Allegiance and Lawful Government

Abstract

W HEN we say of a given government that it is lawful or legitimate or de jure, having in mind here a contrast with merely de facto governmental status, we use concepts which are initially resistant to clear analysis. Classical legal theories are of no immediate help, for the distinction we are employing appears to be denied by realism, denied or overlegalized by positivism, and overmoralized by natural law doctrines. The distinction is overlegalized when it is claimed that one can give an account of the lawfulness of an entire government which is logically on all fours with the account that would be given for the lawfulness of particular rules within that government. It is overmoralized in theories which fail to appreciate that the circumstances in which one would say that a government is not legitimate or lawful constitute, if moral at all, a very restricted class of moral circumstances. If a government was merely disutilitarian, for example, we would not be likely to condemn it as unlawful or illegitimate on that account alone-though we might condemn it in other ways. If legitimacy claims were just ordinary legal claims or ordinary moral claims, we would not find them nearly as puzzling as we do. And so the concepts of legitimacy and lawfulness, when predicated of governments, stand in need of analysis. We need to inquire into what, if anything, is marked by the distinction between de jure and de facto governments. And if we ultimately con.clude that no coherent distinction is marked, we ought to be able to explain why this is so. In a recently published paper,' Professor R. M. Hare has addressed himself to these troublesome issues. Since I think that what he says is quite instructively wrong, I should like to discuss his account in some detail. After exploring the errors of that account, I shall attempt to map, these concepts (law ful, legitimate, de jure) in a way that will explain why it is that claims involving them are indeed puzzling. As a start, it will be useful to consider the character of the view Hare has in mind to attack. This view is generally that of legal -positivism, a position which Hare somewhat uncharitably refers to as the Might is Right theory.2 He believes that the theory entails that the lawful government is simply that government which has the power, that it in effect denies that there is any legitimate de jure-de facto distinction. In what sense is this an entailment of legal positivism? Though various positivistic theories differ in detail, legal positivism typically gives the following general characterization to legality: A social system S is a legal system if (a) S is a coercive system of social control and (b) S provides, through a hierarchy of normative rules, for a distinction between valid coercion and invalid coercion (violence). The theories of Hobbes, Austin, and Kelsen all have this general structure; but it is the second condition, much emphasized by Kelsen, which is of primary importance. For it makes the