Social Injustice and the Right to Enforce a Legal Order

Enforcing a legal order means holding people under a duty to comply with the laws and prosecuting and punishing those who do not comply. Does a state that tolerates severe social injustice have a right to do this? The paper distinguishes and evaluates three responses. According to a first and dominant view, an unjust state loses its right to enforce a legal order because it is incapable of generating political obligations to comply with the law, at least amongst the unjustly disadvantaged. According to a second view, an unjust state loses its right to punish lawbreakers because it is incapable of generating political obligations, but it nevertheless retains a right to coerce them in various ways. According to a third view, an unjust state has a right to enforce a legal order despite the fact that it is incapable of generating political obligations. Upholding basic social order is so important that it overrides the fact that an unjust state is enforcing duties that, in a political sense, do not exist, and thus wrongs people. The paper defends three claims. First, the second view should be relegated from the discussion. Punishment and mere coercion are not dissimilar enough to make their justification fundamentally different. Second, the third view should be preferred to the first. This is because upholding basic social order is of overriding importance. Put differently, the criteria of rightful legal enforcement are easier to satisfy than the criteria of political obligation. This view does not run afoul of the requirement of treating persons as separate, since upholding basic social order is in everyone’s interest. Third, however, the right of legal enforcement is only a special right for tolerably just states. The right to enforce of unjust states is merely a general right, held by everyone who could discharge it. This means that there is nothing intrinsically problematic about external agents (e.g., the international community) enforcing a legal order instead of the unjust state. Indeed, it is inappropriate for unjust states to demand obedience from people it has significantly disadvantaged. Unjust states’ right to enforce therefore depends on that no other actors could feasibly do the job instead.