Jeff McMahan truly excellent book Killing in War challenges the doctrine of the moral equality of combatants in war. According to this widely held view, soldiers in a war have equal permission rights to kill one another. When Eviltopia unjustly invades Justicia, the Eviltopian soldiers have just as much permission on the battlefield to kill the Justician soldiers as vice versa. McMahan thinks this is absurd (and I agree):

The contention in this book is that commonsense beliefs about the morality of killing in war are deeply mistaken. The prevailing view is that in a state of war, the practice of killing is governed by different moral principles from those that govern acts of killing in other contexts. This presupposes that it can make a difference to the moral permissibility of killing another person whether one’s political leaders have declared a state of war with that person’s country. According to the prevailing view, therefore, political leaders can somehow cause other people’s moral rights to disappear simply by commanding their armies to attack them. (vii)

McMahan says that when you state the commonsense view this way, it seems absurd. Of course, he says, many smart philosophers have tried to explain why political leaders declaring war could somehow legitimize Eviltopians to kill Justicians. But, he goes on to argue, really they are just rationalizing an absurd position. The correct position, McMahan argues, and I agree, is that, in general, soldiers who lack just cause may not kill soldiers from the other side. Justician soldiers may kill Eviltopian soldiers, but Eviltopian soldiers may not kill Justician soldiers.

My current project on killing the agents of democratic governments is written in much the same spirit as McMahan’s Killing in War. Indeed, I’m borrowing moves from him, and from John Simmons and Michael Huemer. The commonsense view seems to assume that I must defer to government agents and allow them to commit severe injustices simply because they are government agents acting from their offices. The prevailing view is that, when it comes to government agents, the practice of killing in self-defense or defense of others is governed by different moral principles from those that govern defensive killing in other contexts. This presupposes that it can make a difference to the moral permissibility of killing an aggressor in self-defense or defense of others that the aggressor is wearing a uniform, or was appointed by someone who was elected by my neighbors. According to the prevailing view, political leaders or my neighbors can eliminate my permission right of self-defense or defense of others simply by granting someone an office.

My view is that there’s no good grounds for believing this. It’s obviously not a brute moral fact that there’s a difference, so we have to look for some real thing that explain sthe purported difference. And, as far as I can tell, there’s no successful explanation. So, I conclude, if you can kill a civilian in some situation S, then when a relevantly similar situation S’ arises involving a government leader, you can kill that government leader.

Now, the most obvious move someone will try to make in defense of the Special Immunity Thesis is that government agents, at least the agents of democratic government, enjoy “legitimacy” and “authority”. Harry Reid is the legitimate leader of the Senate, while Cobra Commander is just a terrorist. But there’s a bunch of problems with this. I’ll outline a few here.

First, legitimacy is irrelevant. Legitimacy = a permission right to create and enforce rules (using coercion) within a geographic area. Or, more broadly, legitimacy = permission to use violence. The reason legitimacy is irrelevant is that it at most tells us what government agents may do. It does not tell us what we may do in response. So, for instance, in a boxing match, both boxers have legitimacy to punch the other, but neither has a duty to allow himself to be punched. Instead, they may each evade or block the other punches. So it could go with government legitimacy. Even if we establish that the president may legitimately nuke Tuvalu, that leaves it open what I may do in response.

Instead, what matters in determining how we may respond to government agents is their authority. Authority = the moral power to create obligations in others.

Legitimacy and authority are logically independent properties. Having one doesn’t imply, as a matter of logic, that one has the other. A pacifist political theory might hold that a central rule-making group has moral authority to create rules for others, but hold, without contradiction, that this group may never use coercion to enforce its rules. In that case, we have authority without legitimacy. (This theory may be false, but my point here is just that it’s not contradictory.) Or, a political philosopher might hold that while it can be permissible for governments to exist and to enforce laws, no one has any duty to obey the laws because they are laws. In that case, we’d have legitimacy without authority. In fact, following Simmons’s seminal work debunking authority, this seems to be the dominant position in political philosophy right now. Some governments have legitimacy as I define it, but none have authority as I define it.

So, one problem with invoking authority is that it probably doesn’t exist, period. Simmons thoroughly debunked every extant theory as of the 1990s, and no new theory has emerged that’s particularly plausible. Authority probably doesn’t exist.

What’s more, though, is that even if someone generates a new theory of authority, that person would need to show not merely that some government agencies are in general authoritative, or that some agents are in general authoritative. He’d have to show specifically that governments agents are authoritative in the very contexts where it would be permissible to kill them, if only they were civilians.

Thus, anyone who wants to defend the Special Immunity Thesis on the basis of authority has a double burden. First, it’s not clear that democratic governments have any authority, period. So, the person must produce a good theory of general democratic authority. Second, that person must show that this theory justifies granting democratic officials the 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 take an obvious case: 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 should be able kill him in self-defense. Now, perhaps someone will someday prove the correct theory of democratic authority says otherwise—that she in fact cannot defend herself and must let the president rape her—but until I see a compelling argument for such a theory, I’d regard that implication as a reductio of any possible theory.

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 possible 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 they lack good grounds to nuke Tuvalu. 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 for no good reason. But at least until I see the compelling argument for such a theory, I’d regard it as a reductio of any purported theory of authority that it had this implication.

Thus, suppose someone objected, “It is wrong to kill the police officer who is shooting at the children in the minivan because he authority.” Perhaps in general civilians should defer to police officers. But this is irrelevant. The objector needs to show that one must defer to the police officer not just in general, but in this particular instance. Even if the government is legitimate and authoritative, even if the police are a legitimate and generally authoritative government branch, and even if that particular police officer legitimately holds his office and is generally authoritative, it does not follow that the police officer has the specific authority to shoot the children in this case. The objector needs to prove that the police officer has the specific authority to kill the children.