Unjust Laws Can Still Be Legitimate: Justice Requires Us to Share the Costs of Injustice
Sincere, good-faith people necessarily disagree about what justice requires, so every political community will make mistakes; those mistakes are a collective responsibility and should not be borne by the frontline officials who enforce the law alone.
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The argument · tap a timestamp to hear it
Justice first, law unjust, yet still legitimate: a surface trilemma
Quong sets the book's starting point as a trilemma. First, Rawls says justice is the first virtue of social institutions, and in assessing institutions justice takes priority over efficiency or aggregate happiness. Second, in contemporary liberal democratic societies a great many ordinary laws are unjust. Third, these unjust laws can still be legitimate: officials who enforce them do nothing wrong, and citizens have no right to obstruct them. Each claim is highly attractive on its own, but together they seem incoherent — if justice takes priority, by what right can officials still enforce an unjust law? Quong says he has not seen anyone state this explicitly as a trilemma in the literature, and he thinks the trilemma is only apparent, not real.
— Jonathan QuongOnly ordinary laws, because violating core human rights poses no puzzle
Quong deliberately restricts the discussion to ordinary laws, meaning everyday legislation that does not violate widely accepted core human rights and does not violate the relevant political community's constitution or legal procedures. The reason is that the puzzle is sharpest here: if a law permits slavery or torture, most people will hold both that it is unjust and that it is illegitimate, and there is nothing to explain. But ordinary laws such as tax legislation, inheritance and bequest rules can perfectly well be judged by the standard of justice — someone holding a Bernie Sanders position who criticises the injustice of American income and wealth distribution is criticising precisely this kind of ordinary legislation — while we still have to ask: is it legitimate? That question is not automatically answered by deciding whether it is just or unjust.
— Jonathan QuongThe ‘let justice be done’ camp denies officials any extra enforcement right
The position discussed in chapter two denies the third claim of the trilemma: officials have no more right than ordinary citizens to enforce unjust laws. It is attractive because it is simple and rooted in an intuition many people find unshakeable — justice has a special priority in our practical reasoning, and once someone says this would be unjust, would violate rights, the discussion should stop there. Government officials do not acquire extra permission or extra moral protection merely by occupying an institutional role. Quong admits that he too feels the pull of this position in many examples, but he thinks its most serious defect is that it offers no useful guidance on how we should live together with people who sincerely and in good faith disagree with us about justice.
— Jonathan QuongKantians dissolve the second claim with the indeterminacy of justice
Chapter three deals with contemporary Kantian theories (such as the work of Arthur Ripstein and others), which deny the second claim: ordinary laws are not unjust. At its core is the idea that justice itself is highly indeterminate — there exists an innate right to external freedom, but this right is too indeterminate and must be made determinate through the legal machinery of a legitimate state: administration, legislature, courts. Only then does it tell each of us what rights we specifically have and what obligations we bear. So a law produced through proper legal procedure cannot be called unjust, even if we strongly oppose it and wish it were otherwise; that is simply how indeterminacy is resolved in this particular community. The advantage is that it can explain why the tort law regimes of New Zealand and the United States differ enormously yet can both be equally just. Quong is not persuaded: he thinks justice is not that indeterminate, and that when people use the language of justice to accuse each other of getting rights wrong, this is not a conceptual error but a substantive disagreement.
— Jonathan QuongInstrumentalism cannot explain why a mistaken directive still binds
Chapter four discusses the instrumental view of authority represented by Joseph Raz, whose core is the service conception and the normal justification thesis: a person or institution normally acquires authority when subjects treat the authority's directives as binding and thereby conform better to the reasons they already have than they would by weighing the reasons themselves. Quong uses an accident-scene analogy to show its appeal — a doctor shouts at you, ‘hold that person's head still’, and you should obey, because you have an independent reason to save the person and you would probably botch it if you did it yourself. A government can acquire this standing through superior knowledge, or through its capacity to coordinate large-scale action. But Quong thinks it fails to explain mistaken directives: that an authority relationship is generally instrumentally valuable does not mean that obeying it this time will also yield instrumental benefits — similar to the rule-worship objection to rule consequentialism.
— Jonathan QuongThe intrinsic-value-of-democracy view gets stuck on the weighing problem
Chapter five discusses the democratic view: the democratic decision procedure has intrinsic value, expressing relations of equality or proper respect, so failing to enforce a democratically produced law is failing to respect citizens' equal standing. Its advantage over instrumentalism is that it does not need the bridge from ‘generally useful’ to ‘must also be obeyed this time’. But Quong says it has a decisive weakness, namely the weighing problem: it must say just how much weight this intrinsic value has, and whether it is enough to make a substantively unjust law legitimate. When the injustice involves life and death, or long-term imprisonment, he finds it hard to believe that the value of equal relations or respect could reliably explain that legitimacy. He notes that Adam Swift and Zofia Stemplowska share similar worries, but they draw the opposite conclusion — they think this shows that legitimate laws produced by democratic states are fewer than we assume, and that each case must be weighed individually.
— Jonathan QuongJustice itself requires us to accept the legitimacy of unjust laws
The final chapter is Quong's own proposal. The premise is that even under fairly idealised assumptions, it is impossible to live cooperatively with numerous others without bearing the burden of unjust laws, because sincere good-faith disagreement is unavoidable and we are bound to make mistakes. Since mistakes are an unavoidable burden of cooperative life, principles of justice should tell us how to distribute it, just as they do with other burdens. His conclusion is that these mistakes are a collective responsibility, not the distinctive responsibility of some particular police officer, IRS official or housing official — they are merely authorised agents of our political community. To single out frontline enforcers to bear the harmful intervention, to say they did wrong, is itself unfair and unjust. So part of what it means to hold public office is this: when the political community makes a mistake, you will not be held individually to account.
— Jonathan QuongThe argument does not cover racist and sexist laws
Quong stresses that the proposal has boundaries: it covers only mistakes arising from sincere good-faith disagreement among people who share certain core values of freedom and equality, because that is what is unavoidable in cooperative life. If someone holds deeply repugnant racist or sexist views and tries to impose them on others, that is not an unavoidable burden of cooperative life, and we can eliminate it. So policies that are seriously and manifestly unjust and do not stem from good-faith disagreement are not covered by this argument, and we need not treat them as presumptively legitimate. He regards this as an advantage of his proposal — it does not legitimate every mistake.
— Jonathan QuongIn their own words · checked verbatim
political philosophy has been dominated by two questions, who gets what and says who
Jonathan Quong10:32
So the puzzle for me is that I am very tempted by each of the three claims, as I think many others are. But how can that be true?
Jonathan Quong16:51
We disagree about a lot of stuff. We all can't be correct. And that introduces the kind of almost inevitable fact that however we choose to resolve those disagreements, we're sometimes going to be making mistakes.
Jonathan Quong24:06
One says it in a kind of extreme way. Look, justice is fairly straightforward, has very determinate implications, and we shouldn't expect a tremendous amount of sincere good faith disagreement about it, whereas the other extreme view says it's incredibly indeterminate, right? It gives very few determinate answers.
Jonathan Quong34:34
But just because something is in general instrumentally valuable, it doesn't follow that you should do what you're directed to do in each and every instance.
Jonathan Quong41:49
I find it really hard to believe that the value of relations of equality or the value of respect is reliably sufficient to explain why that law is legitimate despite being deeply and seriously unjust.
Jonathan Quong47:00
the mistakes are kind of our collective responsibility this is just something that was you bound to happen when we all live together
Jonathan Quong54:18
We knew that we were collectively going to make these mistakes, but we've made you the sort of, you know, the front lines of these errors and are now going to hold you uniquely responsible. That seems to me to be deeply unfair and unjust.
Jonathan Quong55:18
Glossary
- legitimate injustice
- A law that is substantively unjust, yet officials who enforce it do nothing wrong and citizens have no right to obstruct it.
- ordinary laws
- Everyday legislation that does not violate widely accepted core human rights and does not violate the country's constitutional procedures.
- service conception
- Raz's theory of authority: an authority is justified insofar as it serves the governed by helping them conform better to reasons.
- normal justification thesis
- Raz's thesis: an authority is justified when obeying its directives conforms better to one's existing reasons than weighing them oneself.
- weighing problem
- Quong's objection to the intrinsic-value-of-democracy view: it cannot say how much that value weighs, or whether it can outweigh substantive injustice.
How to listen
People working on institutional design, compliance and public policy, and founders and investors concerned with the jurisprudential dispute over whether unjust laws should be obeyed.
Roughly 1 minute of sponsor advertising at the start and roughly 1 minute at the end, plus the host's introduction before 3:08.