Legitimacy Revisited: Moral Power and Civil Disobedience

Abstract In Legitimacy: The Right to Rule in a Wanton World , I offer both a conceptual analysis of legitimacy, the power-liability view, and a substantive moral theory, the free group agency view. Here, I defend my account against three challenges brought by Kjarsten Mikalsen. First, though I argue that conceptual analysis should not prematurely close open moral questions, it is not my view that conceptual analysis must have no substantive implications. Second, though I acknowledge that free group agency ordinarily supports a moral duty to obey, it is a feature, not a bug, that my conceptual analysis is consistent with moral theories that disagree with my preferred moral theory. Third, I argue that Mikalsen’s proposed explanation of justified civil disobedience, which sees law in such cases as creating a moral claim-right that entails a merely presumptive duty, is less perspicuous than the explanation given by the power-liability view. Along the way, I emphasize that the distinction between felicitous moral power and justified causal power is as important as the distinction between moral liability and moral duty.