6 Two Theories, Not One

By contrast, in the view that Wolterstorff defends, the authority of the state is not simply a right to use a certain kind of power. Rather it is a certain kind of power. The power in question is not a causal power but a “moral” power, a potestas—a power to generate a moral obligation on the part of the subjects to obey its commands, precisely by issuing them. In Wolterstorff’s view, the superiority of this theory lies in the fact that it makes the foundations of obligation transparent. The phenomenon of potestas, or moral power, also enables Wolterstorff to dismiss another challenger to the potentialist theory—a theory associated with Hart and Raz, which defines authority by the fact that it gives the subject both a reason to do what is commanded, and a reason to suspend some of his prudential reasons for not doing so. Wolterstorff simply observes that this account puts the cart before the horse. Perhaps authority does have the characteristic asserted for it by Hart and Raz; but if so, it has this characteristic precisely by virtue of the fact that authority is a potestas. Authority ought then to be defined according to the more fundamental thing, which is potestas, rather than the less fundamental thing, the change in the reasons for acting to which potestas naturally gives rise.

Wolterstorff’s main objection to both of these theories is that they make authority pointless. There may here be a certain misunderstanding of what contractarians believe. The form of his argument is that if conformity to necessary commands can be achieved without the recognition of the state’s authority, then this authority is not needed. He takes contractarians as rejecting the implication, but what they actually reject is the premise. Among other things they hold that conformity to necessary commands cannot be achieved without recognition of the state’s authority. The subject will too often lack other motives to obey.

However, contractarianism suffers from a deeper weakness, and about this deeper weakness Wolterstorff is surely right. Contractarianism depends on the paradox that the right of the state to make me do things I don’t want to do rests on my consent that the state be able to do this. The catch is that the state must have the right to coerce every subject, and therefore it must obtain the consent of every subject. This catch is its downfall, because there is always someone who does not agree. To get around the difficulty, contractarians invent all sorts of devices for making non-consent look like consent. In Locke alone, we find at least three.

1. My unconditional consent to a thing, expressed by a promise, implies my equally unconditional consent to the conditions necessary for the continuance of the thing. In the case of political society, says Locke, these conditions include the power of the state to coerce me, even when I disagree with the particular law which I am commanded to obey.

2. My conditional consent to the benefits of a thing, expressed by receiving them, implies my equally conditional consent to the conditions necessary for their continuance. In the case of the laws, says Locke, these conditions include my compliance, just so long as I live within the territory wherein their protection is enjoyed.

3. My conditional consent to any social convention, expressed by participation in it, implies my equally conditional consent to its reasonably foreseeable consequences. Locke’s example is that participation in the convention of money implies consent to its reasonably foreseeable consequence of inequality. But he could just as well have proposed that the participation in the convention of political society implies consent to its reasonably foreseeable consequence of coercion.

Wolterstorff does not distinguish these devices. Lumping them together as “tacit consent,” he merely comments on the rightness of dismissing them. This is one of those places where further analysis would have been helpful. Consider for example the second device. I certainly regard my receipt of a benefit as placing me under obligation in some of the cases when I have not given explicit consent. For example, suppose that after lapsing into unconsciousness I am taken to the emergency room, where I am revived. Plainly, it makes no more sense to suggest that I have consented “tacitly” than to suggest that I have done so explicitly. Even so, I consider myself obligated to pay the ambulance charge. Why? Because I would have consented had I been able to? No, for I might not have. Is it then that I ought to have consented had I been able to? No again. It isn’t because I ought to have consented to pay (had I been able) that I have a duty to do so; rather, it is because I have a duty to pay that I ought (had I been able) to have consented to do so. The reason that I have such a duty is that I was helped in a way that I could not have helped myself; my feelings and volitions have no bearing on what I ought to do. Now set that example against Robert Nozick’s example of the fellow who drives around the neighborhood blaring music, then comes to my door demanding a contribution toward the cost of the amplifiers. This time I do not consider myself obligated to pay. Why not? Haven’t I received a benefit from the music just as much as from the ambulance? Not what I call a benefit! I never asked to hear the music; I don’t even like it. In this case my feelings and volitions plainly do have bearing on what I ought to do. What makes the two cases different? We really don’t know. What then about a third case—is it at least possible that receiving the benefit of a law might generate an obligation to comply with it? We really don’t know that either. On the other hand, it does seem unlikely that receiving the benefit of a law always generates an obligation to comply with it, and this, perhaps, is all Wolterstorff needs.

In view of the shakiness and uncertainly of humanist theories which attempt to derive political authority from below, Wolterstorff proposes the radical alternative of deriving it from above. On this account, authority is not passed up to the state by some purely human consideration, but passed down to the state by ultimate authority, God. This “transmittal” theory does not maintain that things like the form of the government and the consent of the subjects are unimportant. It might be prudent, for example, to invest the subjects with the power to choose officeholders, or to replace officeholders who misbehave. It might also be the case that God does not transmit authority to all governments, but only to certain governments—for example those moved by the common good rather than by the interest of a faction. To put this another way, the point of the transmittal theory is not that whatever government rules is legitimate. Rather the point is that whatever makes a government legitimate, the authority of a government that is legitimate—that is, its power to generate a moral obligation on the part of the subjects to obey its commands, precisely by issuing them—comes from God.

Wolterstorff gives most of his attention to the weaknesses of the alternative theories. If we ask wherein the intrinsic merits of his transmittal theory lie, I am not sure how he would answer. Plainly, though, it is the only one of the theories he discusses that does not pull itself up by its bootstraps. Humanist theories all try to derive authority—a moral power—either from something submoral (like mere considerations of advantage) or from another moral power which is itself derivative (like the human will, when it is ordered rightly). By contrast, transmittal theory derives human moral power from what might be called the “ultramoral” power of God. In using the expression “ultramoral,” by the way, I do not mean to suggest the view that God is somehow above goodness or that His commands are arbitrary. Rather I mean that he is himself the Good—the uncreated Good in which all created goodness finds its origin, and from whom alone all created authority takes its source. In short, I think Wolterstorff’s pre-modern theory of authority comports most fittingly with a pre-modern metaphysics.

For example, in Summa Theologica, Prima Secundae, Q. 90, Arts. 1–4, and 96, Art. 4, St. Thomas explains that unless an edict satisfies certain conditions, it is not truly a law—and that an edict which is not truly a law does not “bind the subjects in conscience.” What this means is precisely that it does not generate an obligation on their part to obey. On the other hand, if the edict does satisfy these conditions, then it is truly a law, and does generate an obligation to obey. One of these conditions (not first in order) is that the edict must have been made by someone in authority. The other three conditions are that it must be a rule of reason rather than whim, it must be ordained to the common good rather than to someone’s private good, and it must be promulgated rather than kept secret. If we turn this around so that instead of answering Thomas’s question “When is an edict a true law that binds in conscience?” we are answering Wolterstorff’s question “In what does authority consist?,” we get this: Suppose that a particular edict really is a rule of reason, ordained to the common good, and made known. Authority is that which goes further and makes it a genuine law by investing it with obligation. And the power to invest something with obligation—more precisely, the power so to invest something which is otherwise qualified to be obligatory with obligation—is precisely what Wolterstorff thinks authority is.

Wolterstorff and St. Thomas agree almost as closely about the source of authority as they do about its nature, for St. Thomas also promotes a transmittal view. In Q. 93, Art. 3, for example, he states that “all laws, insofar as they partake of right reason, are derived from the eternal law”—that is, from the wisdom of God as Chief Governor of the universe. Moreover, if one closely traces what St. Thomas means by “right reason,” one finds that he understands human lawmaking authority more along the lines of the “delegation” model that Wolterstorff approves than along the lines of the “deputation” model for which Wolterstorff criticizes Calvin. By contrast with Calvin, St. Thomas conceives legislators not as prophets, or something like prophets, but as deliberators. When they deliberate well, however, they take their guidance from what is truly good for us—from truths in the practical order which they do not invent, but discover. The matter is put memorably by St. Thomas in Q. 91, Art. 2, where St. Thomas explains that man is a measured measure; first we are ruled and measured by God’s law, but within this framework we rule and measure lesser matters. To put it yet another way, not only are we subject to God’s providence, but also, through deliberation, we partake of a share of that providence, by providing for the things entrusted to him by God. This is what happens in government, whether the government of a household or the government of a state.

I don’t wish to chide Wolterstorff for reinventing the wheel. Or not much. Although he borrows the medieval idea of potestas, the authority on which he grounds his theory of authority is the Bible. The novel part of his theory, in my view, is to take the ideas about judgment, authority, and transmittal of authority, which are implicit in Romans 12:19–13:7 and other biblical passages, and make them explicit. The significance of this achievement is that it makes it possible to reunite the biblical account of authority with the account of authority found in the tradition of natural law.

We had better understand why these two accounts need reuniting. It is not as though natural lawyers themselves had sundered them. To speak again of the Summa, St. Thomas plainly regards the Bible and natural law as complementary. The former is God’s direct revelation through words, the latter His indirect revelation through the rationally evident order of creation. Each illuminates the other. But although Thomas takes the correspondence of these two modes of revelation for granted, he does not always talk about it. In later times, through careless reading of both the natural law tradition and Scripture itself, many thinkers have assumed that the natural law tradition is somehow unbiblical. At least with respect to the doctrine of authority, Wolterstorff makes this mistake impossible.