Democracy and Political Obligation
Herman van Erp
All modern societies in some way accept the distinction between legal and ethical obligation. The former constitutes an exterior sphere of norms and rules, including duties which citizens can be compelled to perform by the threat of punishment or other legal consequences, the latter concerns the interior sphere of a person's conscience and private intentions. Making this distinction can be seen as the explicit acknowledgement of what Agnes Heller has called 'the first structural change in morals': the evolution of a separate subjective sphere of morality within the public ethical life. (1) Legal and moral law oblige in different ways and also contain different duties. In modern society, legal duties usually take the form of commands and rules. The distinguishing characteristic of legal duties and corresponding rights is that they can be enforced by an appeal to the law. For the sake of certainty and to avoid arbitrariness, the legal system strives to formulate duties as unambiguously, completely and consistently as possible, and to determine the rules for their enforcement precisely. Thus, the question of what a legal obligation is and how the subjects under obligation must behave is virtually answered by the legal system itself. How to fulfill a moral duty, on the other hand, is considered a matter of ethical obligation and left to the conscience of private persons. Immanuel Kant thought that the domain of duties could be adequately divided into duties that can be the object of legal obligation, on the one hand, and duties that only can be the object of ethical obligation, on the other. The latter pertains to intentions; the former, to external aspects of the action. I think, however, that there are good reasons for also distinguishing a domain of political obligation that is not reducible to either legal or ethical obligation. Political obligation must be distinguished from both of the former categories because it allows, in exceptional circumstances, illegal means in order to safeguard political ends. This political violence cannot simply be legitimized by the principle that urgent need goes before the law, but must be based on a more positive principle. I think the same principle lies at the base of the legitimation of democratic or republican revolutions. In the first section of this article, the thesis is developed that if there is such a thing as political necessity, it must be some form of moral obligation. In the second, the concept of political obligation is clarified as being different from ethical and legal obligation. In the third, a connection is made between political obligation and democratic political virtue.
1. Moral duty and political necessity
Machiavelli is the most famous political theorist to argue that, in the field of political action, there is something like a political necessity that can override moral norms or obligations. From a moral point of view, it is not acceptable to legitimize immoral politics. But is this Machiavelli's intention? The possible immoral actions of the prince, such as murder of his political opponents, cruelty against his subjects, violation of treaties, are neither approved nor excused by Machiavelli. The question whether a politician has to act in a way that is not in accordance with moral norms is always set in the special context of historical examples in his works. No general legitimation or permission for immoral actions is given. There seems only to be a form of inevitability under special circumstances. In the large majority of cases of immoral behaviour mentioned by Machiavelli, however, this inevitability appears to be the result of wrong calculations. We could suppose that, even in Machiavelli's view, the inevitability of an immoral action can never be known as a real necessity. So-called political necessity is itself always a concept used within the strategy of the political power game. There is no objective necessity that, as an external constraint, forces the politician to act immorally, nor is there any rule or knowledge that would commit him to such an action. This seems logical because, if there really were an objective necessity under special circumstances to kill someone or to commit any other crime, or if a statesman with a sense of responsibility knew himself to be obliged to commit such actions, these actions could not be considered in any sense immoral. If the concept of political necessity can have a legitimation function for actions that seem to be morally reprehensible, this concept must be linked to a concept of political responsibility and obligation.
Such renowned moral philosophers as Michael Walzer and, though more hesitantly, Thomas Nagel and Bernard Williams, seem to accept that political necessity can cause the paradox that responsible politicians must get their hands dirty and commit moral crimes. (2) From a Kantian moral point of view, there can be no other necessity for free human actions than moral necessity. If this is the right conception, as I believe it is, we cannot justly speak of moral paradoxes. The evil that necessarily would have to be done cannot be morally wrong, because it would be the object of a political obligation. On this point, I must agree with Nielsen's criticism of the ideas of the previously mentioned authors, with respect to the dirty hands dilemma. (3) But I cannot agree with the background of his ethical theory, which is an example of a consequentialism that must lead to the principle that in politics the ends sanctify the means.
The difference between private and public morality is not a question of different principles, but a question of their application under different circumstances. Political circumstances generally make it impossible or irresponsible to solely appeal to one's good intentions while remaining passive and inert. In politics, there is always some urgency for action or decision and politics, therefore, needs a concept of particular ends by which its actions and decisions can be legitimized. Political necessities are causal factors in the realisation of these ends. The concept of necessity belongs to the interpretative definition of the circumstances under which positive moral principles and values have to be applied. But political necessities cannot remove the strict necessity of categorical moral prohibitions. Political leaders have an obligation to translate the concept of a political community into concrete political ends and the means for their realisation. As causal factors between means and ends, political necessities are themselves part of these translations. Precisely because politicians have to think in these categories of political ends, means and necessities, they are exposed to the risk of considering moral constraints as only one of the impediments to their possible actions. The concept of political necessity involves the inclination of transgressing moral limits as if this transgression was the clearing away of an obstacle. Therefore, Thomas Nagel is right when he states: 'One of the hardest lines to draw in public policy is the one that defines where the ends stop justifying the means. If results were the only basis for public morality then it would be possible to justify anything, including torture and massacre, in the service of sufficiently large interests.' (4) It is the political body as a whole, the democratic society, that has to draw and safeguard this line.
2. The character of political obligation
Morality puts particular limits on actions that may not be transgressed, even for the most desirable public ends. Nevertheless, in the domain of the morality of public life, it seems more important to take responsibility for the realisation of ends than in private life, the morality of which is mainly characterised by feelings and intentions. The limits placed on the actions of private individuals are more stringent than those put on the actions of representatives of the state. Private persons are prohibited from encroaching on the rights of others for the sake of their own well-being. The state, on the other hand, sometimes has a right to encroach on private life and the rights of one individual for the benefit of others or because of its own interests. Its servants may even use ruthless means that would be unacceptable in private life. Although the ultimate criteria for what is morally good and wrong are the same for both public and private life and these domains are not governed by different moral principles, the public life of political servants is characterised by other duties than those of the individual in private life. There can even be particular conflicts between a person's public and private duties. Can this difference of duties be regarded as an effect of different forms of obligation?
There is an analytical connection between duty and obligation. Obligation often has the same meaning as duty. To be obliged means to have a duty. An obligation can also be the act of obliging oneself or someone else. In that case, a duty is the conception of some behaviour as the object of an obligation. Generally, we can say that people are obliged to perform their duty. Determining the grounds on which this general obligation is founded ultimately is a difficult philosophical question. But is seems clear that there cannot be an obligation without a will imposing a duty or an obliging will. The person or entity that imposes an obligation is called the author and the obliged person is the subject of the obligation. From the point of view of their origins, we can distinguish between different forms of obligation. One can oblige oneself, so that the same person is both the subject and the author of the obligation in the form of an autonomous moral will. In the case of legal obligation, which can be enforced by an external authority, we are obliged by the will of another person: the lawgiver as the author of the obligation. To the extent that a moral duty cannot be enforced by an external authority, the moral necessity has the character of an ethical obligation. A moral duty, therefore, can be the object of either legal or ethical obligation.
Many political theories consider political obligation to be the obligation of citizens to obey the laws and commands of the state. (5) Under normal circumstances, all citizens ought to behave in conformity with their conscientious interpretation of the law. This obligation to obey can be understood as a moral duty, the explanation of which does not need a special conception of political obligation, as distinct from legal or ethical obligation. This seems true as long as the state does not ask of its citizens an extraordinary readiness to make sacrifices or to take special responsibilities. But political obligation is also associated with a duty to defend your country, to fight for justice and, particularly in war, even to risk your own life. These duties cannot always be seen as supererogatory, because under particular circumstances citizens and politicians are forced to behave in conformity with these requirements. Political necessity is a form of external coercion and, therefore, different from moral necessity, but it is also different from legal enforcement.
It seems possible and relevant to make a distinction between the citizens' ethical and legal obligation to obey the laws of a political system, on the one hand, and political obligation in a stricter and particular sense, on the other. In the domain of political action, there seems to be a need for obligations that cannot be left to the interior sphere of the conscience of private persons, nor reduced to legal enforcement. An obvious reason is the problem that, outside an existing legitimized political system, there is no legal right to enforce laws. In those situations, too, it must be possible to establish, eventually by force, a system of law and political order. Traditionally, the right to impose a political order and to subject people to a positive law is legitimized by mythical and religious representations, or by an appeal to natural right. Kant deduces political obligation totally from the concept of law. He thinks that we can make a 'construction' of the concept of right by imagining a system of continuous reciprocal constraint which upholds the freedom of all in accordance with general laws. (6) But the concept of legal enforcement provides only a formal determination of public law. It does not say anything about who has a right to enforce which laws with respect to which ends. We can imagine numerous systems of rules that could be externally enforced in a general way. Therefore, the concept of legal obligation alone can neither protect society against political disagreement, despotism and totalitarianism, nor provide a more substantial conception of public interest. There is a necessity to create political structures that both allow for normative social decisions and protect the freedom of citizens, a necessity that cannot be conceived of as a system of totally external enforcement. The solution to this problem, of how to establish a legitimized political order, may not be left to the private moral will of the political leaders. The creation or reconstruction of a just political system is an obligation that also cannot be enforced legally. Nevertheless, it seems to allow for some other kind of enforcement, which is called the will of the people, that even can take the form of rebellion and violence. But the will of the people as such, without democratic political structures, is just a mythological concept.
People have a collective obligation to join a political community in which they subject themselves to a public law without losing their freedom. For the isolated individuals as such, this cannot be more than the ethical obligation to be willing to accept an external authority imposing legal rules. Within a given public legal order, this ethical obligation has been transformed into the legal obligation to respect positive law. In a state of anarchy, in a civil war, or in a state of nature, it is unclear how this ethical obligation has to be translated into concrete actions of obedience. It is only certain that we may not prevent the institution of a public order or make the existing legal system totally powerless. Under these exceptional circumstances, the collective duty, which only implies an ethical obligation for individuals, bestows a right on some individuals to take the initiative to impose a public order on others or, without the support of valid law, to enforce some changes in a given, but unjust, political order. In a state of public injustice, specific individuals who feel responsible for the public benefit have a right to exert a form of political violence that is not yet, or not any longer, in accordance with the legally defined and monopolised official mode of exerting political power. This is not a case of ethical obligation alone because the duty which is the object of political obligation can in some way be enforced by the people, either by legal, or by particularly political means such as refusal, resistance, and even revolt. In a democratic constitution, the right or obligation of citizens to revolt against injustices committed by the state can, pace Kant, legally be acknowledged, as the constitutions of some states of the German Federal Republic show. (7)
Thus, political obligation seems to be a kind of obligation concerning the duties of political leaders and citizens together who, as a collectivity, are responsible for the political system as a whole. The domain of political obligation is situated between ethics and law. The moral worth of an action is primarily determined by the intentions of its agent, and the agent is only morally responsible for the effects of his action insofar as he can be considered a free cause of these effects and they could reasonably be foreseen. But a political agent will not be praised as a good politician only because his or her political actions are morally just or in perfect conformity with the law. Agents in the public service are supposed to exert themselves in favour of the public interest. Therefore, political responsibility requires not only the performance of correct actions, but also a will to uphold and improve the political system and a desire to perform successfully where the right action is not prescribed by law. This requirement of special political attitudes connects the concept of political responsibility with that of moral obligation and virtue. In cases of political responsibility, however, it is not good intentions but the results of the action which appear to count as the right criterion for its evaluation. From a purely political point of view, persons are judged mainly with respect to the external effects of their actions. Consequentialism seems an essential characteristic of political ethics, although it cannot provide ultimate criteria for moral judgement. (8)
3. Political responsibility and democratic leadership
Generally, I would say that citizens in a free democratic, or republican, political system have - even if there is no legal obligation - a political obligation to vote or to express in other ways their contentment or discontent with the policy of their government. Being a citizen in a democratic country is a privilege that, like nobility, obliges a person to develop political virtue and the willingness to assume, to some degree, political responsibility. A political leader with a great sense of responsibility for national interests and the safety of the state will feel obliged to do things that go far beyond the moral duties and rights of private persons in daily life. Taking great responsibilities is a praiseworthy thing in people who have the capacities to take them. Political merit presupposes some ingenuity in devising political goals and means and also the ability and courage to implement them. But under complex and uncertain circumstances, the real outcomes of political decisions and actions are often not predictable. The politician has to take risks. He will be praised when fortune favours him and blamed when it is against him. Good political actions seem to be much more determined by external contingencies than moral choice and virtue are. Therefore, it is rational that politicians can legally dispose of special means and powers to advance their purposes and to prevent or correct undesirable effects. This particular responsibility means a moral burden for the political agent, which is to a degree compensated by personal advantages such as a high income, privileges, and personal and social status. Most politicians enjoy the special power and status connected with their responsibility. Many politicians seem to strive for political positions because of these personal advantages. Political power, status, and privileges can easily be employed for the personal benefits of friends and family. To avoid corruption and unfair benefiting, the obligations of public offices must be clearly defined.
Public servants have an official duty to do what the legal political system wants. They have this duty insofar as they themselves are a functional part of the system. This functional relationship is not characterised by what I would call a lien of political obligation, because its duties are defined by formal rules and legal obligation. The duty to perform their tasks in a formally prescribed impersonal and detached manner relieves civil servants of too many burdensome moral worries. But an excessive devotion to formal duty can also make officials blind to other moral requirements. Of course, corruption is objectionable. But our focus on corruption must not lead us to forget that a state can commit injustice through its most loyal servants. The public servant gets in touch with political obligation when, as a responsible citizen, he has to decide how far he has to adapt the execution of his formal tasks to the particular ends of the ruling party. Sometimes it will be relevant for him to make a political choice. The urgency to make political choices will be more frequent and less inevitable as the public servant occupies more leading and guiding positions or functions that are sensitive to political manipulation. Public servants in such positions are politically answerable for the choices they make or forsake to make. As stated previously, political obligation is connected with the notion of 'noblesse oblige'. Therefore, it appears reasonable that officials in leading positions can be held politically responsible for the effects of the political choices that they have made or have refused to make. How a person has to choose is determined by moral judgement, but the fact that he has to choose is a question of political obligation and courage.
Leaders and citizens of rich and mighty nations have political responsibilities that go far beyond the security and well-being of their own nation-states. They have responsibilities to translate ethical obligations for global justice into adequate legal rules and economic measures. It is not unjust that people of other countries try to find political means by which they can induce the rich nations to take their responsibilities seriously. Today, many complaints can be heard about the deficiency of political leadership on the global level. Political leaders are said not to be active enough in stopping the massacres in African countries, or in finding solutions for the wars in eastern Europe and Asia. They are said to neglect their political responsibilities for lack of political courage. It is easy to utter such moral complaints, but it is not so easy to determine, within the contemporary situation of post-Cold War politics, what calling up political leaders to show courage requires of them. Demanding political courage in the abstract can be dangerous when connected with the widespread prejudice that mass democracy slackens the sense of moral responsibility and is an impediment to political courage.
Democratic decision procedures are no obstacle to leadership. On the contrary, democracy has to be learned and requires continuous attentiveness. Leadership plays an important role in democracy, but it cannot be formalised into a command system with a descending order of subordination like the army or bureaucratic organisations. A democratic leader not only has to justify his political ends and actions to his fellow citizens, but he must also take political responsibility for promoting, within his own society, a moral sense of the value of democratic answerability. Democratic political virtue is allergic to utopian conceptions of political heroism and leadership. Democracy obliges leaders as well as citizens to develop more communicative political virtues and to be inventive in the search for other political means than enforcement by war and violence. In this concept of political virtue, a conception of political leadership that inclines towards a disapproval of democracy because it is too soft and thus unfit for the harshness of political necessities does is no longer suitable.
(1) Agnes Heller, General Ethics, Oxford 1988, p. 48.
(2) Michael Walzer, Political action: the problem of dirty hands, in : Philosophy and Public Affairs, 1973, pp. 160-180; Thomas Nagel, Mortal questions, Cambridge 1979, pp. 53-90; Bernard Williams, Moral Luck. Philosophical Papers 1973-1980, Cambridge 1981, pp. 54-70.
(3) Kai Nielsen, There is no dilemma of dirty hands, in: South African Journal of Philosophy, 15-1 (1996), pp. 1-7.
(4) Thomas Nagel, Mortal questions, p. 89.
(5) See e.g. R.M. Hare, Political Obligation, in: Ted Honderich (ed.), Social Ends and Political Means, London 1976, pp. 1-12.
(6) I. Kant, Die Metaphysik der Sitten, Akademie-Ausgabe, Berlin 1902, Bd VI, p. 232.
(7) Cf. Peter Schneider, Recht und Macht, Gedanken zum modernen Verfassungsstaat, Mainz 1970, p. 224.
(8) Cf. Bernard Williams, Consequentialism and Integrity, in: Samuel Scheffler (ed.), Consequentialism and its Critics, Oxford 1988, pp. 20-50.