Rights Theory

Promises and the Right to Resist Injustice

I’ve been working on a project called When All Else Fails: Resistance to State Injustice. The thesis is of the book is simple: We have exactly the same rights of self-defense and defense of others against state injustice that we have against civilians. In the later chapters, I argue this holds true even if you are an agent of the government. (For instance, if a democratic president is about to commit an atrocity, his government-appointed bodyguards have the right to shoot him.)

However, one argument for the other side goes roughly as follows:

Government agents promise to follow orders. In virtue of making such promises and voluntarily accepting their roles, they become fiduciaries of the government. Thus, they have duties to perform unjust actions, or, at the very least, they may not sabotage or interfere with certain other government agents who commit injustice.

The problem with arguments like this is that they misunderstand how promises work. They also misunderstand what it means to become a fiduciary.

Suppose I say, “I, Jason Brennan, being of sound mind, promise to obey my frequent co-author Peter Jaworski in all things.” Suppose Peter and I sign a contract—I agree to follow his orders and in exchange, he pays me $10,000 a month. Now, such a contract might indeed obligate me to do some things. If Peter demands I refrain from watching House of Cards, the contract obligates me to follow. But suppose Peter says, “I demand you murder an innocent Syrian child, and, in addition, that you stop feeding your own children.” I have no duty to obey Peter here; on the contrary, my pre-existing duties to avoid killing innocent children and to feed my own children trump my promise.

Now one might believe that promises to governments are different. But unless we have a good argument to that effect, we don’t have any reason to believe it. If I promise to obey the president, and the president then tells me to murder a Syrian child, I don’t acquire a duty to kill the child, and the child’s rights do not disappear. That’s not how rights work. Rights are stringent side constraints held against other people. They do not disappear because you make a complicated promise to someone with a fancy title.

Before you make a promise, there are some actions you are forbidden to do, some you are obligated to do, and others that are morally optional. What promises can do is move some of the optional actions into the forbidden or obligatory categories. But they don’t move actions out of the forbidden or obligatory categories.

The fact that government 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. This is a misunderstanding of how promises work.

Similar remarks apply to becoming someone’s fiduciary. Suppose I’m a lawyer. I have no obligation to defend a stranger. But when I become that person’s lawyer, I do acquire new obligations to help that person. However, I may not, e.g., threaten to murder the DA’s kids in order to get him to drop charges against my client. A parent cannot bash the knees of the kids on the rival basketball team to helps his kids win. A manager cannot dump toxins in the local park to maximize the profits of his shareholders. Fiduciary duties are like promises–you don’t lose your pre-existing duties in virtue of becoming a fiduciary.

Now, promises can change the moral status of optional actions. Acting in self-defense or in defense of others is often, if not always, optional. Thus, we might ask: can one lose the right to engage in optional self-defense or defense of others in virtue of making a promise to follow orders?

Frankly, that seems implausible. Suppose Batman and Superman are walking down the street. Superman says, “Batman, I’m thinking about retiring. But I know you’d prefer that I keep saving people. So, I propose an exchange. I’ll spend one more year doing heroic deeds, but only if you promise to do something for me right now. Don’t worry—I won’t ask you to do anything you are forbidden to do or required not to do.” Suppose Batman agrees. Then Superman says, “Ha! Gotcha! What I’m going to do right now is murder that kid over there. And, as you agree, according to the correct moral theory, saving that kid from me would have been supererogatory rather than obligatory for you. So, ha ha, now you have a duty not to stop me!” In this case, it doesn’t seem like Batman has acquired a duty not to interfere with Superman. Rather, it seems that Batman’s promise did not relieve him of the right to defend others. Or, if Superman had said he planned to kill Batman instead, it seems permissible for Batman to defend himself, despite his promise.


  • Puppet’s Puppet

    I am skeptical that much of anyone would ever think to disagree with the bulk of these claims. I doubt much of anyone would hold that one could ever incur a “duty to perform unjust actions,” to be somehow morally obligated by a promise to perform an action that would otherwise be morally forbidden. And I doubt much of anyone who isn’t from interwar Europe would be so statist as to believe that duties to government obedience have some special status over normal ones in any manner. That kind of statism is certainly rather foreign to American patriotism. Not even New Republic readers are that statist. And the whole mess of it grossly and explicitly contravenes the most basic moral teachings of, for example, Christianity. It’s all in all a rather foreign way of thinking to our “common sense” moral heritage.

    The matter of whether a promise can forbid the option to defend the innocent from harm is interesting, although you might want to adjust it by making Superman fly to China to do his killing of the innocent, with enough time for Batman to drop everything instantly and book a flight to catch up with him. The present example, for many readers, may get some illegitimate help from intuitions concerning the immediacy of the situation–common sense might even insist that it’s so immediate that Batman incurs a duty to stop this particular killing, or at least “pollute” our intuitions with a milder form of that intuition. Much cleaner to have Batman have to fly halfway around the world.

    While this certainly shows that a promise doesn’t always bind a person to an optional defense of others, there may be cases–quite relevant to the work of a state agent–when it does. Suppose that, rather than this careless promise not to interfere with the evil caprices of Superman himself, Batman has committed to helping Superman on some mission of weighty moral importance, say to stop one of Superman’s evil nemeses. Then Batman’s commitment to their mission may preclude him from stopping some unrelated evil he sees occurring right in front of them if that detour would, say, blow their cover or even otherwise impede the mission due to its distraction. A common street assault, certainly, but possibly even an imminent murder. He probably wouldn’t be bound like this for the sake of a mission to get Superman’s hedge trimmer back from an intransigent Luthor, say, but his prior commitment to a mission probably would remove some of his normal right to discretion as to which of two closer cases is important. I’d call that “a loss of the right to engage in optional…defense of others in virtue of making a promise to follow orders”; and the potential relevance to various government duties is clear.

  • I say some similar things in my paper on contractual slavery in the Philosophical Quarterly, here:
    Here is an excerpt:

    “Suppose that one such Greek contracts to be a slave. After a while, the slaveholder directs the slave to rob other citizens. Those directions are illegitimate because, if they are carried out, legitimate claim-rights of some citizens will be violated. The slave is therefore under no duty to execute those directions; indeed, the slave has a duty not to execute those directions. A slave is a person and is thus a moral agent who is under the general duties that any person has to respect the legitimate claim-rights of others (Thomson 1990: 215). That was recognised in all societies which had an institution of slavery: slaves were held responsible for their actions and punished for committing crimes (Patterson 1982: 22-2, 195, 196-7). When the slave and the slaveholder agreed that the slaveholder has the claim-right to direct all the slave’s actions, their agreement implied that the slave acquired the duty to follow only the slaveholder’s legitimate directions, and that the slaveholder acquired the claim-right to direct the slave only in legitimate ways. A person cannot, by becoming a slave, or by becoming a slaveholder, acquire a new authority-right to alter the claim-rights of third parties. Therefore, even if slavery contracts are legitimate, by issuing directions to rob other citizens the slaveholder is acting outside of her legitimate authority.”

    Thus, I would not say that your pre-existing duties to avoid killing innocent children trump your promise to obey. It is rather that you could only promise to obey legitimate orders; and the order to kill innocent children is illegitimate.

  • AP²

    Seems strange to write this post without mentioning the Nuremberg defense, arguably the most important case where the question of whether an obligation to the State relieves one of ethical culpability.

    Wikipedia has an whole article about this, with historical examples and arguments for and against: https://en.wikipedia.org/wiki/Superior_orders

    • Farstrider

      I wrote my response before I read yours. Well done.

  • Pajser

    The priority of the state over individual in making decision can be derived from assumption that in some situations, truth is not known, yet, in despite of that, centralized decision have better outcomes than lack of it. The regulations that prevent tragedy of the commons are obvious examples. The state is exactly the institution which makes centralized decisions in such situations.

    The army fights just war. In regular situations, the rule “obey commands even if you believe you know better” leads to victory; the rule “obey commands only if you don’t know better” leads to defeat. (We are not concerned with irregular situations now.) Imagine that you are officer in army; you got command and you believe your opinion is slightly better. You should obey command.

    Imagine that you are one of many independent guerrilla officers who fight just war; in exactly the same military situation as above, you got advise of other guerrilla officer which is exactly same as command in previous example. You believe your opinion is slightly better. You should follow opinion.

  • Farstrider

    Is your “rough” argument for the other side something that people actually assert, in a post-Nuremberg world? Because it sounds like a strawman to me. Instead, your argument basically boils down to “following orders is not a moral defense.” But that is a proposition that was well established, in international law at least, more than 70 years ago.