Motivation

I’m interested in whether Kahan’s account of reciprocity can be scaled up to account for all compliance or non-compliance with authoritative laws generally, rather than just criminal prohibitions on street crime and tax law. Particularly, I’m interested in whether it might provide a public choice theoretic grounding of Joseph Raz’s account of authority. Raz’s Normal Justification Thesis states that “the normal way to establish that a person has authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly” (Raz, quoted in the Stanford Encyclopedia of Philosophy, “Authority”). As long as a citizen usually does a better job of acting according to the balance of (first-order) reasons (that is, accomplishing the best outcomes, all things considered) by following authoritative commands (e.g., laws) than by evaluating all of the reasons for herself, then she should follow that kind of command.

Let h0 be: Commands from institutions (legitimate or not) will add to or subtract from the balance of reasons, but will not be authoritative. (For instance, a penalty is a reason not to do something prohibited, to the extent that you anticipate being made to pay it, because you don’t want to pay it. Likewise, a rule in a public goods dilemma that everyone should contribute y=m of their endowment where m is some constant to which all players, or most players, agree might be a reason not to contribute y less than m, if the rule creates an [extra-legal] norm that everyone should contribute m.)

Let h1 be: In communities characterized by high social organization and high social influence, commands from legitimate institutions will be authoritative. (The first three terms are Kahan’s terminology, the last is Raz’s.) Otherwise, commands from institutions will simply add to or subtract from the balance of reasons.

[Note that there are a number of possible variations on this hypothesis: Kahan’s factors could be necessary but not sufficient conditions for authority, or a smaller number of them could be sufficient (e.g. legitimacy itself might be enough for authority), or factors could also be added “trust,” etc. Also, this hypothesis looks at the Kahanian factors as on/off, rather than as continuums, with might better match real world reactions to lawful commands.]

I think that h1 is plausible, and I’ll just very briefly sketch the reasons why I think this is:

High social organization means that community members develop norms and agreements that enable them to share baseline reasons (those that authority might override) that overlap to a large degree, meaning that most people who will be subject to authoritative commands have similar interests in the first place.

Legitimacy (in the Kahanian sense) means that the institutions issuing commands will, to a certain, unspecified extent mirror the consensus norms created (in part) through high social organization, meaning that the commands of these institutions should do a good job capturing the reasons that apply to subjects.

High social influence means that there will be strong non-legal reasons to follow community norms anyway, which reduces the likelihood of (purportedly) authoritative commands asking a subject to do something radically different from the action that a consideration of the balance of reasons in a particular case is likely to call for. (Given restrictions on authority that Raz is willing to accept [see the SEP, §3.1], this may not affect the authoritative status of particular commands as mean that more commands from an institution are authoritative.]

If these three considerations are necessary conditions for authoritative commands/laws, then it seems to follow that: (1) authoritative laws generally (maybe always) have low enforcement costs because of community buy-in, (2) laws are authoritative only when they do a good job mirroring what people really think (including their propensity for reciprocity), and (3) the penalties associated with authoritative laws will rarely need to be applied, and probably don’t need to be particularly big. This may also mean that authoritative commands only exist in highly developed legal systems.

If any of this is too technical to follow or opaque, I’m happy to elaborate further, though I could be wrong about all of this, in which case further elaboration may not make it any clearer.

Jonathan