Daniel McDermott on fair-play obligations
What is fair-play theory?
H.L.A. Hart offers a classic statement regarding when fair-play obligations arise:
when a number of persons conduct any joint enterprise according to rules and thus restrict their liberty, those who have submitted to these restrictions when required have a right to similar submission from those who have benefitted by their submission. (1984: 185)
The fair-play theory of political obligation explains political obligation as a fair-play obligation, representing the political community as a cooperative enterprise. The benefits citizens gain from this enterprise generate obligations to do their part in ensuring that these benefits can be provided.
A reconstruction of McDermott’s argument
McDermott’s argument can be divided into two parts. Here is the first part:
(1) Assume that there are fair-play obligations.
(2) These obligations cannot arise merely if benefits are received.
(3) If these obligations cannot arise merely if benefits are received, there must be other conditions that need to be met in order for these obligations to arise.
(4) There must be other conditions that need to be met in order for fair-play obligations to arise.
Here is the second part:
(5) In order for a fair play theory of political obligation to be adequate, the theory must specify what these other conditions are and:
(a) there must be a morally relevant difference between these conditions being met and their nor being met, for explaining why there is a fair-play obligation;
(b) if the conditions are met, the provider of the benefits must have a right that something is done in return.
(6) It is impossible for a fair-play theory of political obligation to specify the conditions in a way that fulfils both requirements (a) and (b).
(7) There cannot be an adequate fair-play theory of political obligation.
McDermott justifies premise (2) by appealing to Robert Nozick. Nozick provides examples where benefits are received but it seems wrong to say that the person who receives them has an obligation to do something in return.
With regards to requirement (b) in premise (5), McDermott observes that one can have reason to do something for another person or group, even to the point where it would be morally wrong not to do that thing, without the person or group having a right that you do that thing. He thinks that reasons of gratitude function like this. It may be morally wrong not to show gratitude in some contexts, but gratitude is only possible if the person to whom gratitude is owed lacks a right to its being shown. (This is an implicit case against gratitude theories of political obligation.) McDermott takes it as obvious that an adequate theory of political obligation must, in contrast, leave the state with a right to be obeyed.
McDermott justifies premise (6) by evaluating conditions proposed by actual fair-play theorists. Actual fair-play theorists, as he depicts them, divide into two groups. One group propose the following two conditions for when there is a fair-play obligation: (i) the cooperative enterprise condition; (ii) the voluntary acceptance condition. The other group propose these two conditions: (i) the cooperative enterprise condition; (ii) the public goods condition. I will explain these conditions in the sections below. The terms for conditions (ii) and (iii) are mine.
McDermott argues against appealing to condition (i) when explaining fair-play obligations. For him, this means that fair-play theorists who currently recommend (i) along with some other condition must either recommend (ii) by itself or else (iii) by itself. He argues against these approaches. (Note: McDermott does not consider whether there are other conditions that might plausibly be appealed to, conditions which current fair-play theorists have yet to conceive.)
The cooperative enterprise condition
According to the cooperative enterprise condition, ‘a fair-play obligation is a special species of obligation that is generated only when benefits are provided by just ruled-governed, cooperative enterprises.’ (2004: 219)
McDermott attacks this condition by beginning with examples that appear to support it, adapting them so that they are about individual enterprises, not cooperative ones, and then observing that there is no morally relevant difference for the question of whether there is a fair-play obligation.
One such example, from A. John Simmons, involves some neighbours getting together and digging a well on public land. One person, Jones, refuses to participate in this project or contribute to the maintenance of the well. But once the well is functioning, he sneaks down to it each night and takes some water. Simmons proposes that Jones has an obligation to do his part in maintaining the well, because of the co-operative enterprise condition and another condition, the voluntary acceptance of the benefits. However, McDermott observes that if the well had instead been dug by one person and henceforth maintained by them, the moral situation for Jones would not change, despite the cooperative enterprise condition not being met. So it seems that this condition should not be appealed to at all.
McDermott adapts a different example to challenge those who advocate the cooperative enterprise condition without the voluntary acceptance condition, again observing that if it is an individual enterprise instead, there is no morally relevant difference regarding whether there is a fair-play obligation.
The voluntary acceptance condition
The voluntary acceptance condition is that a fair-play obligation only arises if the benefits are voluntarily accepted. This condition is usually advocated along with the cooperative enterprise condition, but owing to the attack above, McDermott considers it on its own. He thinks that appealing to it is not of value given the eventual aim of explaining political obligation as an instance of a fair-play obligation.
An adequate explanation of political obligation must not just explain why citizens have a reason to obey the state. It must explain this in such a way that the state has a right to obedience. McDermott thinks that the voluntary acceptance condition, on its own, cannot be appealed to in a way that reveals the state to have this right, because voluntary acceptances of benefits often do not leave the provider of benefits with rights of this nature.
One of the examples McDermott gives to support this point involves a group of friends who, without a formal agreement between them, cook dinners for one another. One person, despite being an able cook, eats dinners but never takes his turn to cook. It becomes apparent that he is free-riding. McDermott thinks that he has a reason to reciprocate but the rest of the group do not acquire a right that he reciprocates.
The public goods condition
The public goods condition says that a fair-play obligation only arises when the goods which one benefits from are public goods. Advocates of the public goods condition, as McDermott depicts them, do not place any weight on whether the goods were voluntarily accepted or not. It is the fact that they are public goods, along with the fact that the goods were provided by a cooperative enterprise, that they appeal to. McDermott, having rejected the cooperative enterprise condition, focuses on whether the public goods condition can explain a fair-play obligation by itself.
Richard Arneson tries to support the public goods condition by saying that providers of private goods can exclude free riders, whereas providers of public goods cannot. Hence only with public good is there a fair-play obligation. McDermott thinks that this justification ought to be rejected. To counter it, he gives the example of a machine that members of a community use to improve the air quality. One person spends much time exercising outdoors, benefitting from the clean air, but refuses to contribute to the support of the machine. She is free-riding. McDermott thinks that if technology is somehow developed so that this person can be excluded from enjoying the clean air that results from the machine yet the technology is not used, her situation would not change. If she has an obligation without the technology, she has it when it is available but not used.
McDermott concludes that there is no morally relevant difference between free-riding in relation to goods which people can be excluded from using and non-excludable goods. He considers some objections to this conclusion, which I will not detail. My initial impression is that this is the weakest part of his article.
Hart, H.L.A. 1984. Are There Any Natural Rights? In J. Waldron (ed.), Theories of Rights, Oxford: Oxford University Press.
McDermott, D. 2004. Fair-Play Obligations. Political Studies 52: 216-232.