Law professor Simone Sepe reviews When All Else Fails at NDPR. The review is thorough, but unfortunately for Sepe and fortunately for me, the main “critique” of the book misses the mark rather widely. The way it does so is of broader interest, I think, because it illustrates some common failings in statist-authoritarian philosophy.

Sepe says:

The basic difficulty with Brennan’s discussion, however, lies in his defense of the moral parity thesis (and correspondingly his criticism of the special immunity thesis), which rests on a too quick dismissal of government legitimacy and a poor understanding of the coordination problems that would follow under a defensive ethics system. It is true that my criticism is dispelled when brutal dictatorships provide the foundation of government legitimacy, an extreme case in which I share Brennan’s rejection of the special immunity thesis. But Brennan seems to focus on democratic regimes rather than dictatorships. Under this assumption, I further argue that defensive lying, in particular, could jeopardize the functioning of democracy by negating the value of the rule of law.

Brennan offers a radical critique of the theories of government legitimacy. This critique, however, is arbitrarily narrow. He mainly focuses on classic social contract theory, while downplaying the importance of more modern accounts of the theory. He considers only Hart and explicit contract views, while virtually ignoring implied consent theories or pragmatic theories à la Joseph Raz and Allen Buchanan.

Sepe is correct that I do not respond to these and certain other theories of legitimacy. However, despite my repeated heavy-handed attempts to explain the dialectic, he misses the point of what’s going on here. His ensuing counter-arguments are largely irrelevant.

Chapter 3 notes that one possible argument for Special Immunity is that governments enjoy legitimacy and authority. I respond in the following way:

First, to be more precise, only authority matters here, not legitimacy. “Legitimacy” refers to the permission to violently enforce certain rules and orders. “Authority” refers to a purported moral power to induce in others a duty to obey and defer. The issue at hand is whether you have a duty to obey and defer in the cases of severe government injustice I discuss in the book.

Second, I say one problem with this line of argument (governments -> authority -> special immunity) is that it’s unclear whether any governments have authority, period. All the major theories of government authority are subject to clear and powerful *known* objections. Few people accept any of these theories other than philosophers produced them and a few of their graduate students. I expect professional theorists to know this is the state of the field. However, because I have lay readers, too, I reviewed and critiqued some of the more popular theories. But I tell philosophers I’m not going to do a 300-page systematic critique of all the extant major theories, because that’s already been done. The fact that every major theory of authority is somewhere between obviously false to at best deeply problematic is at least presumptive reason to think maybe governments don’t have authority at all. That very smart people have spent 2500 years trying and it seems failing to prove governments have authority is good reason to suspect they don’t.

But I don’t end there, and here’s where Sepe’s criticism swings and misses. I say that even if it turns out that governments have some general kind of authority, e.g., the authority to collect certain taxes to pay for actually justified public goods or to set speed limits within reasonable parameters, none of that will help prove the Special Immunity Thesis. The problem–a problem which most modern theorists ignore (David Estlund is one notable exception)–is that you can’t just do that. Authority is not all or nothing; it’s not that governments either lack authority or have complete authority over everything.

Rather, the defender of special immunity must show why governments specifically have the authority to commit severe injustices. Sepe needs to explain specifically why any given theory of authority implies we must obey and submit when the government chokes Eric Garner to death, throws a smoke bomb at a toddler’s face, raids the wrong house, starts an unjust war, drone strikes pine nut farmers, ignores the Constitution and engages in mass surveillance of Americans, forbids you from smoking pot, rape a teenage girl in police custody, and so on. It’s not enough to show governments have the authority to require us to comply with various useful and just rules; you need to show they have the specific authority to require us to submit to these injustices. Further, if a given theory does indeed imply we must submit when the government does these thing, we need to know why we should accept this conclusion rather than regard it as a reductio of that theory.

Sepe ignores this point, which is both vital to my argument and vital to him, if he wants to critique my book.

Here’s part of I wrote in the book:

Anyone who wants to defend the Special Immunity Thesis on the basis of government 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 the specific authority to commit severe injustices, the kinds of injustices where we could justifiably use violence, subterfuge, or deception against civilians if the civilians were to try to commit them.

 To illustrate this burden: Imagine Bill is the lawfully elected president. Suppose Bill is the authoritative President of what is overall an authoritative regime. But now imagine Bill demands sex from an intern. It seems obvious that even if Bill is authoritative overall, he does not have the authority to demand sex from interns. She has no duty to comply with his demands. Should he try to force her to have sex, she may, if necessary, use violence (including deadly violence) to protect herself. 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 the intern must submit to Bill’s demand for sex.

But that seems like an easy case, because Bill was not acting ex officio, in his capacity as president. So let’s look at another case. 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 specifically 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. 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, I’d regard it as a reductio of any purported theory of authority that it implied this. 

So, invoking general government authority is not enough to justify the Special Immunity Thesis. Someone trying to defend Special Immunity on the basis of authority faces a double burden. The objector must not only show that democratic governments have a kind of general authority, but must specifically show that democratic governments have authority to commit great injustices and severe harms, the kinds of injustices and harms that would otherwise make the actor liable to be deceived, attacked, or killed.

Sepe makes no attempt to discharge the second half of this burden of proof, and so his criticisms miss. A good test of a critique is this: If you had gotten to read the critique before writing your own work, would you have written that work differently. In this case, no, Sepe doesn’t provide a reason to revise the book.

Sepe accuses me of not engaging with modern social contract theory. (I don’t, for the reasons specified above.) A fortiori, I think he has also failed to engage with modern social contract theory in a way that hurts his argument. The problem is that the theories he mentions in the second half of his critique haven’t even attempted to overcome the challenge I laid out–justifying the authority to commit severe injustice.

For instance, he mentions Christiano’s theory:

But the social contract is not just a matter of consent about individual rights. Rather, it involves consensus regarding the nature of a society’s decision-making process. As Thomas Christiano says, democratic decision making has to be evaluated in terms of the way in which decisions are made. That is, political authority is defensible as long as the process of decision-making treats all of its members with equal respect and the institutions of legislative representation are fair. This conclusion seems directly relevant for Brennan’s defensive ethics discussion, as the democratic principle of equal respect would reduce, if not altogether eliminate, the need for civilian resistance.

Read Christiano’s defense of democracy, and for that matter, read almost any other bit of democratic theory a philosopher has written over the past 60 years. Christiano’s Constitution of Equality is a rather stringent theory. If we take Christiano’s theory seriously, the conclusion is not that you have to submit when American cops decide to rape you or that you may not lie to judges about whether you will you nullify a unjust law. Rather, taking Christiano’s seriously means we should hold that the US government lacks legitimacy and authority. Christiano’s theory says a democracy would be authoritative and legitimate (in various limited ways; he does not show they have the right to commit severe injustice) if (and only if?) certain conditions were met, but then as Christiano himself complains, the US government fails to meet these conditions. This doesn’t imply merely that the government should change and become more just. Rather, it implies the government doesn’t possess the qualifications for Christiano’s theory to hook on and show it has any legitimacy or authority, let alone the specific legitimacy and authority to commit the severe injustices discussed in When All Else Fails. Christiano’s theory + the facts about actual democratic states -> something close to anarchism toward actual democratic states.

This is a rather common mistake. If you read most theories of legitimacy and authority carefully, especially those written by democratic theorists, you find that they at best give you an account of why hypothetical governments that met a variety of conditions could be legitimate and authoritative, but they don’t explain why, say, the actual governments of Canada, the US, Sweden, France, and so on are legitimate and authoritative.