimate, then we should embrace philosophical anarchism. Furthermore, we have good reason to investigate political anarchism, to see if it is possible or desirable to do away with the state entirely.