UC Irvine

The field of political and legal philosophy has for too long assumed that our obligations to obey law enforcement are justified by our obligations to obey the law. In this dissertation, I show that this is an assumption that cannot, and should not, be made easily for the case of policing institutions in the United States. The conspicuous injustice in the way law enforcement exercises its authority should raise doubts about this assumption. What then, does it meant to say that police officers have authority? And when can this authority be said to be morally justified? This dissertation answers the former question: Police authority is the liability inducing moral power to change the normative situations of the people they have authority over. My work suggests helpful ways to begin to answer the latter question: Police do seem to currently have some sort of genuine political authority, yet if we recognize this authority as a power that makes people liable to them and not, as has been commonly assumed, an obligation entailing the right to be obeyed, we can begin make sense of the particular problems that modern police pose for our conceptions of political and legal obligations, and for our moral statuses as members of the United States.

The first chapter of the dissertation outlines and analyzes traditional theories of political and legal obligation, I show that these theories do not yet adequately justify obligations of obedience to police institutions or officers. In some cases the views fail to justify obligations to the police for factual reasons about how the police in the United States actually work, in other cases this justification fails for conceptual reasons unique to the theorist’s views on what it means to have legal or political obligation. In other cases still, this justification fails because the topic of law enforcement or policing is wholly ignored.Here I examine legal positivism and show that neither Hans Kelsen nor H.L.A Hart nor Joseph Raz adequately justify obedience to police as “organs of the law.” I also examine arguments from membership or voluntaristic theories of political obligation, including those of Margaret Gilbert and John Rawls, I argue that they too fail to ground prima facie obligations of obedience to the police. In the second chapter, I present Arthur Applbaum’s power liability account of political authority and apply it to the case of modern policing. A power liability account of police authority holds that the authority of police officers is a liability-conferring moral power to change the normative situations of the people officers have power over. I explore what it means to say that police authority is a moral power, how officers might change the normative situations of people, and what it means for a person to be liable to the police. I draw out a significant if neglected implication of this view for police authority: even if fully legitimate, the authority of police (to change normative situations) does not necessarily nor conceptually entail a duty to comply with police directives. The third chapter of the dissertation develops this implication. I argue that the power liability view of police authority is agnostic on the moral question of when and how police directives can be said to properly, or justifiably, obligate individuals to obedience, if at all. Indeed, this a natural position to maintain in the face of the realities of police abuse. I suggest that the power liability account is nevertheless compatible with Rawlsian duties of justice that might be said to independently establish qualified reasons for obedience to police, or at least respect for law enforcement institutions. Here I compare the power liability view of police authority with Tommie Shelby’s Rawlsian treatment of modern policing. Both accounts justify disobedience to the police, but for quite different reasons. In Shelby’s view, we have content and context dependent reasons not to obey law enforcement. I remain agnostic about whether we have such moral reasons and take the power liability view to, prima facie, justify disobedience to the police. In chapter four defend the power liability view of police authority by offering three arguments for the view. The argument from resistance maintains that public debates about the need for obedience among people abused by the police are fundamentally misguided and morally unfounded. The argument from debate capture points us to where the proper moral center of debates between police reformists and police abolitionists is, namely, in the question of which moral powers police should have, and in which ways we can reasonably ask people to be liable to law enforcement. Finally, the argument from targeted significance tells us that it is possible to reach the radical conclusion that police are not morally owed obedience without having to deny the legitimacy of political and police authority and without having to deny the legitimacy of the authority of law. One need not be an anarchist to think that disobedience to police may be justified. Although my arguments in this dissertation are confined to the authority of policing in the United States, I believe my analysis can be extended to the case of border enforcement agencies. This is a point I plan to develop in future work