In her reply (“Colonialism by Any Other Name”) to my response to her original essay in this issue (“Libertarians Shouldn’t Accept the Case for Colonialism”) Sahar Khan takes issue with my claim that a government will be legitimate when all of its members accept the laws passed by it—a claim that would allow (in theory) a colonial government to be legitimate. Khan agrees with me that “Rule of law and equality under that law are important libertarian principles.” But she also holds that “the people [must] have a say in the nature and content of the laws that govern them” for such laws to be legitimate. Noting that in systems of foreign rule there is a divide between the governing class and those they govern, Khan observes that in such systems the governing class “is far more likely to be abusive, discriminatory, or inconsistent with the preferences of the locality.” Hence, she concludes, “libertarianism calls for… [the law] to be locally administered, subject to change according to the preferences of the population, and legitimated by the consent of the governed,” noting that “colonial and foreign rule tends not to meet those requirements.”
I agree with most of Khan’s analysis of the requirements that a law must meet for it to be legitimate, in the sense of the law imposing a moral obligation to obey upon those subject to it. I also agree with her astute observation that in practice the further the governing class gets from those they govern the less likely it will be that the laws that it passes will fulfill these requirements. But I disagree with her claim that for a law to be legitimate the people that it governs must have participated (or had the opportunity to participate) in its formation.
In what follows I will focus exclusively on laws that require persons to perform, or refrain from performing, certain acts, and will not address those laws—such as those that outline what procedures must be followed for a will to be legally valid—that enable persons to perform particular legally recognized acts.
That persons subject to a law need not participate (or have had the opportunity to participate) in its formation for them to be obligated by it follows straightforwardly from the view that a law can obligate someone if she agrees to be obligated by it, for a person could agree to be obligated by a law even if she has no say in its formation. A person could thus be obligated to obey laws imposed by a government that had colonized her country even if she was excluded from the processes that led to them, provided she agreed to obey the laws it imposes upon her. Khan might, however, observe that this response to her question avoids the thrust the question: That while my defense of the possibility of persons being obligated by the laws imposed upon persons subject to colonial rule was theoretical in nature this response is too theoretical, for it is unlikely that anyone subject to colonial rule agreed to be obligated by it.
This is a reasonable response. (And one that Khan could press further, to note that if this is the only way of grounding the obligation to obey the law then almost no one would be obliged to obey the laws that they are subject to.) But a person could be obligated to obey laws that she did not expressly consent to if they enjoin her to perform (or refrain from performing) actions that she had an independent moral reason to perform (or refrain from performing) in the absence of the law. In this case the obligation to obey the law would stem not from the fact that it was the law, but from the prior moral obligation to perform (or refrain from performing) the act in question. If colonial laws were restricted like this then persons would be obligated to obey them independently of whether or not they had had the opportunity to contribute to the process that led to them.
As with my initial focus on express consent Khan could respond by noting that, again, this approach to establishing the obligation to obey colonial laws would legitimate very few of them. However, the final way in which a law might obligate those who are subject to it is more expansive: That a person will be obligated to obey a law if she has expressly agreed to be obligated by the laws that are passed by a particular legislative body. This approach to establishing political obligation differs from the first consent-based approach insofar as the persons who are to be bound on this account could do so prior to knowing the content of the laws that will be passed; they simply trust the judgement of the legislators and agree to be bound by their decisions. In theory, then, persons living under a colonial regime could be obligated to obey its laws even if they had not expressly consented to the particular laws in force, if they had no prior moral obligation to perform (or refrain from performing) the acts that the laws required them to perform (or refrain from performing), and if they had no say in the content of the laws or the processes by which they were enacted.
This is, of course, only a theoretical defense of the legitimacy of colonial laws. No colonial government ever governed with the consent of all the persons subject to them, and so no colonial government was ever legitimate. On this, I think, Khan and I can agree.
In closing, however, I would like to pose two questions to Khan, which echo her own closing questions. Could it ever be legitimate for the government of a country to sub-contract some of the role of government to independent contractors—including foreign contractors? Could an international market in government services ever be morally legitimate? And, if so, would the provision of those services count as colonialism?