King's Student Law Review

The anarchist Mikhail Bakunin in his work God and the State famously stated:

“The liberty of man consists solely in this, that he obeys the laws of nature because he has himself recognised them as such, and not because they have been imposed upon him externally by any foreign will whatsoever, human or divine, collective or individual.”[1]

His view is that the liberty of a person equals his autonomy in the Kantian sense, and thus is irreconcilably incompatible with, inter alia, obedience to law, where ‘law’ is the rules imposed by the state and society. This statement is a necessary premise for his collective anarchism, the other being that a person must value his liberty over the other values offered by obedience to the law. The aim of this essay is to point out the possible objections to both premises and ultimately to Bakunin’s anarchism. Against the first premise, I shall argue that the relationship between the liberty of man and obedience to law is first and foremost a matter of interpretation of the relevant notions. In particular: a) ‘the liberty of man’ does not necessarily equate solely to or consist solely in Kantian ‘autonomy’ as Bakunin claimed, and b) if there can be many reasons for a person to do something, then there may be circumstances in which ‘obedience to law’ can be compatible with personal liberty. Against the second premise I shall argue that c) even if personal liberty is incompatible with obedience to the law, there may be good reasons for a compromise to be reached.

a) Bakunin’s idea of liberty and freedom is the same as that of R. P. Wolff, who argued that a person is free when he acts according only to what he recognises as right; he is still free when he does as someone tells him to, but only if, not because, he is told to – in In Defense of Anarchism.[2] He is free when he makes laws for himself and obeys them; this is the Kantian ‘autonomy’ (see, for an example, in the Fundamental Principles of the Metaphysics of Ethics).[3] When referring to ‘obedience to law,’ what is usually meant is ‘obedience because it is law.’ If seen in this way then, liberty and ‘obedience to law’ are incompatible. But there can be other meanings of personal liberty different from Bakunin’s and Wolff’s that are compatible with this notion of ‘obedience to law.’ When saying ‘the liberty of man consists in A,’ A can equally be Hohfeld’s ‘privilege,’ meaning the lack of duties, or ‘claim-right,’ meaning the right to do something without interference.[4] Some fundamental features of the Kantian ‘autonomy’ and the Hohfeldian ‘claim-right’ are different so as to make them incomparable, such as the exclusively internal dimension to the agent, but when used in relation to ‘obedience to law,’ either may suffice. This is because the question at hand is the relationship between the agent and something external, i.e. the law, and saying that the two are incompatible because ‘autonomy’ is exclusively internal, is to beg the question. This objection applies equally to Wolff’s argument that autonomy and authority are irreconcilably incompatible.  It is only because he has adopted the Kantian notion of ‘autonomy’ for ‘liberty’ that this conclusion could be reached without a further premise, but there is no argument offered in support of this initial adoption. I am not arguing that the other alternative meanings of ‘liberty’ are not incompatible with ‘obedience to law,’ but only that unless there is a positive argument for adopting the Kantian concept of ‘autonomy’ for ‘liberty,’ which can easily be shown to conflict with ‘obedience to law,’ then it is still necessary to have a positive argument in favour of this apparent conflict.

b) In assuming that ‘personal liberty’ means the Kantian ‘autonomy,’ there may still be circumstances where ‘obedience to law’ may not be incompatible with it. Wolff and Bakunin would argue that because autonomy is more important than authority it should be chosen, and at the same time that libertarians chose authority because they prefer it to autonomy. However, ‘obedience to law’ can have a different construction so as to make it compatible with ‘autonomy’ so understood. That is to say, it can mean ‘obedience because it is law,’ but that it is law does not have to be the sufficient cause for obeying. It must be the necessary cause in order for the notion of ‘obedience to law’ to retain its fundamental meaning, but so long as it is not the sufficient cause, autonomy can have an effect on the final obedience as a cause as well, and as such the two cannot be incompatible. On the first level, one obeys the law because he recognises it as something that should be obeyed. Kant would insist that this recognition is simply coincident with the conclusion the agent reaches through his rational thought process, and Wolff adopts this position. For him, recognising that the law ought to be obeyed on a general level and without thinking is to give up one’s own autonomy[5], but this is not necessarily true. It could be the case that after proper rational thinking, the agent comes up with the conclusion that for what Parliament makes into law, there must be good reason, and so it ought to be obeyed if only as a rule of thumb. This brings in the second level of obedience where one obeys the law because it is law, and because he recognises that he ought to do so because it is law. There is no authority in the legislator itself, but this does not automatically make ‘obedience to law’ lose its fundamental meaning. There is no coincidence in this case, but the reason to obey the law is seen as a ‘prudential reason.’ Joseph Raz in his The Authority of Law argues that a prudential reason to obey does not establish obligation to obey[6], but that does not affect the issue at hand because there is prima facie nothing in ‘obedience to law’ that suggests this obligation. It is only a state of fact, and if so, it does not necessarily conflict with ‘autonomy’ as defined in Bakunin’s statement.

A different strand of this objection is related to c), the reason to give up one’s own autonomy. If a person voluntarily delegates his autonomy to another who then makes the law, ‘obedience to law’ has its root in this initial delegation; indeed ‘obedience to law’ is valid because it originates from this delegation. This is Jean-Jacques Rousseau’s ‘social contract,’ [7] the idea of which founded democracy, which in turn is seen as the epitome of autonomy. Prima facie, something that originates from another cannot of necessity conflict with it, so again to claim that ‘autonomy’ necessarily conflicts with ‘obedience to law’ without a positive supporting argument is to beg the question.

c) Finally, even if ‘personal liberty’ so defined and ‘obedience to law’ do conflict, then as Wolff argued there may be good reasons to give up personal liberty. Bakunin is an anarchist because, if he is consistent with his statement on ‘liberty,’ he chooses ‘liberty’ over authority. The most obvious reason why he does this is because he regards ‘liberty’ as a more fundamental value than the benefits the law offers. This is consistent with Wolff’s claim that there is a moral obligation to exercise one’s autonomy as much as possible, and so anarchism is the only political doctrine consistent with morality[8]. This is not necessarily true. As Wolff himself admitted, there can be good reasons to give up one’s autonomy, for example, a lack of expertise or information. Libertarianism is exactly the doctrine that claims that the state and the realm of law should be kept to a minimum, i.e. to the necessary aspects only. That means that only in situations where it is impossible for a person to make a decision by his own reasoning should the law govern. This is consistent with Wolff’s identification of one’s moral obligation to exercise his own autonomy so far as possible, at least in theory.

To establish whether libertarianism is in practice the right compromise between ‘autonomy’ and ‘obedience’ requires the definition of ‘necessity,’ which is outside the scope of this essay. Perhaps in practice it is impossible to define such a term, in which case libertarianism loses its usefulness as a political doctrine. However, from the discussion above we can see at least a prima facie defense of the status quo. That is to say, until anarchism is backed up by comprehensive philosophical and moral systems, or at least until there are justifications for adopting a particular definition of a concept over another equally valid one, it cannot be supported and we therefore have good reasons to choose any mode of society but anarchism.

Thu Hoang

King’s College London 2013