The Idea A Legitimate State: David

DAVID COPP The Idea of a Legitimate State
Imagine that a drug-smuggling cartel organizes a coup and overthrows

the democratically elected government of Exemplar. It establishes a dic-
tatorship under a new constitution with the leading members of the
cartel in the key political positions. Call this the Coup Example. The
cartel has created a rogue state, and we want to say that this state is not
“legitimate.”What would we mean by this, and why would we want to
say it? At root, the idea is surely as follows. Prior to the coup, as a mere
band of criminals, the members of the cartel had no right to impose
their will on the people, and nothing has been added to their credentials
that would give them a right to do this. Simply to overthrow the state
and replace it with a state of their own design does not give them this
right. Of course, they can now dress their demands in the trappings of
law, but this does not add any moral authority to their actions. Hence,
the members of the cartel have no right to rule the people of Exemplar,
and neither does their newly constituted state. To be sure, other states
will eventually come to treat the cartel as the “legitimate” government
of Exemplar-they will “recognize” the cartel as the government. Our
point, however, is a normative one about the relation between the rogue
Earlier versions of this paper were presented to the Departments of Philosophy at Bowl-
ing Green State University, the University of Wisconsin at Madison, and the University of
British Columbia, and to the Philosophy Program in the Research School of Social Sci-
ences of the Australian National University. I am grateful to the participants in the discus-
sions that followed these presentations for their many helpful comments. I am especially
grateful to Christopher Morris, David Schmidtz, David Sobel, and the Editors of Philoso-
phy G Public Afluirs for extensive systematic comments. My work on this papcr was as-
sisted by research fellowships at the Social Philosophy and Policy Center, Bowling Green
State University, at the Centre for Applied Ethics, IJniversity of British Columbia, and in
the Philosophy Program of the Research School of Social Sciences, Australian National
University.
0 iggg by Princeton University Press. Philosophy G Public Afsairs 28, no. 1

4 Philosophy G Public Affairs
state that has been newly founded by the cartel and the people and
territory of Exemplar. It is about the moral authority of the rogue state,
not about the likelihood that other states will treat it a certain way.
Unfortunately, reasoning similar to our reasoning in the example
might force us to conclude that virtually no state is legitimate, for virtu-
ally every state owes its existence to some combination of events that
includes a share of skullduggery, or worse. Therefore, unless we agree
that virtually no state is legitimate, we need to explain how a state can
become morally rehabilitated, even if it began by being illegitimate. The
first question that I need to address, however, is what the legitimacy of
a state would consist in.
When we evaluate a state for its legitimacy, our concern is to assess
its moral authority to govern. The laws of a state require or prohibit us
to act in certain ways, and the state typically enforces its law by attach-
ing punishments or penalties to failures to comply. Criminal law is only
one example, and it is not a typical example, since unlike other parts of
law, much of the criminal law requires actions or forbearances that
would be morally required in any event. In other parts of the law, such
as the traffic code, some actions that are legally required would not be
morally required in the absence of the law. In all of these cases, there is
the problem of explaining by what right the state imposes requirements
and by what right it enforces them. Moreover, states are territorial.’ A
state may apply its law to anyone within its territory, including many
who have no special attachment to it, such as illegal immigrants and
their children, and temporary visitors. A state may attempt to control
the use of land and resources within its territory, and states define the
rules of property. Moreover, states enforce their boundaries by control-
ling entry into and exit from their territories. The territoriality of the
state raises the problem of explaining by what right the state takes juris-
diction in these ways throughout a given territory.
The problem of legitimacy is, then, to explain how a state can have the
I. This may seem obvious, but it has not been sufficiently taken into account in discus-
sions of legitimacy. See Lea Brilmayer, “Consent, Contract, and Territory,” Minnesota Law
Reuiew74, no. 1 (1989):1-35, and “Secession and Self-Determination, A Territorial Interpre-
tation,” YuleJournal of International Law 16 (1991):177-202.See also Allen Buchanan, “To-
ward a Theory of Secession,” Ethics 10 (1991): 322-42, and Secession: The Morality of Polit-
ical Divorce from Fort Sumter to Lithuania and Quebec (Boulder, Colo.: Westview Press,
1991).It may seem that states are not necessarily territorial. I will address this worry in what
follows.
5 The Idea of a Legitimate State
moral authority to do the kinds of things involved in governing. In part,

it is the problem of explaining how a state could be morally entitled to
impose and to enforce its law throughout its territory and to enforce its
borders. In A. John Simmons’swords, a legitimate state would have “the
right to rule.”2The problem is to understand, first, precisely what this
right amounts to, and second, under what conditions a state would have
it. According to the traditional account, the legitimacy of a state is to be
explained in terms of its subjects’ obligation to obey the law. In Section
I1 of this article I argue that this account is inadequate. In Section I11 I
take an inventory of various kinds of rights, and in Section IV I propose
that the legitimacy of a state would consist in its having a bundle of
rights of various kinds, which I attempt to specify. In Sections V and VI
I discuss familiar accounts of the circumstances under which a state
would be legitimate, and I argue that none is satisfactory, given my pro-
posal as to what the legitimacy of a state would consist in. Finally, in
Section VII I propose an argument from societal needs which, I claim,
supports a presumption that states are legitimate. Before we can begin
exploring the idea of legitimacy, however, we need to understand the
notion of the state. What is a state?
I. THEIDEA OF A STATE
Part of the problem is terminological. Speakers of contemporary Eng-
lish, especially North Americans, tend to use the term “state” to refer to
things that are not states in my sense of the word. For example, the
“states” of the United States and of Australia are subordinate political
units or jurisdictions of the United States and of Australia, respectively,
but they are not states in my sense of the term. The United States is a
state in my sense of the term, however, as are Australia, Mexico, and
France.
States are often called “nations,” as when we speak of “our nation’s’’
flag and capital or pledge allegiance to the “nation,” but I want to re-
serve the term “nation” for a different kind of entity altogether. An idea
of the nation is prominent in discussions of secession, for the groups
that aim to secede from a state often claim to be nations. Clearly in this
context, the term “nation” is not being used to talk about entities that
2. See A. John Simmons, Moral Principles and Political Obligations (Princeton:Princc-
ton University Press, ig7g), pp. 195-200.
are already states. I want to reserve the term “nation” for groups or
populations of this kind, groups such as the Basques and the Qu6b6cois.
As I use the terms, therefore, state and nation are two quite different
animals. It is possible for a state to be created for a nation just as it is
possible for the population of a state to be or even to become a nation,
but the concept of a state is different from the concept of a nation.
What, then, is a state? It might be said that a state governs the people
of a territory. But at most this tells us what a state does without telling
us what a state is. What is it that governs the people of a territory? The
government does this, of course, but a state should not be identified
with those people who happen to be in government at any given time.
A typical state lasts through a great many changes of government, and
in principle any state could last for generations. The state shares these
properties with the institutions of government, which suggests that we
might identify the state with these institutions. What then are the insti-
tutions of government? These include the institutions that make laws,
those that administer the law, and those that adjudicate disputes about
law. Also included are the police, the other institutions that enforce the
law, the military, and, in the contemporary world, the complex institu-
tions operated by the civil service that administer the programs of the
government. As a first approximation, then, one might propose to iden-
tify the state with the institutions of government.3
An institution can be conceived as a system of offices or roles. So
understood, the institutions of government could be described without
mentioning the people who occupy the relevant offices and roles at dif-
ferent times. But it will not do to think of the state in such an abstract
and impersonal way, as simply a system of offices. It is much more nat-
ural to think of the people who occupy the offices and roles, and who
perform the relevant duties, as part of the state, at least during the times
they occupy those offices and roles. To coin a phrase, I will say that an
“animated institution” is an institution or system of offices and roles
together with the people who occupy these offices and roles during the
times they do so. An animated institution is a flesh-and-blood thing
with which we could have a disagreement or to which we could feel a
sense of loyalty. Suppose we think of the state as an animated institu-
3. See the discussion in Quentin Skinner, “The State,” in Robert E. Goodin and Philip
Pettit, eds., ContemporaryPoZiticuZ Philosophy,An Anthology (Oxford:Blackwell, igg7), pp.
3-26, especially at pp. 8, 16.
tion. So understood, the state consists in part of a system of offices and

roles-president, member of the legislature, judge, secretary, manager,
police officer, and so on. As time passes, new offices and roles might be
added, so a state presumably consists of different offices and roles at
different times. Each of these offices and roles can be paired up with the
person occupying it at the relevant times. The state is, then, the relevant
system of offices and roles together with the people who occupy those
offices and roles at the relevant times. That is, the state consists of the
“animated institutions” of government.4
This understanding of the state rests implicitly on the idea of a legal
system, for the institutions of government are creatures of the law. They
are defined legally, in the constitution and in various statutes that have
been enacted under the constitution.5 It is true that the notion of a legal
system is not well understood, but we need to start somewhere, and I
believe that the notion is sufficiently clear that we can at least identify
legal systems and the territories in which they are “in force.” We can use
these notions here to illuminate the idea of a state.
I therefore propose to characterize a state in the following way. Begin
by identifying a legal system and the territory in which the system is “in
force” in the sense that residency in it is sufficient to put one under its
jurisdiction.6 The state is the system of animated institutions that gov-
ern the territory and its residents, and that administer and enforce the
legal system and carry out the programs of government. A state corre-
4. Technically my proposal is quite complex. A state is to be modeled as a temporally

ordered set of sets of n-tuples-each n-tuple represents an office or role together with the
people who hold that office or role; each set of n-tuples represents the animated institu-
tion at a time; and the ordering of the sets of n-tuples represents the changing nature of
the institution through time.
5. It is worrisome that it might be necessary to invoke the idea of the state in order to
explain what a legal system is. Law, it might be said, is the set of rules created by govern-
ment. If this is so, then our characterization of the state is circular. We define the state
implicitly in terms of the idea of a legal system, but we explain what a legal system is in
terms of the idea of the state. Yet it is not obvious that circularity cannot be avoided.
Perhaps we could give a n adequate account of a legal system without presupposing the
idea of a state.
6. In what sense does residency in the territory put one under the “jurisdiction” of the
legal system? I explain in the next paragraph that I am assuming a positivistic account of
this notion. It is compatible with my account that, in some circumstances, states impose
their law on citizens who are residing outside their territory. It is also compatible with the
account that the law of a state can givc diplomatic immunity to the officials of other states
when they are on official business within its territory.
sponds to the legal system that is in force in a territory. It governs the

people in all of the territory in which its legal system is in force. It rules,
or has jurisdiction, in this territory. It is the animated institutions of
government.7
One might think that this characterization of the state has an awkward
implication. For consider the version of “natural law theory” according
to which only a morally legitimate state could create genuine law. Given
my account of the state, it follows from this natural law view that a legit-
imate state must exist, or must have existed, unless there are no genuine
states at all. For on my characterization of the state, the existence of a
state implies the existence of a legal system, and on the natural law view,
the existence of a legal system implies the existence of a legitimate state.
The legal system of an illegitimate state must have been created by a
legitimate state, perhaps by the illegitimate state itself at an earlier time
when it was legitimate. The point is that the combination of my charac-
terization of the state with the natural law theory implies that if there
have been any states at all, some of them must have been legitimate. To
me, this result seems awkward and counterintuitive. It is a substantive
moral question whether any of the states that have existed have been
legitimate. It is not a question that can be settled as easily as this. I shall
therefore assume that the natural law view is false. I will assume a form
of “legalpositivism” according to which the fact that a legal system is in
force in a territory-the fact that the residents of the territory are under
the system’s jurisdiction-is a complex nonmoral historical and socio-
logical fact about the territory and about the relationships among the
people in the territory8 When we combine this positivistic view with my
account of states, the resulting theory leaves it open that all states might
be illegitimate.
7. There are metaphysical questions here that are better avoided in this essay. Is the
territory that is governed by the institutions of a state essential to it? Is the society that is
so governed essential to the state? Is the legal system essential? Regarding the latter ques-
tion, I think the legal system is essential. Replace the French legal system with another
system and you replace one French Republique with another. But I think that neither the
society nor the territory that is governed by a state is essential to it. Fortunately, however,
nothing in this essay turns on this matter. There is an entity that the society and territory
governed by a state are essential to, however, as we will see. It is the “country.”
8. To be sure, laws can be formulated in language that uses moral terms, and so laws
can have moral content. But when a law has moral content, the fact that it does is deter-
mined by facts of the sort mentioned in the text. A classic exposition of positivism is found
in H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).
One might suspect that states do not necessarily line up one-to-one

with territories in which legal systems are in force. Imagine a system in
which several statelike entities operate within a given territory, and each
enforces its own legal system on its members. Suppose, for example,
that at some point in the distant future, the French are everywhere sub-
ject to the laws of France, the Germans are everywhere subject to the
laws of Germany, the Japanese are everywhere subject to the laws of
Japan, and so on. And suppose that boundaries have no legal signifi-
cance. One is subject to the legal system of one’s parents. In this case,
France, Germany, Japan, and the rest plainly are not territorial in the
sense I explained, and the overall global system that embraces all of
them appears to consist of several legal systems. But it is not plain that
France, Germany, and Japan would still qualify as states in this example.
Of course, there is not a sharp line between states and near-states any
more than there is between legal systems and their near cousins. Never-
theless, a system of the kind we have imagined would not be feasible
without World laws that determined the jurisdiction, say, of France, in
complicated cases such as cases of mixed French and non-French an-
cestry, and cases in which a French national treats a non-French person
in a way that is lawful in French law but unlawful in the law of the other
person’s group. It seems to me that the total World system in this case
would best be understood as a federation of former states into a new
global state. That global state would be territorial, and it would have a
single legal system in the sense in which federal states have a single
system.9
On the characterization I have given, one state would be replaced by
another state if the legal system or institutions of government were de-
stroyed and replaced by another legal system or set of institutions. In
the Coup Example, I stipulated that Exemplar was overthrown and re-
placed by the rogue state. This seems the correct way to describe a situ-
ation in which the original constitution and government were replaced
abruptly and unconstitutionally by a different kind of constitution and
9. Given the existence of international law, one might wonder whether my account
implies that there is already a single global state, Perhaps it is the United Nations. As I said
in the text, there i s not a sharp line between states and near-states any more than there
is between legal systems and their near cousins. I do not think that international law
qualifies as a legal system with global jurisdiction, but nothing substantive turns on the
issue. I want to ignore the issue in the text in order to avoid distracting complications.
government. In more ordinary situations, changes in the law or in the

institutions of government occur gradually and in accord with the con-
stitution, and it is accordingly plausible to think that the original state
continues to exist. Of course there can be borderline cases, but nothing
turns on whether we can find a sharp line between situations in which
one state is replaced by another state and those in which a state merely
undergoes change.
On my account, a state is to be distinguished both from the territory
that it governs and from the people that it governs. It is worth noticing,
however, a feature of the way that we use names such as “France” and
“the United States.” We may ask, for instance, about the constitution of
“France,” the size of the population of “France,”and the total land area
of “France.” On my analysis, these questions are about the state, the
group governed by the state, and the territory governed by the state,
respectively. Yet the ease with which we view all three questions as
about “France” suggests how natural it is to suppose that there is a sin-
gle entity called “France” that in some way essentially involves not only
the state, but the land and the people as well. I will reserve the term
“country” for such entities. We may view a country as a state together
with the group of people it governs and its territory.’” Legitimacy, how-
ever, is a property of states.
11. THE TRADITIONAL

ACCOUNT:THEOBLIGATION TO OBEY
The traditional view is that the legitimacy of a state would consist in its
subjects’ having a moral obligation to obey its law. Corresponding to
this obligation would be the state’s right to the obedience of its subjects.
On this view, then, the right to rule is a right against relevant persons
that they obey the law.]’ There are two chief problems with this idea.
First, the idea of an obligation is more specialized than is necessary
to capture the idea that the subjects of a legitimate state would have a
moral duty to obey the law. In the sense at issue, an “obligation” is a
10. Formally, we could represent a country as an ordered triple of a state, the group it
governs, and the territory over which it has jurisdiction.
11. Simmons, Moral Principles and Political Obligations, pp. 195-96, 29. Simmons de-
scribes the “traditional” view as the idea that the subjects of a legitimate state have a moral
obligation to obey its law and “support it.” He holds that every “obligation” is “correlated”
with “a right” (p. 14). This traditional idea is implicit in John Locke, Two Treatises of Gov-
ernment, I! Laslett, ed. (Cambridge: Cambridge University Press, 1988 116901).
special kind of moral requirement. An obligation is owed to some agent,

and it corresponds in a precise way to a right possessed by that agent.
Obligations correspond to “claim-rights,” as they are often called. But
obligations are not the only kind of requirement. Other moral require-
ments, including duties, are not owed to any agent and do not corre-
spond in this way to rights.l* If an obligation to obey the law would be
sufficient for the legitimacy of a state, then surely it would be sufficient
as well if people had a duty to obey the law, even if they did not owe their
obedience to the state. This is the first problem with the traditional view.
It would not be an interesting problem except that, as I will explain, the
traditional view seems to lead to a form of philosophical anarchism ac-
cording to which it is doubtful that any actual state is legitimate. And the
arguments that support this anarchistic conclusion turn on the tradi-
tional identification of the legitimacy of a state with an obligation of its
subjects to obey the law. Unless, therefore, we are inclined to accept this
anarchistic conclusion, which I am not, we must question the tradi-
tional identification of legitimacy with a moral requirement of this spe-
cial kind.
Since obligations correspond to claim-rights, we can carry on the dis-
cussion in terms of the idea of a claim-right. In effect, the traditional
view identifies legitimacy with a claim-right to obedience, for a state has
a claim-right against its citizens that they obey just in case its subjects
have an obligation to obey. There are two kinds of claim-rights. There
are “special rights,” which some agents acquire as a result of others’
voluntarily assuming or otherwise acquiring the corresponding obliga-
tions, and there are “fundamental rights,” which are possessed by things
of a relevant kind without having been acquired. The traditional view is
that a legitimate state’s right to obedience would be a special right,
grounded in the consent of its subjects.
The arguments to show that the traditional view leads to an anarchis-
tic result are presented most clearly by A. John Simmons. Simmons ar-
gues that a special right against an agent must be derived either from the
agent’s voluntary commitment or from her voluntary acceptance of
benefits.“ As for the first possibility, Simmons argues that it is implausi-
12. Simmons discusses the distinction between obligations and duties in Moral Princi-
ples and Political Obligations, at pp. 11-16.
13. Ibid., p. 16. In the following, I summarize central arguments made by Simmons in
this book.
12 Philosophy 0 Public Affairs
ble that the subjects of states have voluntarily committed themselves to

obey the law. Actual undertakings would be required, not merely hypo-
thetical ones, for hypothetical commitments do not bind us. And al-
though some naturalized citizens might have consented to obey the law
in the process of becoming citizens, and some citizens might have un-
dertaken to obey the law in some other specific context, such as in the
course of swearing an oath, very few other citizens have so committed
themselves. To commit oneself voluntarily to obey the law would be to
do something with the intention to obligate oneself to obey, and very
few subjects of any state have done any such thing.l4 The other possibil-
ity is that the state’s right to obedience is grounded in an obligation of
its subjects to reciprocate for benefits they have received. Simmons
points out, however, that the goods provided by a state that are available
to all of its residents, such as national defense, public safety, clean air,
and so on, are “public goods.”l5 If a state provides such goods, it pro-
vides them to everyone in a relevant territory. It is implausible that a
person who receives such benefits is thereby obligated to reciprocate.
She may have had no real opportunity to avoid receiving the benefit or
to stop the state from producing it. It is even less plausible that she is
obligated to reciprocate by obeying the law. For the benefits may be
worth less to her than the cost of obeying. They may also be worth less
to her than the cost of paying whatever taxes she is legally required to
pay. In these cases, adequate reciprocation, if such were required,
would involve less than obeying the law.I6 For these reasons, Simmons
argues, it is implausible that any actual state has a special right to the
obedience of its residents.
The alternative is that a legitimate state’s right to obedience would be
14. Ibid., chapters 3 and 4. One might suppose that consent to the state would be suffi-
cient to make the state’s coercion of its subjects legitimate regardless of whether the con-
sequence of their consent is that they have a n obligation to obey the law. In this context,
however, we are viewing consent as important because of its potential to ground an obli-
gation to obey the law.
15. Technically, the notion of a public good is the notion of a good “characterized by
nonrivalry in consumption (i.e., its use by one person does not interfere with its use by
others),” and “the consumption of which is nonexclusive (i.e., if the good is available to
one person, it will be available to all, including those who d o not help to produce it . . .).”
See David Schmidtz, The Limits of Government:An Essay on the Public Goods Argument
(Boulder: Westview Press, iggi), p. 55. Consider lighthouses. Barring crowding at sea, their
use is nonexclusive and nonrivalrous.
16. Simmons, Moral Principles and Political Obligations, chapters 5 and 7.
a fundamental right. Since it is not plausible that every state is legiti-

mate, a viable defense of this alternative would have to identify a prop-
erty that distinguishes states that are plausibly held to be legitimate
from states that are not. Moreover, it would have to show that this prop-
erty grounds a claim-right to obedience, a claim-right held by the state
specifically against its subjects. It might seem that the property of being
a just state is a candidate for this role, given the plausible idea that we
have a duty to support just institutions.’7 But, first, as I will argue later
in this article, it is implausible that only just states are legitimate. More-
over, if there is a duty to support just institutions, it would seem to be
a duty incumbent on everyone, not specifically on those who are subject
to just institutions. Finally, it is doubtful that this duty would be owed
to those institutions.@What has to be grounded is not merely a duty to
obey the law, but an obligation owed to the state specifically by its sub-
jects, and it is quite unclear what property of a state might ground such
a thing, given the objections to the traditional view. It therefore seems
doubtful that any actual state has a fundamental right to obedience.
For these reasons, it is doubtful that any actual state has a claim-right
to the obedience of its subjects. On the traditional view, it follows that
it is doubtful that any actual state is legitimate. But, as we have seen, the
arguments for this anarchistic result turn on the traditional identifica-
tion of the legitimacy of a state with its having a claim-right to obedi-
ence, or with its subjects’ having an obligation to obey. And there is no
reason to accept this identification, for there is no reason to think that
a state’s legitimacy depends on its citizens’ having an obligation as op-
posed to some other kind of moral requirement to obey the law. The
traditional view is on the right track in insisting that the citizens of a
legitimate state would be morally required to obey the law. But they
could be required to obey even if they do not owe their obedience to the
state, even if the state has no claim-right to their obedience.
The second problem with the traditional view is that its account of
legitimacy is too slim to ground an adequate account of the territoriality
17. A legitimate state would presumably be just at least in that one respect, for it would
have the right to rule. Illegitimate states rule unjustly, for they rule without having the right
to rule. What I have in mind is the idea that the property of being just in other respccts
might ground the legitimacy of a state.
18. A. John Simmons makes essentially this point in Moral Principles and Political Obli-
gations.
of the state.lg The territorial rights that would be possessed by a legiti-

mate state cannot adequately be explained in terms of an obligation of
its subjects to obey the law. First, a state purports to have the right to
govern its territory, which includes enforcing its laws against any mem-
bers of other states who live in its territory as well as controlling access
across its borders. But even if the members of state A have an obligation
to obey the laws of A, members of state B who live in state A might have
no such obligation on the traditional view. Consider, for instance, Betty,
a member of B who has entered state A illegally. She might not have
explicitly consented to obey the laws of A, and she might not have lived
there long enough to have benefited from living in A. Yet state A would
claim the right to apply its law to her. A defender of the traditional view
might argue that, in entering A, Betty must have “tacitly” consented to
obey the laws of A. But in order for Betty’s mere crossing of the border
to have put her under an obligation to obey the law of A, Betty would
have to have crossed the border with some relevant intention or under-
standing, such as the intention thereby to obligate herself to obey, and
it is unlikely that Betty had any such intention.‘O It is especially unlikely
that she intended to obligate herself to obey the very law that prohibited
her act of crossing the border, since, for one thing, she presumably
could be deported under that law. Indeed, state A would claim to have
had the right to refuse to allow her to enter even before she actually
attempted to enter. It is difficult to see how the traditional view could
account for A‘s having any such right, since it would be quite irnplausi-
ble to maintain, even before she entered A, that she must already have
consented to obey the laws of A, even if only “tacitly.” Moreover, sec-
ond, state A purports to have a right not to be interfered with by any
other state in governing its territory. It is difficult to see how the tradi-
tional view could explain this, especially since, for example, Betty might
have consented to B’s intervention on her behalf and, again, we are
assuming that she has not explicitly consented to obey the laws of A and
that merely crossing A’s border is not sufficient to obligate her. It is
difficult, therefore, to see how a state’s claims regarding its borders
19. The idea that a legitimate state would have a claim to obedience is also too weak by
itself to explain the state’s entitlement to enforce legal requirements since its subjects
could be obligated to obey the law without its having any right to enforce the law.
20. Here once again I follow Simmons, Moral Principles and Political Obligations,
chapters 3 and 4.
could be given a plausible explanation on the traditional view.”‘ The

situation is not improved if we turn to the idea that our obligation to
obey the law is grounded in a duty to reciprocate for benefits received.
For the benefits of a state’s investments in public goods can spill over
into territories that it has no right to rule on any plausible account. For
example, state A’s attempts to prevent air pollution can benefit the
downwind members of state B. State A does not acquire a right to the
obedience of members of state B on this basis. The traditional view
therefore is inadequate to account for the territoriality of states.
This problem is deeper than it might appear to be, for the traditional
view cannot adequately explain the sense in which a legitimate state
would be associated with a territory. It explains legitimacy in terms of
an obligation to obey the law on the part of those people who have
consented to obey the law. The subjects of a legitimate state therefore
would have an obligation to obey its laws regarding their property.
Given this, it would be natural to add to the traditional view the idea that
a state’s territory consists in the aggregated property of its members.22
But it is not necessary that the territory associated with a state in this
sense should coincide with the territory that is intuitively associated
with a state-i.e., the territory throughout which the state’s legal system
is enforced. Anyone could in principle commit herself to obeying the
law of any state. It is not necessary that all the people living in the terri-
tory intuitively associated with a state, nor even that only the people
living in this territory, should commit themselves to obeying its law.
Suppose that Alice has spent her life on her large property, which lies
within the territory intuitively associated with A. But suppose she has
freely committed herself to obey the law of B rather than to obey the law
of A. The traditional view must see her as a citizen of state B, and, on the
proposed account of territory, her property is part of the territory of B
rather than the territory of A. Unless we are given some other account
of legitimate territory, it cannot be argued that Alice must have tacitly
consented to obey the law of A since she resides in the territory of A, for
the proposed account of territory implies to the contrary that she re-
sides in B. Yet, of course, B will view her as a subject of state A, and A
will treat her the way it treats all of its subjects. It will enforce its laws
For similar arguments, see Brilmayer, “Consent,Contract, and Territory.”
21.
Nothing in the traditional view guarantees that the subjects of a legitimate state
22.
have any property, but I shall ignore this worry.
against her, and purport to have the right to do so. It seems, then, that
the traditional view does not give us an intuitively plausible account of
the territoriality of the state.
Of course, I do not take myself to have refuted the traditional view in
this brief discussion. A defender of the traditional view could reply that
the most I have shown is that states have neither the rights nor the ter-
ritories that we intuitively take them to have. I think, however, that my
discussion of the difficulties facing the traditional view suggests that we
need to rethink the traditional analysis of legitimacy. For the arguments
we discussed which show it is doubtful that any actual state is legitimate
turn on the idea that legitimacy requires the citizens of the state to have
an obligation to obey the law, rather than any other kind of duty to obey.
And the argument that even a legitimate state might lack the rights over
territory that we intuitively would expect turns on the fact that the tradi-
tional analysis seeks to explain legitimacy entirely in terms of moral re-
lations derivable from the obligation to obey and the consent on which
this obligation is thought to be based. A different account of legitimacy
might yield a more plausible overall picture.
111. HOHFELDIAN
RIGHTS
We are looking for an account of what the legitimacy of a state would
consist in, and I am assuming that the legitimacy of a state would con-
sist in its having a right to rule. This way of putting things raises the
question, What is meant by a right to rule? What are rights?
Wesley Newcomb Hohfeld observed that lawyers use the term “right”
to refer to four different kinds of legal “advantage,”which he called
“claims,” “privileges,” “powers,” and “immunities.” In recent years,
moral philosophers have proposed similar distinctions among moral
“advantages,” and they have noticed that some rights are clusters of
Hohfeldian ad~antages-~s I will use Hohfelds distinctions in sorting out
various possible interpretations of the purported right to rule.
A claim is a right of the familiar kind that corresponds to an obligation
23. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions,Walter Wheeler Cook,

ed., (New Haven: Yale University Press, 1919). In the following paragraphs, I follow the
account given by Judith Jarvis Thomson, The Realm ofRights (Cambridge, MA: Harvard
University Press, iggo), chapter 1. Thomson introduces the idea that certain rights may be
clusters of Hohfeldian advantages.
owed to the right-bearer by the person against whom the right is held.
Promises and contracts can give rise to claim-rights. For example, if I
promise you to dance under the moon, then I have an obligation to do
this; I owe this to you, and you have a claim against me that I do it. In
general, a person A has a claim against B that such and such if and only
if B has an obligation to A that such and such. A Hohfeldian privilege is
simply an absence of relevant obligations and claims. Person A has a
privilege (against B) to do something if and only if there is no claim
against A (on the part of B) that A not do the thing. For example, if I
hadn’t made the promise to dance under the moon, then presumably
no one would have had a right that I dance under the moon, and so I
presumably would have had a privilege not to dance under the moon.
Even if my promise to you means that I am obligated to you to dance,
there may be no one else to whom I am obligated to dance. If so, I have
a privilege with respect to everyone else that I not dance.
The third kind of Hohfeldian right is a power. Person A has a power
if and only if A has the ability to alter the rights or duties of some person
by performing some (permitted) action. For example, the right of the
United States Congress to legislate in the area of interstate commerce
consists of a legal power to create valid law in this area, thereby altering
people’s legal duties, claims, privileges, or powers. The fourth kind of
Hohfeldian right, an immunity, is simply the absence of a relevant
power in others. The constitutional right to free speech in the United
States, for example, can be understood as an immunity against congres-
sional legislation of certain kind~.~4 These are legal powers and immuni-
ties, but there are also moral powers and immunities. For instance, I
have the power to put myself under an obligation to dance under the
moon by promising, but I have an immunity against being put under
such an obligation by anything you do. You have a power to obligate
yourself, but no power to obligate me.
I must emphasize here that I do not view rights, obligations, or duties
as “absolute.” I have a claim to my privacy, and you have no privilege
to break down my door. You are obligated to leave me and my door
alone. I have the privilege not to open my door to you. Yet if you were
being chased by a grizzly bear, and if your only hope of surviving were
to break down my door and enter my home, you would be morally per-
24. David Lyons, “The Correlativity of Rights and Duties,” NoLis 4 (1970):50-51.
mitted to do so, all things considered, despite my claim and your obliga-
tion. And if you were being chased by a grizzly, I would be wrong not to
open my door to you even though you have no claim against me that I
open it. Rights, obligations, and duties support propositions about what
agents ought to do pro tunto, but although pro tunto duties are genuine
duties, they can be outweighed by other moral factors in a determina-
tion of what an agent ought to do all things considered.*5
IV. THE RIGHT TO RULE

Armed with this inventory of kinds of rights, we can now turn to the
central question, What is the right to rule? What rights and powers do
states purport to have simply in virtue of being states? What rights and
powers would a state need to have in order to have the moral authority
to do the kinds of things that states must do in ruling their people and
their territories? There appear to be three basic aspects to this. First, a
state claims to be morally entitled to impose and to enforce legal re-
quirements on its subjects. Second, a state claims to have a jurisdic-
tional right over its territory, including a right to enforce its borders.
Third, a state claims a right not to be interfered with by other states. The
idea of legitimacy involves all three of these aspects, and the right to rule
is, then, a bundle of Hohfeldian rights. Let us begin with the first aspect,
the right to impose and enforce legal requirements.
(1) The Right to Command Persons

In order to distinguish a legitimate state from a rogue state, we must
suppose that the laws of a legitimate state have some significant norma-
tive status. They must be more than simpiy enactments since that is all
that the laws of a rogue state are. The traditional view, expressed in
Hohfeldian terms, is that a legitimate state would have a moral claim
that its subjects obey the law, but this is implausible, as I argued before.
The subjects of a legitimate state would have a duty to obey the laws, but
this does not entail that the state would have a claim to their obedience.
It is implausible, however, that we have a duty to obey laws regardless
of their content and nature. For this reason, a sensible view would pro-
25. There is obviously no algorithm that I can provide to determine when a right or an
obligation or duty is outweighed. Shelly Kagan uses the term “pro tanto” with this mean-
ing, in his The Limits ofivforulity (Oxford: Clarendon Press, 1989).
pose that whether there is a duty to obey a law depends on the law’s
moral quality. Consider, then, the idea that we would have a pro tanto
duty to obey the morally unobjectionable laws of a legitimate state. If so,
then a legitimate state would have a qualified Hohfeldian power to put
its citizens under a duty to do something by enacting a morally unobjec-
tionable law requiring them to do it.26To explain this, I need to explain
the state’s right to legislate, which involves a Hohfeldian privilege.
A state is not morally free to enact any law whatsoever, for people
have claims that would be violated by certain laws, including laws inter-
fering with the choice of religion and, perhaps, laws imposing the death
penalty. If we have a right to choose our own religion, this right is at least
a claim to noninterference, and its existence implies that a state has no
privilege to interfere with our choice of religion. A state has no privilege
to enact or enforce laws that violate claims. Nevertheless, the idea that
a state is entitled to enforce and enact law can be understood in
Hohfeldian terms as the idea that there is a sphere within which it has
a privilege to legislate. And it surely must be true, if a state is legitimate,
that there is a sphere within which it has a privilege to legislate-a priv-
ilege with respect all of its subjects to enact and enforce laws affecting
them. If a state is legitimate, there surely must be some matters such that
the state would not violate any of its subject’s claims by enacting and
enforcing laws pertaining to these matters.
Robert Nozick‘s argument for the ‘‘minimalstate” is an argument that
the sphere within which a state may legitimately act is quite sma11.*7 The
issue here, however, is not the size of this sphere. It is whether the legit-
imacy of a state consists in part in its having some such sphere. A phi-
losophical anarchist might claim that there is no such sphere of privi-
lege, that a state has no privilege to enact or enforce any law, except
perhaps with our consent, and people typically have not consented. On
26. If a legitimate state would h a w the power to impose a duty on us to do something,

it might seem that we would in some sense “owe”the duty to do thal thing “to” the state
after all. The duty would at least owe its existence to the state. I have no objection to this
way of using the phrase “owe to.” The traditional view was that the citizens of a legitimate
state would “owe” an obligation “to” the state in a sense which entailed that the state
would have a claim-right to obedience. It is not part of my view that a legitimate state
would have a claim-right to obedience. Christopher Morris suggested understanding legit-
imacy in terms of a power possessed by the state. See Christopher W. Morris, An Essay on
the Modern State (Cambridge: Cambridge University Press, 1998), chapter 4.
27. Robert Nozick, Anarchy, State, and Utopia (New York Basic Books, 1974).
this anarchist view, then, states are not legitimate, except perhaps in
special circumstances, for they have no sphere of permissible law. Even
so, the anarchist would presumably agree that a legitimate state would
have a sphere of privilege within which it could permissibly govern.
What she denies is that any state is legitimate.
Suppose that we restrict attention to laws that are “morally innocent”
in that enacting and enforcing them is within the sphere of privilege of
the state and they are in no way unjust. I propose that a legitimate state
would have the power to put its residents under a pro tunto duty to do
something simply by enacting a law, provided that the law is morally
innocent.28The fact that a legitimate state would possess such a power
distinguishes it from a rogue state. The duty to comply with the morally
innocent law of a legitimate state gives its laws a special normative
status by comparison with the laws of a rogue state. In addition, a legit-
imate state would have the power to make it permissible for its officials
to enforce the law simply by enacting laws that provide for the enforce-
ment of law, provided again that these laws are morally innocent.
My view implies that a legitimate state can in principle change the
moral status of actions. A legitimate state can put us under duties to
perform actions that, in the absence of law, would merely have been
morally permissible, provided that the relevant laws are morally inno-
cent. For example, we are under a duty to pay the taxes required by a
legitimate state assuming the moral innocence of the tax law. The view
also implies that a legitimate state can place its officials under duties to
do things that would otherwise have been prohibited, provided that the
relevant laws are morally innocent. For example, in the absence of law,
it would be wrong to harm people in the guise of “punishing” them, or
to exact money from them in the guise of “taxation.” But the law of a
legitimate state can give officials a permission and even a duty to do
such things, assuming that coercive tax laws and criminal laws can be
morally innocent.
One might object that it is implausible to suppose that 1 violate a
moral duty when I exceed the speed limit by a trivial amount on a de-
28. A state “enacts”a law in the relevant sense when it creates a law in accord with the
constitution or in accord with whatever procedural rules are in force. Even in a legitimate
state, controversy about whether a law has been properly enacted, or about whether a law
is morally innocent, would ground controversy about whether there is a pro tanto duty to
comply with its requirements. I am grateful to David Sobel for helpful suggestions about
these issues.
serted highway. I confess that I am not certain how best to respond to

this example. There can presumably be trivial moral wrongs, and the
wrong in a trivial case of speeding is trivial. The underlying question is
whether our intuitions rebel at the idea that we would have a duty to
obey the morally innocent law of a legitimate state. Unfortunately, the
issue is ideological in a way that makes it unlikely that we will agree in
our intuitions. For what it is worth, however, I think the view is not
unintuitive. We do feel that we need to excuse or justify ourselves for
lawbreaking. At least we feel this way if we believe that our state is legit-
imate. Indeed those who reject the idea that there is a duty to obey the
law most likely would try to defend their view by presenting arguments
about the illegitimacy of current arrangements. Arguments of this kind
are exactly what would be appropriate if there were a pro tanto duty to
obey the law of a legitimate state.
The objection does, however, point to various ways in which my ac-
count could be made more subtle and complex. I want to say that a
legitimate state has the power to put us under duties, but perhaps it
does not exercise this power each and every time that it enacts a law.
Many laws are not strictly enforced, and some of the less important laws
are enforced merely by threatened penalties, rather than by threatened
punishment. Perhaps we should say that in order to exercise its power
to put us under a duty, a state must not only enact a law, it must enforce
the law and do so by threatening to punish violations of it.29 It must in
effect announce in some conventionally understood way that the law is
meant to put us under a duty and not merely to change our incentives
by attaching a penalty to an action.
(2) The Right to Control Territory

I explained the idea of a state in terms of a legal system; a state is the set
of animated governmental institutions that enforce and administer a
legal system. The territory of a state is the entire territory in which its
legal system is “in force” in the sense I explained before. This territory
is “its”simply in the sense that it is the territory in which it has “positiv-
istic” jurisdiction-a jurisdiction that consists in a complex nonmoral
historical and sociological fact about the territory and the relationships
among its residents. A legitimate state, however, would have more than
29. I am grateful to Christopher Morris for helpful discussion of the issues raised in this
and the preceding paragraph.
22 Philosophy C Public Affuirs
simply a positivistic jurisdiction. It would have a moral jurisdiction or

authority both over its territory and over residents of the territory. There
are at least three aspects to this.
To begin with, states are territorial in the sense that they apply their
law to all those who reside in their territory. A legitimate state would
have to have the moral authority to do so. That is, the class of persons
relative to which a legitimate state would have the moral powers and
privileges that I discussed in the preceding section would include all
residents of its territory. These people would be the “moral citizens” of
the state, provided it were legitimate.3O
Second, states presume that their authority over their territory in-
cludes a right to control uses of the territory. This right presumably in-
cludes the privilege to enact a regime of property law, including laws
governing the transfer of property, as well as a regime of ordinary crim-
inal law, which presumably would prohibit the use of force or fraud to
seize property. States also presume that they have a privilege to restrict
or control the uses to which owners put their property. The question,
then, is whether this presumption is correct. What kinds of restrictions
or controls on the uses of property, if any, fall within the sphere of priv-
ilege of a legitimate state?
There are a variety of views on this question. At one end of the spec-
trum is the position that any moral property rights that we have are
derivative from the laws of legitimate states. On this view, there are no
antecedent moral property rights that limit the state’s sphere of privi-
lege. At the other end of the spectrum is the idea that there are what we
might call “full natural property rights”-property rights that prohibit
the state from placing any limits or controls on how people use land in
which they have such rights. On this view, if all the land were owned by
individuals who had “full natural property rights” in their land, then the
state would have no privilege to legislate land-use p0licy.3~For my part,
30. Michael Walzer discusses issues about membership in the state in Michael Walzer,
Spheres ofhstice (New York Basic Books, 1983),chapter 2.
31. The idea that there are full natural property rights, or something close to them,
seems to be defended by Ellen Paul. She argues that we need what she describes as “per-
manent exclusive rights to property” in order to survive. It seems clear, however, that
restricted property rights are sufficient for our survival. Most states regulate owners’ use
of their property without thereby preventing their citizens from surviving and prospering.
Our survival is not threatened simply because our property rights permit the state to
impose zoning regulations and to regulate mining, actions that Paul opposes. See Ellen
I think that there are not in fact full natural property rights and that
legitimate states would have the privilege to control how people use
their land within certain limits. For present purposes, however, we do
not need to decide whether there are full natural property rights.
It is nevertheless important to see that the idea that private property
can be justified is not the same as the idea that there are f u l l natural
property rights. One argument for private property turns on the idea
that private ownership gives people incentives to make productive use
of land and other kinds of pr0perty.3~But this argument does not show
that a property owner has, or must be given, a claim against the state
that precludes its restricting or regulating her use of what she owns. The
argument justifies a range of legal regimes that provide for private own-
ership of one form or another, but many such rkgimes would limit an
owner’s right to control what happens to her property. Hence, the argu-
ment does not support the existence of full natural property rights. For
all that it shows, a legitimate state would have a privilege to enact and
enforce laws restricting owners’ use of land, such as zoning laws, laws
regulating the exploitation of mineral resources, laws restricting danger-
ous activities in populated areas, and so on. Indeed, John Rawls has
argued that the state ought to protect its territory and its resources for
future generations, and doing so plausibly requires it to regulate uses of
land.33 If we combine this argument with the preceding argument for
private property the result supports the idea that there ought to be rights
of private property that are restricted by the privilege of the state to
oversee how its territory is cared for. It seems plausible, then, that a
legitimate state would have a privilege to construct a law of property
that gives owners only a restricted set of rights regarding the use of their
land.
The third respect in which states are territorial is that they purport to
have the right to control movement across their borders. Would legiti-
mate states have any such right? Would the borders of a legitimate state
have a moral significance of this kind? It is widely assumed that people
who have no legal claim to be in the territory of a state have no moral
Frankel Paul, Property Rights and Eminent Domain (New Brunswick, N.J.: Transaction
Books, i987), pp. 224-39.
32. The argument is well presentcd in Schmidtz, The Limits ofGovernment,pp. 15-32.
33. John Rawls, “The Law of Peoples,” in Stephen Shute and Susan Hurley, eds., On
Human Rights: The Oxford Amnesty Lectures, 1993, (New York: Basic Books, i993),p. 57.
24 Philosophy C Public Affairs
claim either. This is almost certainly false, but it is quite unclear what
rights people do have in this area. Does any interesting category of non-
resident noncitizens have a claim to move into the territory of a legiti-
mate state and establish a home there? Does a legitimate state have the
privilege to control immigration and movement across its borders?
These questions raise deep issues about global economic justice.
Some countries are extraordinarily wealthy while others are extraordi-
narily poor. Most of the people living in a poor country may be disad-
vantaged in their life prospects by comparison with most of the people
living in a rich country. The full explanation of this inequality would be
complex, but, at least to some extent, it is due to the unequal distribu-
tion of resources around the world. To the extent that we think the rela-
tive wealth of countries is a function of what, morally speaking, counts
as merely good luck, we may think that countries do not deserve their
wealth. And to the extent that we think this, we may think that justice
requires a redistribution of wealth among the countries of the world.
The philosophical literature on distributive justice has been dominated
by disputes about redistribution within countries,34 yet if justice can
require redistribution within the populations of countries, it may well
require redistribution within the world population. It may well be that
the reasons that support redistribution within societies also support
global redistribution.
This discussion is relevant to our question about the moral signifi-
cance of borders because, at least arguably, the enforcement of borders
contributes to global inequality. Some might argue on this basis that all
borders ought to be opened to all people. Even if this is correct, how-
ever, it does not follow that legitimate states would have no privilege to
control access to their territory or to restrict immigration, A privilege to
do something is the absence of a claim on the part of others that one not
do that thing. It is the absence of an obligation owed to those others that
one not do that thing. Perhaps, then, even though a better-off country
ought to admit the poor, the poor have no claim against the better-off
countries that they be admitted. If so, then a wealthy state would have
the privilege to exclude the poor from less well-off countries even if it
34. But see Kai Nielsen, “World Government, Security, and Global Justice,”in Steven
Luper-Foy,ed., Problems of InternationalJustice (Boulder, Colo.: Westview, 1g88), Thomas
Pogge, “Cosmopolitanismand Sovereignty,”Ethics 103 (1992):48-75, and Rawls, “The Law
of Peoples.”
ought not to exclude them all things considered. In the grizzly bear ex-
ample, I have the privilege to lock my door against you even though, all
things considered, I ought not to do so. In a similar way, states might
have the privilege to control access to their territories even if they ought
to have open borders in the interest of contributing to global equality.
Moreover, there are at least two other views one might have about the
impact of global economic injustice on the rights of legitimate states to
enforce their borders, both of which are compatible with the idea that
states have a privilege to control movement across their borders. First,
perhaps global inequality underwrites a claim on the part of people who
are not able to have decent lives in their own countries to move to a
better-off country. Even if so, it may be that a state, even if it is wealthy,
has the privilege to exclude people who are able to have decent lives in
their own countries. It would simply be that some of the poor have a
claim to live in its territory. Second, it may be that a wealthy state has
the privilege to exclude the poor from less well-off states, and does no
wrong in excluding them, as long as it contributes in an appropriate way
to a just scheme for the global redistribution of wealth. This last view,
of course, allows for an interpretation on which justice does not require
global redistribution as well as an interpretation on which it does. The
important point here is that each of these views is compatible with the
thesis that legitimate states have a privilege to exclude a broad category
of nonresident noncitizens from their territory. Hence, the idea that le-
gitimate states would have such a right is compatible with the idea that
justice requires redistribution in the interest of global equality.
In any event, the issue here is what the legitimacy of a state would
consist in, and I think that a legitimate state would have a privilege to
control access to its territory across its borders. For I think that our
notion of a state is of a thing that governs a bounded territory and that
does at least purport to have the privilege to control access to its terri-
tory.35 But the idea of a privilege to control access to territory is puzzling.
In enforcing its borders, a state restricts the movement of people who
are not residents of its territory, and it is puzzling how a state could have
'
a right to enforce laws against nonresidents who, presumably, stand in
no special relation to it. If the residents of a state had all consented to
35. It does not follow that there could not be a single global state. what follows is that
such a state, if it were legitimate, would have a privilege to control access to Earth on the
part of any extraterrestrials.
obey the law, then, arguably, there would be no problem about the au-
thority of the state to enforce its law against them. Yet foreigners may
be imprisoned or deported if they attempt to enter a state’s territory
illegally, and it obviously would be a very unusual foreigner who had
consented to obey the law of a state in which he does not even reside.
For that matter, it is a rare citizen who has consented to obey the law,
so perhaps the puzzle about the state’s right to enforce borders against
nonresidents is no different at bottom from the puzzle the state’s right
to enforce the laws against its citizens. In any event, these issues are
about the grounding of a state’s legitimacy, not about what the legiti-
macy of a state would consist in. At this point, I am only concerned with
what legitimacy would consist in, and my claim is that a legitimate state
would have a privilege to control movement across its borders. I have
not attempted to defend a precise specification of this privilege.
(3) Sovereignty: The Right to Noninterference

The final aspect of the right to rule is the state’s moral relation to other
states. A legitimate state’s sphere of privilege, as so far defined, is pre-
sumably a sphere within which it could govern without violating any
claim of another state since other states have no claim to legislate with
respect to its territory or people. Plausibly, too, a legitimate state would
have a claim against other states that they not interfere with its govern-
ing within this sphere of privilege. This means that it would have a claim
that it not be interfered with in governing its residents and territory. A
legitimate state therefore does not merely have a privilege to govern its
territory; it has a “protected privilege,”a privilege that is protected from
interference by the pro tunto obligation of other states not to interfere.
For similar reasons, it is plausible to attribute to a legitimate state an
immunity to having any of its rights extinguished by any action of any
other state, or, for that matter, by any person. If its rights could simply
be extinguished, they would provide no moral protection. For example,
if its claim to noninterference could be extinguished by another state,
it would not be a significant barrier to interference. A claim against
other states that they not interfere corresponds to their obligation that
they not interfere, and they cannot excuse themselves at will from such
an obligation. Moral agents have no power to extinguish their obliga-
tions nor therefore do they have a power to extinguish claims held
against them by others. So I think that an immunity to extinction of the
cluster of Hohfeldian rights that compose the right to rule is as plausible

as the other rights in the ~luster.3~
I should note, however, that there are important exceptions to the
immunity of legitimate states. Other states do not have the moral power
to extinguish a state’s right to rule, nor do any individuals. Yet if the
moral citizens of a legitimate state voted unanimously in a referendum
to abolish the constitution, then, with certain provisos, I think they
would thereby strip the state of its right to rule. Indeed, I think that if an
overwhelming majority voted this way in a referendum, the result would
be the same. With certain provisos, which I will explain below, the state
would no longer be legitimate. So I do not want to say that a legitimate
state is immune to losing its right to rule.
The moral sovereignty of a legitimate state is its immunity to having
its right to rule extinguished by any other state plus its claim against
other states that they not interfere with its governing its residents and
territory. It is perhaps worth adding that a legitimate state presumably
also has the moral power to modify and perhaps to extinguish certain
of its own rights. For example, the members of the European Union
have altered by treaty their privileges to control movements across their
borders.37
(4) The Right to Rule-Summary

Let me bring these ideas together. I have used the varieties of
Hohfeldian rights to explain the idea of a legitimate state. I call the terri-
tory in which a state has positivistic jurisdiction, “its territory,” and the
residents of the state’s territory, “its residents.” I propose that the legit-
imacy of a state would consist in its having roughly the following cluster
of Hohfeldian “advantages”: (1) a sphere within which it has a privilege
to enact and enforce laws applying to the residents of its territory; (2) a
power to put people residing in its territory under a pro tanto duty to do
something simply by enacting a law that requires them to do that thing,
provided that the law falls within its sphere of privilege and is otherwise
36. To say that a legitimate state would have an immunity-relative to other states and
relative to individuals-against losing its right to rule i s to say that no individual and no
other state has the moral power to strip it of its right to rule. The drug smugglers destroyed
Exemplar, and thereby put an end to the period of time in which it had the right to rule,
but they had no moral power to strip Exemplar of its right to rule. To destroy a state is not
to exercise a moral power.
37. I owe this point to Dan Haussman, in discussion.
morally innocent; (3) a privilege to control access to its territory by peo-

ple who are not residents and have no moral claim to live or travel there;
(4) a claim against other states that they not interfere with its governing
its territory; (5) an immunity to having any of these rights extinguished
by any action of any other state or person.
All of the claims and privileges of a legitimate state are defeasible; they
are not absolute. And the power of a legitimate state is merely to put its
subjects under pro tanto duties. No other state can extinguish these
rights, but in cases of extreme injustice or violations of human rights, it
is plausible to think that a state would forfeit its legitimacy. In less ex-
treme cases of injustice, however, a state might retain its legitimacy even
though, because of the injustice, its subjects have no duty to obey any
but the most benign laws, such as laws against force and fraud or traffic
laws. And other states might even have a duty, all things considered, to
interfere with its internal affairs in order to protect human rights. The
state might still be legitimate, but its legitimacy would not protect it
from efforts by the international community to ensure that its people
are treated j~stly.3~
This, then, is my account of what the legitimacy of a state would con-
sist in. I agree with the traditional view that a legitimate state would have
a “right to rule,” and I agree that the traditional view is on the right track
in thinking that the subjects of a legitimate state would be morally re-
quired to obey the law. But both more and less than this is involved in
legitimacy. A legitimate state has a power to put its subjects under du-
ties, but only if it legislates within its sphere of privilege. A legitimate
state has such a sphere of privilege. There are laws it can enact and
enforce without violating any claims. Legitimacy includes as well privi-
leges regarding territory and a right to noninterference. There are two
parts to the traditional view, however. The first part is the traditional
account of what the legitimacy of a state would consist in; the second
part is the thesis that the legitimacy of a state must be grounded in its
38. John Rawls has recently argued that to be a “member in good standing” of a “just
political society of peoples,” a state must respect human rights, among other things. My
view in effect allows that a state might be legitimate even if it is not a member in good
standing in Rawls’s sense. Rawls says that a state that is “legitimate” in his sense cannot
rightly be interfered with or even criticized in public by a liberal state. I am developing a
weaker notion of legitimacy. A state that is legitimate in my sense has a pro tanto claim
not to be interfered with, but this claim can be overridden. See Rawls, “The Law of Peo-
ples,” pp. 71, 78.
subjects’ consent. My own account of legitimacy will remain incom-

plete until I provide a story about the circumstances under which a state
would have the cluster of Hohfeldian advantages that, as I have claimed,
would constitute it as legitimate. Of course, for all that I have shown, it
might be that no states are legitimate. Indeed, the problem of avoiding
this anarchistic conclusion might seem more difficult on my view than
on the traditional view. For on my view, a legitimate state possesses a
complex family of Hohfeldian advantages, which includes powers, priv-
ileges, and immunities, rather than merely possessing the right to be
obeyed. I do not believe that anarchism is the correct view, however, so
I need to explain how it could be that a state is legitimate. Let me there-
fore turn to this problem. Under what circumstances would a state be
legitimate?
V. “LIBERALLEGITIMACY”
AND CONSENT
On the traditional view, as we saw, consent is required for legitimacy

because consent is needed in order to ground an obligation to obey the
law. To some thinkers, however, consent may seem to be necessary
quite independently of issues about an obligation to obey the law. For
suppose we think that people have claim-rights that forbid interference
with their morally innocent choices unless they themselves have agreed
to the interference. And suppose we think that a right-holder is the only
person with the moral power to authorize infringements of what would
otherwise be her moral territory. We might conclude from these ideas
that the state’s coercion of its subjects is not morally permissible unless
the state has secured their consent. Unfortunately, as we saw, it is un-
likely that any but a few citizens in special circumstances have con-
sented to be bound by the laws enacted by their state. Some may ac-
cordingly be led to embrace the anarchist view that (virtually) no state
is morally legitimate. Others, however, have been led to seek a view that
gives due recognition to the idea of the person’s prerogative but without
requiring actual consent as a condition of legitimacy.
Thomas Nagel says, “Liberalism . . . holds that the legitimate exercise
of political power must be justified o n . . . grounds which belong in some
sense to a common or public domain.”39 If such grounds exist, then
39. Thomas Nagel, Equality andPurtiuZity (New York Oxford University Press, iygi), p. 158.
anyone could in principle accept the coercion of the state on the basis
of this publicly available justification. The subjects could and presuma-
bly would accept the rule of law if they were reasonable and if they were
also informed of the publicly available justification for it. The idea is not
that the legitimacy of the state rests on a kind of consent. It is rather that
a state’s exercises of coercive power are legitimate only if they are ac-
ceptable under a system that, in Nagel’s words, can be justified on
grounds that it would be “unreasonable to reject.”4O A justification it
would be unreasonable to reject belongs to a common domain because
everyone is expected to be reasonable.
John Rawls has proposed a similar principle, which he calls the “lib-
eral principle of legitimacy.” According to this principle, “our exercise
of political power is . . . justifiable only when it is exercised in accor-
dance with a constitution the essentials of which all citizens may rea-
sonably be expected to endorse in the light of principles and ideals ac-
ceptable to them as reasonable and rational.”4lThis Rawlsian principle
is different from Nagel’s in a subtle way, for there might be an arrange-
ment that it would be unreasonable to reject, but that not everyone can
reasonably be expected to endorse since reasonable people would be
neutral about it. Perhaps the Australian law that requires everyone to
vote is an example of such an arrangement. The Rawlsian and Nagelian
principles are therefore not identical even if they are t ~ i n s . 4 ~
These two principles are best viewed as proposals regarding the cir-
cumstances under which a state would be legitimate rather than as ac-
counts of what the legitimacy of a state would consist in. The view is that
a state is legitimate only if its constitution meets a certain test, Nagel’s
“unreasonable-to-reject” test, or Rawls’s “reasonable-to-endorse” test.
Both of these tests leave open the nature of the property of legitimacy
40. Ibid., pp. 161, 163. Nagel is here following ideas first proposed by T. M. Scanlon in
“Contractualism and Utilitarianism,” in Amartya Sen and Bernard Williams, eds., Utilitar-
ianism and Beyond (Cambridge: Cambridge University Press, 1982), pp. 103-28.
41. John Rawls, Political Liberalism (New York Columbia University Press, igg3), p. 137.
42. The difference between the “no-one could reasonably reject” test and the “everyone
could reasonably endorse” test was first explained by T. M. Scanlon. See his “Contractual-
ism and Utilitarianism,” p. 111. A full exposition of these tests is beyond the scope of this
paper. For present purposes, I assume an intuitive notion of the reasonable person. I take
the Rawlsian test of an arrangement to be whether any reasonable person would endorse
it, and I take Nagel’s test to be whether no reasonable person could object to it (or to any
ground that might be proposed to justify it). If reasonable people would be neutral about
an arrangement, then it passes Nagel’s test but it fails Rawls’s test. So the tests are not
equivalent.
that a state allegedly lacks unless its constitution meets the test. One
could, for example, combine the unreasonable-to-reject test with my
Hohfeldian account of what legitimacy would consist in.
Unfortunately, neither of these tests is successful. Neither test is suffi-
cient to establish the legitimacy of a state, nor are both tests taken to-
gether sufficient to establish this. For even if it would be unreasonable
to reject a state’s constitution, and even if all reasonable citizens may be
expected to endorse it, it does not follow that the state is legitimate. It
does not follow, for example, that the citizens have a pro tanto duty to
obey morally innocent laws. Moreover, a state might be legitimate even
if its constitution passes neither test. The constitution of Britain pre-
sumably would pass neither test, for example, for it would not be unrea-
sonable to reject the monarchy and the House of Lords, nor can we
reasonably expect all reasonable citizens to endorse the monarchy and
the House of Lords. Nevertheless, I believe that Britain is a legitimate
state if any is. These tests for legitimacy are therefore quite unsuccessful.
I certainly agree with Nagel’s remark that “the legitimate exercise of
political power must be justified on . . . grounds which belong in some
sense to a common or public domain.” But this still leaves us with the
task of finding the needed justification.
m.HISTORYAND PERFORMANCE
We have now seen that unless we can accept the anarchical conclusion
that virtually no state is legitimate, we must reject the idea that consent
of the governed is necessary for the legitimacy of a state. We must also
reject the idea that the legitimacy of a state is settled by the moral cre-
dentials it establishes at its origin. Virtually every state owes its existence
to some combination of events that includes a share of force or fraud.
Because of this, reasoning similar to the reasoning that led us to con-
clude that the rogue state in the Coup Example is illegitimate might
force us to conclude that virtually no state is legitimate. Since I do not
believe that this conclusion would be correct, I need to deny that the
legitimacy of a state is settled by the process by which it came to exist,
or by its “pedigree.”43
43. The view that the legitimacy of a state is determined by the manner in which it came
to exist is an example of a position David Schmidtz calls, “emergentism.” Emergentism
posits “constraints on the process by which the state comes to be,” and it holds that the
justification of the state depends on whether its history meets the constraints. David
There are independent reasons to deny this. For suppose that the
grandchildren of the smugglers who established the rogue state in the
Coup Example gradually modify the constitution to introduce democ-
racy and civil rights for all. It is plausible that the rogue state could in
this way become as legitimate as Exemplar was before the coup, espe-
cially given that Exemplar itself most likely came to exist in a way that
was unsavory to some degree or other. Or consider an example in which
a state that begins by being legitimate is taken over behind the scenes
by a gang who, unlike the gang in the original Coup Example, retain the
existing constitution but pervert it to their own ends. It would be plausi-
ble to conclude that the state in this case is no longer legitimate, despite
the fact that it began by being legitimate. These two examples suggest
that legitimate states can lose their legitimacy and that illegitimate
states can acquire legitimacy States can become morally rehabilitated
just as they can be morally perverted.
As an alternate to the pedigree view, one might suggest a consequen-
tialist view according to which the legitimacy of a state is determined by
how well it serves the goals of its citizens by comparison with how well
their goals would otherwise be served.44 There are two variants of this
view. One postdates a threshold of efficiency such that a state that sur-
passes the threshold is legitimate. The other, a maximizing view, holds
that a state is legitimate just in case it is more efficient than any available
alternative. Neither variant is plausible. Suppose that the rogue state
serves the goals of its residents just as well as did the former state of
Exemplar. Then on either the threshold view or the maximizing view,
the rogue state would be just as legitimate as Exemplar. But our intuition
is that although Exemplar was legitimate, the rogue state at least initially
was not. To have the right to rule is to have a moral property importantly
different from that of being efficient in ruling, which is (roughly) the
property at issue in these consequentialist views. How could efficiency
give the rogue state the right to rule? Many things that we are good at
doing we have no right to do.
There is a fundamental problem with attempts to ground the legiti-
macy of states in facts about their performance. What we need to
Schmidtz, “Justifying the State,” Ethics 101 (1990):90-91, and Schmidtz, The Limits of Gov-
ernment,p.3.
44. Schmidtz speaks of the “teleological justification” of the state. Schmidtz, “lustifying
the State,” pp. 90-91. See also, Schmidtz, The Limits of Government, p.3.
ground is a state’s possession of the complex cluster of Hohfeldian

rights that would constitute its legitimacy. States that efficiently serve
the goals of their citizens might deserve our support, or they might meet
some minimal condition for deserving support, but this is a different
matter from having the Hohfeldian cluster of rights that constitutes the
right to rule.45 This point seems to undermine not only arguments from
efficiency as such, but also arguments that turn on the special ability of
states to provide public goods.
The basic idea of “public goods” justifications of the state is found in
the following famous passage from Hume’s Treatise. Hume says:
bridges are built; harbours open’d; ramparts raid’d; canals form’d;
fleets equip’d; and armies disciplin’d; every where, by the care of gov-
ernment, which, tho’ compos’d of men subject to all human infirmi-
ties, becomes, by one of the finest and most subtle inventions imagin-
able, a composition, that is, in some measure, exempted from all
these infirmities.46
Michael Taylor says, “The most persuasive justification of the state is
founded on the argument that, without it, people would not successfully
cooperate in realizing their common interests and in particular would
not provide themselves with certain public goods.”47 The argument is
intended to justify the state, in the sense of showing that the state is
permitted to tax people coercively in order to produce public goods,
whether or not people have explicitly consented, on the basis that it is
in people’s interest to have these goods provided. As such, it is intended
to support the legitimacy of states by supporting the permissibility of
coercive taxation. The problem, as David Schmidtz has pointed out, is
that people benefit in different ways and to different degrees from the
public goods that are provided, and there are even some people who
appear not to benefit at all, at least in their own opinion. Native people
living in northern Canada, for example, might prefer to be left alone to
45. A. John Simmons makes essentially the same point. He argues that while a legiti-
mate state would have the right to our support, a justified state might have no such right
even if it deserved our support. Simmons, Moral Principles and Political Obligations, pp.
198-99. See also A. John Simmons, “Justificationand Legitimacy,” Ethics 110 (1999).
46. David Hume, A Treatise of Human Nature, L. Selby-Bigge, ed. (Oxford: Clarendon
Press, 1978 [173g-40]), p. 539. Quoted by Schmidtz, The Limits of Government, p. 10.
47. Michael Taylor, The Possibility of Cooperation (New York Cambridge University
Press, 1987), p. 1. Quoted by Schmidtz, The Limits of Government, p. 2.
34 Philosophy G Public Afsairs
hunt and trap as did their ancestors. That is, the argument is not persua-
sive, even in its own terms, because not every member of the state ben-
efits sufficiently from the provision of public goods.@
There is a deeper problem as well. For even if everyone did benefit
from the state’sprovision of public goods, this fact would not underwrite
a general power on the part of the state to put its members under a duty
merely by passing a morally innocent law. It also would not underwrite
the sovereignty of the state in the form of a prohibition on interference
with its governing its people. The argument sees the state as analogous
to a community garbage collector who establishes a service from which
all benefit, and then comes to ask for payment. Having benefited, per-
haps I ought to pay, but it seems in such a case that I have the right to
refuse to pay, or at least that I have the right to eschew the benefit in the
future. Perhaps it would be foolish on my part to refuse the benefit in the
future if the price is right. Perhaps, if the benefit is a true public good, I
will be unable to refuse it. But I don’t see that I would be wrong to refuse
to pay on the basis that I would have liked to refuse the benefit. It is
doubtful, therefore, that the argument even underwrites a duty in fair-
ness to do one’s part in the provision of beneficial public goods. But even
if it does underwrite such a duty, the legitimacy of the state involves more
than simply a duty of this sort on the part of its subjects.
The most important public good provided by a state is surely the rule
of law, which, ideally at least, supports our security and protects us in
our basic moral rights. Protection of our basic rights is a moral good. In
addition, if there are certain duties that our society has, such as a duty
to ensure that its members are able at least to meet their basic needs,
then a state that fulfills such duties on behalf of the society promotes a
moral good. The good in question here is justice, broadly construed.
Insofar as we have a duty to support just institutions, and to support the
establishment of justice, we presumably then have a duty to support a
just state. The question is whether states that were just in all respects
other than being legitimate would necessarily also be legitimate.49 The
48. See Schmidtz, The Limits of Government,esp. pp. 81-85.
49. As I said earlier,legitimate states presumably are just at least in that respect, for they
have the right to rule. And illegitimatestates are unjust in one respect since they do certain
things that they have no right to do. In what follows, I ignore this point and simply speak
of states that are “just”when I mean to refer to states that are just (at least) in all respects
other than being legitimate. Tho paragraphs ahead, when I discuss “unjust” states, I mean
to refer to states that exemplify injustices other than being illegitimate.
argument from moral public goods does go some way toward support-
ing an affirmative answer to this question, but I want to press two
objections.
First, the argument does not suffice to show that (otherwise) just
states have the full panoply of Hohfeldian rights that constitute legiti-
macy. It does support the proposition that we have a duty to obey laws
that are essential to the recognition of human rights, or that are consti-
tutive of a state’s program to establish justice, such as its scheme of
redistributive taxation. But a legitimate state would have a broad power
to put its citizens under a duty to obey morally innocent law, and the
argument does not show that a just state would have this power. The
argument does not show, for instance, that citizens of a just state have
a duty to pay the sewer and garbage collection tax, or to get a proper
business license before selling books on the street corner, assuming that
these things are required by law. The argument also does not support
the right, even of (otherwise) just states, to govern their people and ter-
ritory without interference. Perhaps a neighboring state would do just
as well as our state at serving justice. In that case, the argument appears
to provide no reason why the neighboring state would be wrong to take
over the job. The moral public goods argument provides no account of
sovereignty.
Second, the moral public goods argument does not provide any sup-
port for the legitimacy of (otherwise) unjust states. But I think that even
an unjust state might be legitimate. I agree of course that no one had any
duty to obey the morally bankrupt laws of Nazi Germany, and no one
had any duty to obey the fugitive slave laws that figured as law in the
United States before the Civil War. These were unjust laws in unjust
states. Yet I believe that people did have a duty even in these states to
obey morally innocent law, such as laws against murder and rape, theft
from the mails, smuggling, and so on. And these states had the right to
enforce such laws. In saying this, I do not mean to restrict attention to
laws which require actions that would be morally required in the ab-
sence of law, such as murder and rape. For I think that citizens have a
duty to obey other kinds of laws as well, even in a state that is deeply
unjust. They have a duty, for example, to obey laws requiring them to
have a driver’s license before driving a car, and laws requiring them to
buy a ticket before riding the subway. Of course, the duty to obey mor-
ally innocent law is merely pro tunto. If disobedience to law can help to
36 Philosophy C Public Affairs
support the establishment of justice, by drawing attention to injustice,

for instance, or by demonstrating the serious commitment of those who
believe there is injustice and want to see it corrected, then such disobe-
dience might well be justified, all things considered. I do not mean to
say that people in unjust states ought all things considered to obey the
law and go about their business as if their states were perfectly just. But
I do think that civil disobedience needs a serious justification because
it typically involves the violation of morally innocent law, such as prohi-
bitions on parading in the streets without a permit, and we have a duty
to obey morally innocent law. The view that unjust states can be legiti-
mate can help to explain why civil disobedience needs a serious justifi-
cation even in an unjust ~ t a t e . 5 ~
I think, therefore, that arguments from efficiency or from public
goods, even from moral public goods, are not fully adequate accounts
of the circumstances under which a state would be legitimate. Perform-
ance-based arguments of these kinds are unsuccessful. I argued before
that arguments from consent, or from historical pedigree, also are un-
successful. I would now like to suggest a new way to think of the state
and its rights.
VII. THESOCIETAL
NEEDSARGUMENT
I have argued elsewhere for a moral theory that I call the “society-cen-
tered theory of moral justification.” According to this theory, morality
is at bottom a system of norms or “standards” that are justified to the
50. It appears that David Lyons would disagree with me about this, for Lyons writes that
it is a “serious moral error” to suppose that civil disobedience or political resistance “re-
quires moral justification even in settings that are morally comparable to Jim Crow.” See
David Lyons, “Moral Judgment, Historical Reality, and Civil Disobedience,” PMompby 0
Public Afluirs 27, no. I (winter 1998): 39. But Lyons is assuming that if civil disobedience
required justification there would have to be a moral obligation to obey “both just and
unjust laws” (p. 34). I agree with him that there is no such obligation. There is no moral
duty (deriving from the legitimacy of a state) to obey unjust law. But I think that civil
disobedience requires justification because there is a presumption in a legitimate state in
favor of obedience to just law and because civil disobedience involves disobedience to
law. If this is correct, then to justify civil disobedience to a given law of a legitimate state,
we would need to show either that the law is itself unjust, or that, even though the law is
not unjust, disobeying it is justified all things considered. Perhaps disobedience can be
justified as a way of expressing one’s dissent, or perhaps it can be justified as the only
available way to promote justice. But it needs justification, assuming that the state is legit-
imate.
extent that their currency in society enables society to get along, and to
meet its basic needs. The underlying intuition can be expressed as fol-
lows: We live in societies, and we need to live in societies. We order our
lives partly on the basis of standards that we share, where the fact that
we share them facilitates beneficial cooperation and coordination
among us. To the extent that these standards actually function as well
as can be to make things go well in society, they are justified, and corre-
sponding moral judgments are true. This is the central idea.sl It can
helpfully be viewed as a kind of ideal moral code consequentialism.
Such a view obviously raises many questions, and, equally obviously, I
cannot hope to answer them here. My goal here is merely to explain how
the issue of the legitimacy of the state can be handled within this frame-
work.
To explain my approach, I need to introduce the idea of a society. In
the relevant sense, the populations of states are typically societies, so
there is a French society. There is also a French-speaking society in
Qu6bec. A society is a population comparable in size and in social and
economic complexity to the population of a state. A society has a multi-
generational history. It is characterized by a relatively self-contained
network of social relationships, such as relationships of family, friend-
ship, and commerce, and by norms of cooperation and coordination
that are salient to its members. It is comprehensive of the entire popula-
tion of permanent residents of a relevant territory, with the exception of
recent arrivals who may not yet fit into the group’s network of social
relationships. It would perhaps be best to think of society-hood as a
matter of degree. Perhaps the Cree living in northern Qu6bec are rather
small in number to constitute a society, and perhaps their community
does not have the economic complexity of the populations of typical
modern states, but it qualifies strongly on the other dimensions and
therefore is a society, we could say, “to a non-trivial degree.” A society
is, roughly speaking, a multigenerational temporally extended popula-
tion of persons embracing a relatively closed network of social relation-
ships, and limited by the widest boundary of a distinctive system of
instrumental interaction.5’
Many societies are to some extent the product of the division of the
51. See David Copp, Morahy, Norrnativity, and Society (New York: Oxford University
Press, 1995).
52. For a fuller account of the concept of a society, see ibid., chapter 7.
world into states, and in virtually every case where a state governs a
population, that population constitutes a society. For example, the pop-
ulations of Canada and the United States each qualify as a society, but
this would not have been the case if there had only been one state in the
territory now occupied by Canada and the United States. The example
illustrates the fact that the formation of a state can lead to the existence
of social fault lines between its population and the populations of its
neighbors such that its population comes to qualify as a society even if
it would not otherwise have so qualified. In other cases, however, I think
that social fault lines between societies do not parallel political borders.
I believe, for example, that there is a French-speaking society in Qukbec
and a Cree society in northern Qukbec, and these societies have a social
reality that is not dependent on their having states all to themselves.
This example illustrates that societies can be nested. Qukb6cois society
is nested within Canadian society.
The idea of society-centered theory is that societies need to have
shared moral norms, and that a society’s basic needs can better be
served by the currency of some such norms than the currency of others.
A society’s needs can be classified as needs for “physical integrity,” in-
cluding the continued existence of the multigenerational population
that it is, needs for “cooperative integrity,”including internal social har-
mony, and needs for peaceful and cooperative relationships with neigh-
boring societies.53 The question of how best to promote societal needs
clearly depends on empirical matters, and this means that the moral
implications of the society-centered theory are both contingent and
somewhat speculative. I think we can see nevertheless, at least in broad
outlines, the kinds of considerations that would support the legitimacy
of a state.
To begin, I think it is clear enough that a society that is organized into
a state, or that is at least included in a state, will tend to do better at
satisfying its basic needs than it otherwise could expect to do. This
seems to be true at least of societies at the present time in our world.
This is the basic justification of the state.54After all, a state is essentially
53. I explain the idea of a basic need in ibid. I discuss the basic needs of societies at pp.
192-94.
54. I need to make two qualifications. (1) Some large societies are the sums of smaller
societies, which are themselves organized into states. For example, European society is
the sum of the societies in France, Germany, and so on. I do not think that such societies
the administrative apparatus of a legal system. To think that societies

could do better at meeting their needs in the absence of states, one
would have to think that societies could do better in the absence of law.
This is certainly dubious.
Moreover, a society will tend to do better than it otherwise would if
the state into which it is organized legislates in morally innocent ways.
Morally innocent law is just law, and it is within the state’s sphere of
privilege. According to the society-centered theory, injustice and moral
permission are ultimately to be understood in terms of standards justi-
fied by the fact that their currency would promote a society’s ability to
meet its needs. Morally innocent law will tend to serve society’s needs
better than law that is morally noninnocent.
In order for a state to further the satisfaction of societal needs by
means of law, the law must obviously be obeyed with sufficient likeli-
hood. Moreover, in most circumstances, laws must be enforced in order
to ensure a sufficient likelihood that they will be obeyed. This is the
basic justification of a standard permitting the state to enforce morally
innocent law. But it is a familiar point that the expense of sanctions and
of enforcement could be avoided if people obeyed voluntarily, as a mat-
ter of their subscribing to a moral standard that required them to obey.
The advantage of voluntary compliance with the state’s arrangements
to realize society’s needs is the basic justification of a moral standard
requiring citizens to obey the law, at least in cases where the law is mor-
ally innocent. It underwrites a Hohfeldian power, on the part of legiti-
mate states, to put their residents under a pro tanto duty to do some-
thing by enacting morally innocent law.55
need to be organized into states. I doubt that European society has a need for a European
state, although it likely benefits from the organization provided by the European union.
Let me say that any society that is organized into a state will d o better at satisfying its needs
than it otherwise would unless it divides into parts each of which is itself a society organ-
ized by a state. (2) It may be true, as Christopher Morris suggests, that in certain periods
of history there were forms of social organization that better served the needs of societies
than states would have done. If so, my justification of the state in terms of societal needs
is restricted to a certain range of historical circumstances. See Morris, An Essay on the
Modern State.
55. It might be more plausible to postulate a power to put citizens under a pro tunto
duty by creating morally innocent law and threatening to punish violations of it, rather
than merely to penalize violations of it. This amendment would respond to the objection
I discussed before that it would be implausible to suppose I violate a moral duty when I
exceed the speed limit by a trivial amount on a deserted highway.
40 Philosophy G Public Anairs
My argument responds to many of the intuitions that drive the argu-

ment from efficiency and the public goods argument. The key to it is the
society-centered theory of moral justification, which provides a bridge
between facts about the performance of the state and the moral creden-
tials of the state, thereby overcoming what I called before the “funda-
mental problem” facing attempts to ground the legitimacy of states in
facts about their performance. The state is justified, in my view, if the
society as a whole benefits from what it does. And what is thereby justi-
fied more specifically is a standard that requires our obedience to mor-
ally innocent law, as well as standards that permit the enforcement of
morally innocent law and that underwrite the other moral aspects of
legitimacy, as I will go on to argue.
According to the society-centered theory, any claims possessed by
persons or by states must ultimately be justified on the basis of societal
needs. You have a claim just in case some other person has a corre-
sponding obligation; the other person has such an obligation only if a
moral standard that requires her to act in the appropriate way in dealing
with you is justified on the basis that its currency in the society would
promote the society’s ability to meet its needs. Now although I cannot
attempt to make the argument here, I think that people do have claims
of various kinds, including the civil liberties.S6Yet if it is true that socie-
ties need to be organized into states, then any claims that exist and that
constrain the privileges of the state are tailored to ensure that the state
retains the ability to enact and enforce law, compliance with which will
promote the society’s ability to meet its needs. Hence, people do not
have claims that prevent the state from serving societal needs.
Property rights are similar to the other rights people have in the re-
spect I have just explained. That is, property rights are restricted in a
way that gives the state the privilege to control the use of land within its
territory, provided that by exercising such control, the state can serve
the needs of the society. Given certain empirical assumptions, the argu-
ment supports institutions of private property. It is at least arguable that
private ownership gives people incentives to make productive use of
property just as a state’s privilege to oversee people’s use of their prop-
erty gives it a stake in the long-term protection of its territory and re-
sources.
56. See Copp, Morality, Normativity, and Society, chapter 10.

This brings us to the thesis that a legitimate state would have a (qual-
ified) privilege to control access to its territory. The simplest argument
for this thesis turns on the fact that at least some of the projects that a
state undertakes in order to serve the needs of society might not be
successful without some restriction on the entry of people into its terri-
tory For example, a state-operated health care insurance scheme per-
haps could not be financed successfully if anyone at all could enter the
state and gain access to medical care under the scheme. Suppose that
a state were faced with massive immigration on the order of fifty percent
of the population per year. The state would not even be able to house
the new immigrants adequately For reasons such as this, if a state’s
success at serving the needs of society requires it to have programs of
these kinds that are available to all its members, it might need to restrict
access to its territory.
A more interesting and controversial argument turns on the idea of a
“home.” Michael Hardimon has suggested that there is a basic human
need to “be at home” in one’s “social world.”57What is relevant here is
the idea of a “home” as a familiar and comfortable social and physical
environment. If our homeland became less familiar and comfortable to
us as a result of massive immigration, we might feel threatened. We
would feel less “at home,” and we might fear loss of our “way of life.”We
might feel that we do not belong any more in our society, or that we are
alien in our own homeland. If enough people came to feel this way, the
result might be to undermine the society’s internal harmony. Given that
societies need to ensure their internal social harmony, it follows that a
state’s success in serving the needs of society might require it to restrict
immigration. If so, then, leaving aside issues of redistribution, nonresi-
dent noncitizens of a state would not in general have a claim to be per-
mitted to immigrate.
This argument needs to be assessed with care. For one thing, societies
actually tend to benefit from immigration. For another thing, it is all too
easy to exaggerate the impact of immigration policies on a society’s in-
ternal harmony. There is disagreement about immigration in countries
that annually accept relatively large numbers of migrants, but the inter-
57. Michael 0. Hardimon, “The Project of Reconciliation: Hegel’s Social Philosophy,”
Philosophy G Public Aflairs 21, no. 2 (spring 1992): 165-95. JamesW. Nickel, “TheValue of
Cultural Belonging: Expanding Kymlicka’s Theory,” Dialogue 33 (1994). I am grateful to
Klaus Nehring and Mario Pascalev for helpful discussion of related ideas.
42 Philosophy G Public Afsairs
nal harmony of these countries is not seriously threatened by the immi-

gration. The notion of “harmony” is admittedly vague, but if people are
able to work together successfully, and generally to achieve their goals,
then it cannot seriously be maintained that a somewhat increasing de-
gree of cultural diversity in a country is undermining its harmony. Per-
haps it is true, however, that a society’s internal harmony would be un-
dermined by a continuing massive immigration of people who spoke
many different languages and came from many cultures, and who in-
creased a society’s population by, say, fifty percent per year. This
thought suggests that there is a threshold rate of immigration such that
the harmony of a society would be damaged by immigration in excess
of that rate. If so, a state has the privilege to restrict immigration to a
level below the threshold.
In any event, given how controversial immigration policy can be, I
want to stress that the issue I am addressing here is whether states have
the privilege to place any controls on the movement of people across
their borders. The argument shows that a state can have morally legiti-
mate reasons to regulate immigration, but it does not show that borders
may be hermetically sealed.
Why should we think that other states have an obligation not to inter-
fere with a state’s governing its people and its territory? As I said, each
society needs to have peaceful and cooperative relationships with
neighboring societies. A norm prohibiting the state from interfering
with other states would tend to preserve a peaceful relationship be-
tween the corresponding society and its neighbors. Moreover, it is pos-
sible that the entire population on Earth constitutes a society. I believe
that at least the bulk of the Earths population constitutes a society. This
global society’s need to secure internal harmony would be well served
by a norm against interference. It is each state’sjob, as it were, to serve
the needs of the society it governs, subject to its obligation to respect the
rights of its residents and others. Other states have no right to get in-
volved except to assist a society whose government is failing in some
significant way to meet its needs. For these reasons, it is plausible to
attribute to a state a defeasible claim to noninterference by other states.
Finally, a legitimate state would have an immunity to having its right
to rule extinguished by the action of any other state or person. The basis
of the state’s right to rule is that the currency of norms attributing to it
the relevant power, sphere of privilege, and claim to noninterference
contributes to the ability of the society to meet its needs. If other states,
or if persons, had the power to extinguish these rights, they could extin-
guish them without regard to the needs of the society. A norm that ac-
corded such a power to others could not be justified on the basis that
its currency serves the needs of the society.
This completes the societal needs argument. It rests on a debatable
moral theory as well as on contestable empirical claims, including espe-
cially, the claim that societies need to be organized into states. What,
then, should we make of it? I make two claims on its behalf. First, it
illustrates how one could support the thesis that there are legitimate
states, given my Hohfeldian account of legitimacy. It illustrates the com-
plexity of the issues and the kinds of claims that might need to be de-
fended to defend the legitimacy of states. Second, and more controver-
sially, I claim that the argument supports the plausibility of a presump-
tion that states are legitimate. Of course, I claim this because I find soci-
ety-centered theory plausible.
The conclusion of the argument is that there is a presumption that
states are legitimate. The argument did not depend on details that dis-
tinguish one state from another, so if it supports the legitimacy of any
state, it supports the legitimacy of all states. Nevertheless, the case it
makes for the legitimacy of any given state could be undermined by
detailed considerations having to do with how well that state is doing at
furthering the needs of the society that it governs. There must presuma-
bly be a threshold of efficiency at serving societal needs such that states
falling below the threshold are not legitimate. I confess, however, that
I do not know how to specify this threshold except in the following
terms. An existing state is legitimate, other things being equal, unless
the needs of the society it governs are so poorly served by it that either
the society would do better if people viewed themselves as under no
moral duty at all to obey the law, not even in cases where the law is
morally innocent, or the society would do better if other states viewed
themselves as under no moral duty at all not to interfere with the state’s
governing its territory (and so on). Matters would have to be very bad
for a state not to be legitimate, it seems to me. For even if an existing
state is legitimate, if things are bad enough, we might be justified overall
in violating morally innocent laws, and other states might be justified
overall in intervening in the affairs of our state. It is as if we were at sea
in a leaky boat. Unless there is another boat available to which we could
easily move, there are strong considerations in favor of following the

orders of the captain. Even so, if the captain is incompetent and unjust,
we might be justified overall to mutiny, although mutiny would need a
serious justification. Similarly, an extremely unjust state might be illegit-
imate, for it may be that the society’s needs are likely to be best served
if, say, citizens viewed themselves as under no duty at all to obey the
law. But more typically, we are under a pro tanto duty to obey morally
innocent law. Even if the existing state is legitimate, we might be justi-
fied overall in attempting to replace one government with another, even
if by unconstitutional means.
Let me return to the Coup Example to illustrate how this account is
meant to work. The rogue state clearly began by being illegitimate. I
stipulate that the situation was such that, on my account, Exemplar was
legitimate at the time of the coup. This means that the members of the
drug-smuggling cartel had a duty to comply with the law of Exemplar.
This duty was not extinguished by the coup, nor was the obligation of
the rogue state not to interfere with Exemplar. Therefore, it seems, the
rogue state initially had no sphere of privilege within which it could rule
and impose duties on its residents. It was illegitimate, as we were intui-
tively inclined to say, and it continued to be illegitimate as long as Exem-
plar continued to exist “underground”as a viable alternative. With time,
however, and perhaps in a very short time, the rogue state established
de facto control over the territory of Exemplar, and once it had de facto
control, and once Exemplar ceased to exist, it came to be legitimate.
This is because the society that once was ruled by Exemplar came to be
ruled by the rogue state, and once Exemplar ceased to exist, the society’s
needs had to be served by the rogue state, if by any state. Moreover,
once Exemplar ceased to exist, its rights ceased to put barriers in the way
of the rogue state’s having a sphere of privilege. The rogue state there-
fore came to be legitimate.
VIII. CONCLUSION
In summary, I have argued that the legitimacy of a state would consist
in its having a cluster of Hohfeldian rights. First, a legitimate state would
have a sphere of privilege within which to enact and enforce laws apply-
ing to the residents of its territory. Second, a legitimate state would have
the power to put its residents under a pro tanto duty to do something
simply by enacting a law that requires its residents to do that thing,

provided that the law falls within its sphere of privilege and is otherwise
morally innocent. Third, a legitimate state would have the privilege to
control access to its territory by nonresident noncitizens who have no
claim to live or travel there. Fourth, a legitimate state would have a claim
against other states that they not interfere with its governing its terri-
tory. Fifth, a legitimate state would have an immunity to having any of
these rights extinguished by any action of any other state or by any per-
son. A legitimate state’s right to rule has at least these c0mponents.5~
I offered the societal needs argument to show that there is a presump-
tion that states are legitimate. If the argument is successful, it estab-
lishes a justification for moral standards that require people to obey
morally innocent laws of their state, that permit the state to control
access to its territory, and the like. As I said, however, the argument
turns on contestable empirical claims, such as that any society is better
able to meet its needs when it is governed by a state, and when people
voluntarily obey morally innocent law, than would otherwise be the
case. It also turns on a debatable moral theory. So although I claim to
have made a case for the presumption that existing states are legitimate,
I cannot claim to have established it.
It is a sad fact that most states were founded in a way that involved
wrongful exercises of force and fraud. And it is sad as well that many
people, and perhaps most people in the world, live in states that they
would not voluntarily consent to obey. But this does not mean that most
states are illegitimate. It means that most states are unjust, or at least
that they began by being unjust. Yet unjust or not, they are the ships in
which we find ourselves, and we must try to make them just and to make
them serve our needs.
58. It might have some other components. I suggested before, for example, that a state
has the power to modify and perhaps to extinguish certain of its own rights.

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DAVID COPP The Idea of a Legitimate State

Imagine that a drug-smuggling cartel organizes a coup and overthrows

0 iggg by Princeton University Press. Philosophy G Public Afsairs 28, no. 1

moral authority to do the kinds of things involved in governing. In part,

tion. So understood, the state consists in part of a system of offices and

4. Technically my proposal is quite complex. A state is to be modeled as a temporally

sponds to the legal system that is in force in a territory. It governs the

One might suspect that states do not necessarily line up one-to-one

government. In more ordinary situations, changes in the law or in the

11. THE TRADITIONAL

special kind of moral requirement. An obligation is owed to some agent,

ble that the subjects of states have voluntarily committed themselves to

a fundamental right. Since it is not plausible that every state is legiti-

of the state.lg The territorial rights that would be possessed by a legiti-

could be given a plausible explanation on the traditional view.”‘ The

23. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions,Walter Wheeler Cook,

IV. THE RIGHT TO RULE

(1) The Right to Command Persons

26. If a legitimate state would h a w the power to impose a duty on us to do something,

serted highway. I confess that I am not certain how best to respond to

(2) The Right to Control Territory

simply a positivistic jurisdiction. It would have a moral jurisdiction or

(3) Sovereignty: The Right to Noninterference

cluster of Hohfeldian rights that compose the right to rule is as plausible

(4) The Right to Rule-Summary

morally innocent; (3) a privilege to control access to its territory by peo-

subjects’ consent. My own account of legitimacy will remain incom-

On the traditional view, as we saw, consent is required for legitimacy

ground is a state’s possession of the complex cluster of Hohfeldian

support the establishment of justice, by drawing attention to injustice,

the administrative apparatus of a legal system. To think that societies

My argument responds to many of the intuitions that drive the argu-

56. See Copp, Morality, Normativity, and Society, chapter 10.

nal harmony of these countries is not seriously threatened by the immi-

easily move, there are strong considerations in favor of following the

simply by enacting a law that requires its residents to do that thing,

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