In my paper “When May We Kill Government Agents? In Defense of Moral Parity,” I argue that the conditions under which we may justifiably kill democratic government agents, acting ex officio, in self-defense or defense of others are the same as when we may kill civilians in self-defense or defense of others. Most people seem to deny this and instead subscribe to what I call the “Special Immunity Thesis,” which holds that democratic government agents acting ex officio may be killed only under a much more tightly constrained set of conditions than the conditions under which we may justifiably kill civilians.

Here is an long excerpt from the paper in which I consider the most obvious justification for the special immunity thesis: Democratic governments have legitimacy and authority, and so their agents are due deference, even when committing severe injustices, in a way that civilians are not. I argue this objection fails. I also consider at length Estlund’s argument that we can have a duty to follow unjust orders. I worry Estlund is getting public reason liberalism backwards.

The excerpt below refers to various examples drawn from here.

3. Legitimacy and Authority

There appears to be an obvious justification for the Special Immunity Thesis: Democratic governments have a special moral status. Unlike lone shooters, criminal organizations, health nuts, or totalitarian dictators, many democratic governments (and, by extension, their agents acting ex officio) are both legitimate and authoritative. They have a right to rule and we have a duty to obey them. Therefore, while it is permissible to kill an evil-doing terrorist, it is not permissible to kill an evil-doing president, even when that president is doing the same thing as the terrorist.

 

3.1. The Concepts of Authority and Legitimacy

To evaluate this purported justification of the Special Immunity Thesis, we must first clarify what the terms “legitimacy” and “authority” mean.

A government is legitimate just in case it is permissible for that government to stand, and to create, issue, and enforce rules using coercion. A government is authoritative (or “has authority”) over certain people just in case those people have a moral duty to obey that government’s laws, edicts, and commands. Legitimacy might make it permissible for the government to tax you. Authority might make it impermissible for you to refuse to pay. In short, “legitimacy” refers to the moral permission to coerce, while “authority” refers to a moral power that induces in others a duty to submit and obey.[i]

 

3.2. Legitimacy and Authority are Logically Independent Properties

Legitimacy and authority are independent moral properties. Most theories of legitimacy and authority try to ground both properties on the same principles, such that governments have both or neither. But, at least as a matter of logic, a government (or a government-like entity) could have one without the other. Having legitimacy does not suffice to have authority; having authority does not suffice to have legitimacy.

To see how a government-like entity could be authoritative but not legitimate, imagine a theory of “pacifist democracy”. This theory holds that we should all obey a central rule-making deliberative council. However, the theory holds that this council may never use coerce people to comply with its rules. The pacifist theory thus holds the council is authoritative, but not legitimate.[ii] This pacifist theory may be false, but is not incoherent.

Governments could also be legitimate but not authoritative. That is, a government might have moral permission to stand and to create laws, even if no citizens have the duty to obey or defer to that government. The government would have permission to force citizens to obey, but citizens would have no obligation to obey. In fact, as I’ll discuss in 3.4, there’s reason to think this view—that governments have legitimacy but not authority—is the dominant position among political philosophers who write about authority and legitimacy.

 

3.3. Legitimacy Is Irrelevant to This Debate

If a government has legitimacy to do X, then it has moral permission to use violence (within appropriate limits under appropriate conditions) to enforce its ability to do X. If a government has legitimacy to issue rule X, then by definition is has moral permission to force you (within appropriate limits under appropriate conditions) to comply with X.
Yet, we just discussed in section 3.2, the fact that a government has legitimacy to do X does not imply citizens must let the government do X or obey the government when it does X. That a government legitimately does X tells us nothing by itself about what citizens may or may not do in response. Citizens might instead have no duty to obey. They may be free to resist or even to fight back violently.[iii]

If that seems puzzling, consider a boxing match. In a boxing match, both boxers have waived their right not to be punched. However, they both retain the permission right to block or evade the others’ punches. Thus, while they both have legitimacy to punch the other boxer, they don’t have authority to do so.

So it might go in cases D-F. Even if the government agents have legitimacy to commit these injustices, that would not imply Ann has any duty to refrain from killing the government agents. Even if we supposed the president in Hawk could legitimately nuke Russia, Ann might still be free to kill him in defense of others. We would need a further argument that it’s not only legitimate for the president to nuke Russia, but also that he has authority over Ann such that she must let him.

 

3.4 Authority Probably Doesn’t Exist

If, for some reason, governments and their agents had authority, this might explain why democratic government agents enjoy special immunity. By definition, authority is a moral power that induces in others a duty to defer and obey.
However, there’s a serious problem with invoking democratic authority to defend the Special Immunity Thesis: There’s strong reason to believe that no governments, democratic or otherwise, have authority. The doctrine of government authority has been subjected to sustained and overwhelming philosophical criticism over the past 30 years. As far as I can tell, following A. John Simmons’s seminal work on political obligation, the now dominant view among political philosophers is that while some governments can have legitimacy, none have authority.[iv] (Or, more precisely, they might have authority over a tiny subset of their citizenry.) As Michael Huemer similarly concludes, after reviewing the literature, “Skepticism about political obligation [i.e., authority] is probably the dominant view” in philosophy now.[v] We now know that none of the traditional arguments (consent, tacit consent, hypothetical consent, fairness, associative obligations, etc.) for government authority come close to succeeding. Following Simmons, others have offered new arguments for authority, but these more recent arguments are highly problematic, and hardly anyone other than the authors of these arguments find them persuasive.[vi]

Of course it’s possible that some governments do have authority, but my point here is that we don’t seem to have any good grounds for thinking they do. Since philosophers have spent 2500 years trying, and failing, to prove that some governments have authority, we should probably assume they don’t. At some point, the perpetual failure to prove that X is evidence that not-X.
I cannot review the entire literature on political authority here. But I can shift the burden of proof. Someone who thinks political authority justifies the Special Immunity Thesis has the burden of producing a plausible theory of political authority.

One worry for me, though, is that if governments lack authority, then this threatens to trivialize my argument in this paper. If governments lack authority, one might think that of course the Special Immunity Thesis is false. One response would be to say I’m just exposing an unnoticed implication of the recent downfall of the doctrine of government authority: Not only do we lack any duty to obey the law, but, in addition, wrongdoing government agents are as fair game for defensive violence as wrongdoing civilians.

However, even if governments lack authority, this doesn’t trivialize my thesis here. There are a number of other seemingly plausible justifications for the Special Immunity Thesis, justifications that do not rely on the assumption of government authority. It takes additional work to show these other justifications fail. Also, as I explain in the next section, even if someone could show that democratic governments do enjoy a kind of general authority, it would take additional work to justify the Special Immunity Thesis.

 

3.5. General Authority Does Not Imply Specific Authority

Suppose, contrary to the state of the literature, that democratic governments do in fact have sort of authority. Even if, heroically, this were established, it takes further work to defend the Special Immunity Thesis.

To say a government has authority means that there is at least one situation where a person has a duty to do something because the government commands that person to do it. But a government can have authority over some issues without having absolute authority over everything. Indeed, every extant believer in democratic authority thinks that democratic governments have a limited scope of authority.

Recall that violence in self-defense and defense of others is warranted, on commonsense moral grounds, only to protect oneself or others from severe harm or injustice. To defend the Special Immunity Thesis on the basis of authority, one must show that democratic government agents specifically have authority to commit severe harms or injustices, the very harms and injustices that would render a civilian liable to defensive killing. For the Special Immunity Thesis to be true, it’s not enough that governments have some authority, but that they have the specific authority to commit these severe injustices.

As defenders of government authority themselves accept, even if we grant that a democratic government is authoritative overall, it does not follow that every single command, action, edict, or policy of that government is authoritative. Each of the following could succeed or fail in being legitimate or authoritative:

1. Regime-types as a kind. (For example, can a theocracy ever be legitimate or have authority?)
2. A particular government’s overall right to stand. (For example, is the US federal government legitimate or authoritative overall?)
3. Particular offices or branches within a government. (For example, are the Federal Reserve, the Drug Enforcement Agency, or Department of Homeland Security legitimate or authoritative?)
4. Particular government practices and procedures. (For example, are judicial review, jury trials, or the indefinite detention of so-called “enemy combatants” legitimate or authoritative?)
5. Particular laws, commands, and regulations. (For example, is marijuana criminalization in the U.S. legitimate or authoritative? Was the Comstock Law legitimate or authoritative?)
6. Particular actions and decisions. (Was the Dred Scott decision authoritative? Was it legitimate to wage the Spanish-American war? Did citizens have a duty to let the government fight the war? Was the Indian Removal Act of 1830 legitimate or authoritative??)

These distinctions make a difference. Authority in one does not imply authority another. A lack of authority in one need not imply a lack of authority in another.[vii]

Anyone who wants to defend the Special Immunity Thesis on the basis of authority has a serious burden. It won’t be enough to justify a general kind of government authority. Instead, one must produce a theory that justifies granting democratic officials authority to commit severe injustices, the kinds of injustices where we could justifiably kill civilians if the civilians were to try to commit them.

To illustrate this burden: Imagine Bill is the lawfully elected president. Bill demands sex from an intern. Even if Bill is the authoritative president of what is overall an authoritative regime, the intern has no duty to comply. Should he try to rape her, she may kill him in self-defense, subject to the conditions described in section 2.

Or, suppose a police officer, following the Fugitive Slave Act, arrests an escaped slave in Antebellum America. Suppose I shoot the police officer in order to free the slave. Even if we suppose that the US Federal Government in the 1850s was legitimate and authoritative overall, it seems deeply implausible to hold that citizens had a duty to let it enforce slavery. Until I see a compelling argument for a theory that says otherwise, I’d regard it as a reductio of any purported theory of authority that it implies I must let police officers enforce slavery.

Or, suppose the United States conducts a referendum on whether it will nuke the tiny island nation of Tuvalu. Suppose all eligible American voters vote. Suppose each of them, except me, votes to nuke Tuvalu. Suppose I know that there are no good grounds to nuke Tuvalu. (I can imagine good grounds to do so, but they are incredibly improbable.) In this case, it seems obvious I have no duty to defer to my government leaders or my fellow citizens when they attempt to nuke Tuvalu. Now, perhaps someone will one day prove that, according to the Correct Theory of Government Authority, democratic governments specifically have authority to nuke other countries. But at least until I see the compelling argument, I’d regard it as a reductio of any purported theory of authority that it implied this.

 

3.6. Estlund on the Authority of Unjust Orders

            Thus far, I’ve laid out a general challenge to anyone two tries to justify the Special Immunity Thesis on the basis of authority: One has to prove not that governments have some authority, but that they specifically have the authority to commit severe injustice, the kinds of injustice we would be allowed to kill civilians to prevent.

In this section, I’ll examine David Estlund’s attempt to meet this challenge. Estlund holds that we can have a duty to follow or defer to unjust orders if the orders were produced by the right people in the right way. Suppose that the United States conducts a referendum on whether to bomb Tuvalu using conventional weapons, but in this case, it makes a series of “honest mistakes”. Suppose Americans mistakenly but sincerely believe that bombing Tuvalu is justified according to correct theory of just war. Suppose that if their beliefs were correct, it would be justifiable to bomb Tuvalu. Suppose they decide to bomb Tuvalu only after employing a deliberative forum that perfectly fulfills Jürgen Habermas’s or Joshua Cohen’s ideal procedures for democratic deliberation. But now suppose I happen to know that their beliefs are mistaken and that war against Tuvalu is not justified. Suppose it’s my job to launch the bombs. Must I bomb Tuvalu, knowing full well that in doing so, I’ll kill innocent people who are not liable to be killed?

I think it’s obvious that I should not do so. However, Estlund contends otherwise. He claims that when the following conditions are met, a person not only may, but usually must follow orders, even orders to commit unjust acts:

1. The act one is ordered to do is a token of a type of act that could in principle be justified.
2. The decision process used is one that is publically justifiable to all reasonable people.
3. The order results from reliable and fair decision process—a process that usually tracks the truth as well as any other process that meets condition 2.
4. Those who issue the order sincerely and in good faith believe that the order is justified.[viii]

Estlund takes these conditions to establish both the legitimacy of acting on unjust orders, and the authority of those orders. He thinks only democracies could meet these four conditions, though he doesn’t argue any real democracies in fact do meet them.

Even if Estlund were correct that such conditions could establish the authority of some unjust orders and actions, this does not yet justify the Special Immunity Thesis. After all, as Estlund seems to admit, the conditions under which a democracy would have authority are highly ideal, and it’s not clear that any actual democracy meets this conditions.[ix] In his book Democratic Authority, he never tries to show that any actual democracy has authority; he just tries to outline conditions under which a democracy could have authority. So, for Estlund to claim that some democratic government agents enjoy special immunity, he’d have to show first that some existing democratic government is sufficiently just and fair to qualify as authoritative, and second that this government has actually issued an unjust order while meeting Estlund’s four criteria above.

This issue aside, should we grant Estlund his theory of the authority of unjust orders? For the sake of argument, I’ll assume on Estlund’s behalf that he has succeeded in showing that some extant democracies do have a general kind of authority. Even if so, why believe that they could have the specific authority to commit severe injustice? Estlund has two strands of argument on behalf of this claim.

First, Estlund relies upon casuistical reasoning. He describes a few cases in which a person—Jason the Jailor—is ordered to commit relatively minor injustices. Estlund expects his readers to agree that Jason must obey the orders. He then tries to show that if so, his readers must also agree, on pain on inconsistency, that Jason could be obligated to follow orders to commit relatively severe injustices.

Estlund’s least controversial case, in his own eyes, goes as follows. Suppose that a fair and reliable jury in a fair and impartial legal system convicts a defendant, but the jury or judge makes an honest moral mistake. Estlund writes,

Jason the Jailer realizes the defendant is guilty, but knows that the sentence of 20 years in jail is excessive. Suppose the crime is embezzling $1000. Jason sees that anything more than 5 years is morally indefensible. Jason is legally ordered to keep the prisoner for 20 years, but suppose he could easily let him escape after 5. Is Jason permitted to carry out the full punishment?

 

It seems clear to me that he is.[x]

 

Estlund goes on to argue that Jason not only may carry out the orders (i.e., that he has legitimacy to do so), but that, unless following the orders imposes some severe psychological burden on Jason, he must (i.e., that the orders are authoritative). Note that in the case above, Estlund isn’t saying that Jason merely judges the punishment is too severe. Rather, he wants us to understand that Jason is right and the order is wrong. There is a procedure-independent moral fact that anything more than five years is wrong.

Estlund builds his argument on this kind of case. If you’re committed to saying that Jason has a duty to carry out the full punishment here, then, Estlund thinks, you’ll have to admit that executioners should kill convicts they know to be innocent and that soldiers should follow unjust orders.

I’m unmoved by Estlund’s example. It seems clear to me not only that Jason may allow the prisoner to escape, but also, if he’s not under duress, he must allow the prisoner to escape. Estlund also describes a case in which a person is wrongly convicted by a fair and impartial jury trial. The defendant is in fact innocent, but the jury makes an honest, blameless mistake, and finds him guilty. Jason the Jailor knows that the defendant is innocent, but, despite knowing this, he can’t prove it others. Estlund asks, may Jason let the defendant escape? Estlund thinks that it’s obvious Jason may not, but I think it’s obvious that he may. I don’t have the moral intuitions that Estlund wants to build upon.

Strictly speaking, that I, a reasonable person, don’t share Estlund’s intuitions is a problem for him rather than for me. After all, according to Estlund’s own underlying philosophical commitments as a public reason liberal, he needs to justify coercion to all reasonable people. He can’t build a theory on controversial intuitions and judgments that reasonable people reject. Also, it’s a part of commonsense moral thinking, by default, we are presumed not to have a duty to follow unjust orders. This duty has to be justified.

Estlund’s other strategy is to argue that disobedience involves some kind of epistemic or moral immodesty. He thinks it can be wrong for you to hold that you have superior judgment to others or to certain collective decision processes, or that it can be wrong for you to just install yourself as the “boss”. For Jason the Jailor to refuse to obey the order would be, in effect, to assert that his judgment is superior to the court’s. Or in effect it would be to assert that he, Jason, is the boss over the court. Estlund adds that even if Jason did have superior judgment, there’s no way that Jason could prove to all reasonable people that his judgment was in fact superior.[xi]

I find this strand of argument strange. Jason the Jailor might agree that the legal system is reliable overall and the system tends to be more reliable than he. But, he might also hold that in this particular case, it got the wrong answer. And, by Estlund’s hypothesis, indeed it did, and Jason knows this. What justifies Jason in letting the convict escape isn’t that Jason has some specific moral right to always abide by his own judgment—of course, he doesn’t—but that Jason got the right answer while following correct reasoning procedures. Talking about who is authoritative misses the point. Jason can let the defendant go not because his judgment that the defendant is innocent is his, but because his judgment is correct. Estlund might say to Jason the Jailor, “You might be right that the defendant is innocent, but who made you boss?” Jason might respond, “In this case, no one is the boss. The jury justifiedly but mistakenly believes that the defendant is guilty, so it has legitimacy, but not authority, to jail him. But I know that the defendant is innocent, so I must not obey. The reason I can let the convict escape is not because I’m the boss, but because the jury fails to be my boss.”

Estlund’s worry about Jason taking himself to the boss might expose some tension in Estlund’s thought. Estlund wants to build his theory of democratic authority within the tradition of public reason liberalism. Public reason liberalism’s fundamental idea is that coercion is presumed unjust, illegitimate, and non-authoritative unless it is justified in suitably public way to all reasonable people.[xii] On a public reason liberal account, there is a massive asymmetry in what it takes to justify coercion versus what it takes to invalidate it, or in what takes to justify authority versus what it takes to invalidate it. Every reasonable person has a special power to block coercion and invalidate purported authority. For a reasonable person to reject government coercion needn’t mean that he takes himself to be the boss or to have authority, but he takes the government to fail to be his boss or to have authority. When Jason refuses to jail the defendant, he’s not coercing anyone, and so his refusal to follow orders doesn’t need to be publicly justified.

Moreover, it seems that the citizen of a just society would want Jason to let the innocent man go free. Consider a parallel situation. Suppose I believe that the correct moral principles imply my son Aiden should do X. But suppose I’m mistaken—in fact, the moral principles imply he should do Y. Now, when I tell him to do X, I want him to obey me. But, being a decent human being, I also want even more for him to do what’s in fact right. In this situation, I thus have a de re desire that Aiden do wrong, but an even stronger de dicto desire that he do what’s right. As a moral person, I prefer A) that my son do what’s right even though I think it’s wrong and ordered him not to, to B) that my son do what’s wrong because I think it’s right and ordered him to do so. To prefer B to A would be, well, rather vile. For me to prefer B to A would mean I’m more concerned with being the boss than I am with doing what’s right.

So, similarly, a just democratic society would prefer A) that its citizens do what’s in fact right, even if the democracy mistakenly ordered the citizens to do something wrong, to B) that its citizens do what’s wrong because the democracy mistakenly ordered them to do so. Only a population of vicious people would prefer B to A.
[i] Estlund 2008, 2. See also http://plato.stanford.edu/entries/authority/. In earlier political philosophy, the terms were used in sloppy or non-uniform ways. However, in the last ten years or so, it has become the convention to use the terms exactly as I define them here. There is also a sociological concept of “legitimacy,” associated with Max Weber, where sociological “legitimacy” refers to the a government’s perceived authority. This concept of legitimacy is irrelevant to the debate here.

[ii] I say “government-like entity” because I regard governments as essentially coercive institutions. Following Gregory Kavka (“Why Even Morally Perfect People Would Need Government,” Social Philosophy and Policy 12 (1995): 1-18, here p. 2.), I define government as the subset of a society which claims a monopoly on the legitimate use of coercion, and which has coercive power sufficient to maintain that monopoly.

[iii] Note, for instance, that even the apparently absolutist Thomas Hobbes agreed with this point. He argues that subjects have no duty to allow themselves to be killed. Even if a murderer is rightfully convicted and rightfully sentenced to death, Hobbes thought the murderer was permitted to resist execution. See Thomas Hobbes, Leviathan (Indianapolis: Hackett, 1994), I.xxi.17, p. 143; Thomas S. Schrock, “The Right to Punish and the Right to Resist Punishment in Hobbes’s Leviathan,” Western Political Quarterly 44 (1991): 853-890; Peter J. Steinberger, “Hobbesian Resistance,” American Journal of Political Science 46 (2002): 856-865.

[iv] See, e.g., A. John Simmons, “Philosophical Anarchism,” in For and Against the State: New Philosophical Readings, ed. John T. Sanders and A. John Simmons (Boulder: Rowman and Littlefield, 1996), pp. 19-30. Note that Simmons does not use the words authority and legitimacy the way I do, as the definitions I use became standard later in the literature. For a survey showing how untenable most accounts of political obligation are, see M. B. E. Smith, “The Duty to Obey the Law,” in Companion to the Philosophy of Law and Legal Theory, ed. D. Patterson (Oxford: Blackwell, 1996). See also Arthur Isak Applbaum, “Legitimacy without the Duty to Obey,” Philosophy and Public Affairs 38 (2010): 216-239.

[v] Huemer 2013, 19.

[vi] As far as I can see, Huemer 2013 decisively refutes all of the more recent theories of authority that he considers.

[vii] Simmons makes this point in in Christopher Heath Wellman and A. John Simmons, Is There a Duty to Obey the Law: For and Against (New York: Cambridge University Press, 2005), 95. He says that even the most diehard proponents of the duty to obey the law will believe that most legal systems that are, on balance, quite just will include some laws that no one has a duty to obey.

[viii] David Estlund, “On Following Orders in an Unjust War,” Journal of Political Philosophy 15 (2007): 213-234.

[ix] Estlund Democratic Authority, 28-29, 275-281.

[x] Estlund 2007, 216.

[xi] David Lefkowitz also interprets Estlund this way. See http://isme.tamu.edu/ISME09/Lefkowitz09.html#_edn9.

[xii] See Gaus, Contemporary Theories of Liberalism, 208-218, for a summary of these commitments.