Are governments like rapists?

Let’s stick with Nozick a little longer, but rather than focusing on his arguments for solving the great moral crime of modern times that is the welfare state, let’s look at his argument against what is called the ‘Fair Play’ theory of political obligation.

The problem of political obligation is this: how are we to explain how this institution called the state, which asks us to do things and locks us up if we refuse, is different from the mafia? It certainly has guns and power in a similar way, but we seem to want to say that the British government also has authority, unlike the bank-robbing loony holding people hostage. We want to say it punches people as boxers do within the context of a legitimate game of sport. The police are not like the drunkards that lamp us down the pub now and again.

But why? Where does this special authority come from?

The reason boxing is called boxing rather than GBH seems to be that the sport is consensual. You enter the ring voluntarily knowing the consequences of doing so. And the reason that not all sex is rape is that, even if you don’t sign a formal contract with your spouse declaring the right to touch one another when entering the bedroom, getting horny and heading upstairs seems tantamount to tacitly saying you may strip me naked.

Is the government like this? Well, not in any obvious way. None of us have ever signed a slip granting permission to be coerced. Indeed, our relation with the state seems to be the antithesis of this: we were born into it and had no choice but to accept its power whether we like it or not. If I were to explicitly renounce its authority and declare myself free from law, I would still be imprisoned when I proceeded to murder you. And, so it seems, rightly so. But again, we still need a reason why.

Theorists have thus searched elsewhere for a way of justifying the state’s power. If theories revolving around consent are a no-go, how else can we account for our political obligations? Cue the arrival of the doctrine of Fair Play. As formulated by HLA Hart, it states that:

[W]hen a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to a similar submission from those who have benefited by their submission.

So according to this theory, whether you have consented to the state is beside the point. If it has provided you with certain benefits, and those benefits have depended on certain acts from certain others, those other people have a right to your acting similarly so they also get the benefits. And your political obligation is the flip-side of their said right.

To make this less abstract, an example would be that my ability to walk around town freely without fear of a violent death depends upon the choice of others not to kill me, and the institution that is the police force providing for my security. Since this delightful benefit thus depends upon others acting in certain ways – not killing me, and funding the police – Fair Play says I am obliged to do my bit too. And it seems that the majority of the state’s key activities can be justified this way.

Now for Nozick, who asks us in response to consider a public radio system, which is so loud that it booms through my windows all day long. This isn’t a nuisance for me. In fact, I rather enjoy the sounds on offer. But are we inclined to say that just because I benefit from the music, I am obliged to do my fair share and DJ for one day a year? Surely not.

And similarly, what if a travelling salesman catches me with my windows open one day and chucks a book through onto my rug, which I quite happen to like. Can he then demand payment, having provided a good?

Nozick thus argues that consent is crucial to obligation. After all, what kind of hospital would be run on the basis that those most in need are to be cared for, and we’ll round them up at night whilst they’re asleep. Obviously what matters is whether they agree to the organisation and benefits. So we’re back with the boxing scenario, where to be legitimate government must be voluntary. But as we’ve seen, it doesn’t seem voluntary at all.

And yet, Fair Play isn’t dead just yet. For as Klosko argues, the reason Nozick’s examples seem to appear so absurd is that they play on the fact that the benefits thrusted upon people are trivial, and that is why we want to say they must consent. What if the goods on offer aren’t music and books, but things that protect one’s most fundamental interests: one’s life and liberty? Then, it seems that we reach a new, elevated category of goods which it is fair to say people are obligated to help provide for all. So perhaps the better medical analogy is not a hospital rounding up people with colds, but paramedics working immediately upon one’s passed out body. In such scenarios, we do not consent. But nobody would question whether the paramedics actions are legitimate. Similarly, if a government has the institutions in place to keep us alive, whether we agreed to the system or not, it only seems fair that we play the game and help to sustain the system.