Liberalism

Promises and Following Orders

In this brief post, I want to discuss why promising or swearing to follow orders or to obey the law does not excuse people–such as soldiers or police officers–when they enforce unjust laws.

Tomorrow I begin teaching an eMBA course on ethical leadership. On the first day, we’ll discuss how personal moral responsibility is inalienable, how the law is not the same as morality, and how there is often a moral obligation to disobey the law.

Philosophers now distinguish between political authority and political legitimacy. The use of these terms isn’t standardized fully, but, generally, authority = the power to create obligations in others, whereas legitimacy = the permissibility of using violence in certain circumstances. Thanks in part to the work of John Simmons, it’s now fairly standard among political philosophers to hold that governments can be legitimate but are generally not authoritative. From a slide I’m using in class:

•Close to standard views among political philosophers:
1.There is no duty to obey the law
2.We have pre-existing moral duties to obey certain moral and conventional norms, which may or may not be protected by law
3.It’s okay for governments to exist and to enforce certain laws, even if there’s no duty to obey them
4.But, no, you don’t have a duty to obey the law per se

SHORT: The government cannot create obligations where there were none already

I’ll assume that this standard view is correct–that there is no general authority.

However, we can acquire obligations to obey the law, even if the government is not authoritative, by making promises. So, for instance, as an agent of Georgetown University, I have promised to follow the law (in my capacity as an agent), and thus have a duty to follow much of it. I don’t acquire this duty because the government is authoritative–it’s not–but because I promised to follow the law. In the same way, you can acquire a duty to follow the rules set by Matt Zwolinski if you promise to do so.

So, businesspeople and others might routinely have acquired indirect duties to obey the law, in their capacity as agents of a corporation, etc., as a result of promising to do so.

But, there are very clear limits to this. Promises to do immoral things are invalid:

•Limits: You can’t make promises to do immoral things.
•E.g., “I promise to murder John,” doesn’t obligate you to murder John.
•E.g., “I promise to obey Bob” + Bob asking you to murder John doesn’t obligate you to murder John.
•Implication: If the law requires you do to something immoral, and you can get away with breaking the law, you must.

This doesn’t just apply to businesspeople, but to sworn agents of the government, including soldiers, FBI investigators, and the police. The fact that these agents have promised to obey the government does not excuse them when they obey unjust orders, nor does it relieve them of moral culpability for following those orders. If you promise to do something immoral, this not only does not give you a duty to do the immoral act, but in fact exposes you to further condemnation.

The standard view in commonsense political thinking is that low level agents of the government (such as soldiers, police officers, etc.) are relieved of most of their moral responsibilities. “Agents” is a bad term for them, because “agency” implies autonomy and responsibility. On the contrary, commonsense political thinking treats low level agents as instruments of the will of their superiors, and it is generally only these superiors who can be blamed or praised. But this commonsense political thinking clashes severely with mainstream political philosophy, which denies that governments are authoritative, and with commonsense ethical thinking, which rightly denies that promises to do unjust things carry any justificatory weight.
On the contrary, I hold that low level agents are deeply morally culpable for enforcing unjust laws and orders. A fortiori, a cop who enforces an unjust law is even worse than a criminal. Consider two cases:
  1. Bob decides he doesn’t like it when people use pot, so he takes it upon himself to imprison pot users in his basement.
  2. Charlie, a sworn officer of the DC police, throws people in jail who use pot, because that’s his job and the law tells him too.

 

On the obviously correct assumption that pot criminalization laws are unjust, I don’t treat cases 1 and 2 as the same. In my view, Charlie’s behavior is more contemptible than Bob’s. Charlie, unlike Bob, is part of an agency that claims a monopoly on the use of violence, and which claims that right to maintain that monopoly because it will discharge justice. Charlie has sworn to protect people and make the world a more just place. When Bob throws people in jail, he’s acting like a petty tyrant. But when Charlie does it, he’s not merely acting like a petty tyrant, but he’s, in a sense, betraying us.

 

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