Bookshelf Think

Fighting Back Against the State

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Jason Brennan’s When All Else Fails makes a rigorous argument that our right to self-defence and to defend others applies even against violence committed by the state.

A few weeks ago, I recorded a couple of episodes of my podcast, The Seen and the Unseen, with the historian Ramachandra Guha. (You can listen here: 1,2.) The subject of those episodes was Mahatma Gandhi, and one question I asked Guha late in the second episode was about how Gandhi, who fought the oppression of the Colonial British empire so valiantly, would have responded to the oppressive Indian state today. There were follow-up questions I did not ask: Would Gandhi have felt that it was not a moral imperative to resist those in authority, even in a democratic country like India? And if so, how would he have resisted? Would he insist on non-violence (or passive resistance) as he had done against the British?

I thought of Gandhi when I came across Jason Brennan’s excellent new book, When All Else Fails: The Ethics of Resistance to State Injustice. The economist AO Hirschman once said that citizens of democracies can respond to wrongdoing by their governments in three ways: they may leave, complain or comply. Brennan’s book argues persuasively that there is a fourth option: to resist. Not just that: we have an equal right to resist the wrongdoing of the state as we do to resist any wrongdoing.

Here’s a situation Brennan presents before the reader early in the book:

A masked man emerges from a black van holding a rifle. He starts shooting at children in a public park. Ann, a bystander, has a gun.

How should Ann react to save the lives of the children from the attacker? Does she have a moral duty to intervene (contingent, of course, on practical considerations of her own safety)?

And now, how about this situation:

Ann witnesses a police officer stop a minivan with a female driver and three children in the back. Ann sees that the driver has nothing in her hands and her hands are on the steering wheel. The police officer emerges from his car and starts shooting at the van’s windows. Ann has a gun.

How should Ann react now? If she had a duty to intervene in the previous, analogous example, does she have the same duty now? Or is it diminished or invalidated by the fact that the assaulter in this second example wears a uniform and represents the only entity that has a legitimate monopoly on violence: the state?

Brennan argues that our right to self-defence, and to defend others, is identical whether the wrongdoer is a civilian or a servant of the state. When All Else Fails is a book-length philosophical argument against what Brennan calls “the standard view, that almost everyone of every ideology seems to accept, … that government agents are surrounded by a kind of magic moral force field.” Brennan is puzzled at the view that “my neighbours can eliminate my right of self-defence or the defence of others by granting someone an office.”

Brennan’s book revolves around two theses. The first is one that summarises the prevailing view, which Brennan argues against:

The Special Immunity Thesis: Government Agents—or at least the agents of democratic governments—enjoy a special immunity against being deceived, lied to, sabotaged, attacked, or killed in self-defence or the defence of others. Government property enjoys a special immunity against being damaged, sabotaged, or destroyed. The set of conditions under which it is permissible, in self-defence or the defence of others, to deceive, lie to, sabotage, or use force against a government agent (acting ex-officio), or destroy government property, is much more stringent as well as tightly constrained than the set of conditions under which it is permissible to deceive, lie to, sabotage, attack, or kill a private civilian, or destroy private property.

And the second, which Brennan argues for:

The Moral Parity Thesis: The conditions under which a person may, in self-defence or the defence of others, deceive, lie to, sabotage, attack, or kill a fellow civilian, or destroy private property, are also conditions under which a civilian may do the same to a government agent (acting ex officio) or government property.

The first step here is to examine, to begin with, the right to self-defence. Most reasonable people would agree that such a right exists, and Brennan lays out its contours, as expressed in common law, which, as Brennan points out, “tracks and codifies people’s commonsense moral intuitions.” There are a number of commonly accepted provisos to killing in self-defence, for example: the threat of harm being severe enough; the danger being imminent; the killer having “a reasonable belief that deadly force is necessary to protect herself”; there being no other means of defence available; and the proportionality requirement, that the defensive action is not out of whack of the crime being committed. (Would you kill an unarmed person trying to pick your pocket?)

But do these apply when the state (via agents of the state) is the party you are up against?

The “special moral status” that governments have derive from the beliefs that “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.” These terms need to be examined.

Brennan defines these two “moral powers” thus:

  1. The permission to create and enforce rules over certain people within a geographic area.

  2. The ability to create in others a certain moral obligation to obey those rules.”

The first is legitimacy, the second is authority. It could be said that a democratic government that has been brought to power in a constitutional democracy has legitimacy – but does it have the authority to stop us from say, smoking marijuana? Do we have a duty to obey all of a government’s commands?

An analogy Brennan uses to illustrate the difference between these terms:

One way to illustrate this is to think of a boxing match. In a boxing match, both boxers have permission to punch each other. We might thus say that in a boxing match, punching is legitimate. But neither boxer has an obligation to let the other hit him. Each boxer can feel free to duck, block and evade the other’s punches. So neither boxer has the authority to punch, though punches are legitimate. So it might conceivably be with government: perhaps certain governments legitimately create and enforce rules, but no one has a duty to obey those governments.

There are a number of prominent theories that argue that a government has authority, and Brennan tackles the main ones here. For example, consent theory, including both ‘actual consent’ and ‘hypothetical consent’. Social contract theories fall into these, and when the social contract is invoked in any argument that I am in, my usual response is to snap, ‘I didn’t sign any contract.’ Brennan is somewhat more eloquent in his demolition, and his philosophical rigour is accompanied by pithy quips like “Our relationship to government is no more analogous to a consensual contract than a red elephant is analogous to the number three.”

Brennan also discusses HLA Hart’s ‘Fair Play Theory’, and readers interested in a comprehensive discussion of these theories can turn to another book I enjoyed after reading about it in Brennan’s book, The Problem of Political Authority by Michael Huemer.

Before I began reading When All Else Fails, I could instinctively think of two objections to Brennan’s thesis. One, an epistemic problem: If we make it acceptable for civilians to respond violently to perceived injustice, then we run the risk of people making misjudgements purely from lack of knowledge. Take this hypothetical case that Brennan provides:

Walker is president. He initiates what is clearly an unjust war, though many people unreasonably believe it to be just. Under his command, the government kills tens of thousands of innocent civilians and soldiers in foreign countries. Thousands of domestic troops die in vain fighting Walker’s wars. The war destroys massive amounts of property and wealth. Tens of thousands of civilians die from the war’s fallout. Walker now plans to initiate another unjust war of the same sort in another country. Ann tries to use peaceful means to stop the war, but these fail. Ann intervenes. She kills Walker with a sniper rifle. As a result, this stops the next war, since Walker’s successor is less belligerent.

By Brennan’s argument, Ann is justified in killing the president here. I am not so sure, because there is a knowledge problem here. Neither Walker not Ann can fully calibrate the consequences of Walker’s actions, but Ann undoubtedly has less information with which to make an informed decision. If every conspiracy theorist felt that there was social sanction to act on her violent beliefs, we’d have a problem.

My second objection was a normative one. Except for those of my fellow libertarians who are anarchists, most of us would agree that we need a minimal state, for all the coercion that entails, to protect our rights. In a society where there are mechanisms to ensure that any government is legitimate, as there more or less are in democracies like India and the US, we should also behave as if the government has authority (even if it philosophically doesn’t, as Brennan and Huemer argue convincingly). No government (or agent of the government) should ever have complete carte blanche, of course, but the bar to object should be slightly higher than for a normal citizen.

These were my intuitive objections before beginning the book, but Brennan is comprehensive and rigorous, and addresses them both, among many others. Addressing the epistemic argument in the context of utilitarianism, for example, he writes:

Utilitarian moral theories all claim that what makes actions right or wrong is in some ways a function of their actual or expected consequences. But as many critics claim, applying utilitarianism is too hard for the common person, in part because most people don’t know enough to determine what the likely consequences of their actions will be. Even if so, this does not invalidate utilitarianism. Even if everyone consistently misapplied utilitarianism, this would not show the theory is false. (My italics.)

I concede that point—but is there much good of a theory being true if it is impossible to apply? Does Ann know enough to kill Walker? (In theory, she could, but does she, or even can she?)

That said, I began the book certain that my objections were insurmountable, and Brennan’s rigorous and comprehensive arguments have ensured that I am no longer so sure. That is just what one should expect from a book of philosophy: not that it converts you to its point of view, but that it takes your own thinking further, forcing you towards both depth and clarity. For anyone interested in this subject—and you must be if you’ve read so much of this review—should read this excellent book. You will find in it all the arguments you need to evade taxes with a clear conscience—even though I pay mine dutifully, for I might be principled, but I’m also a coward.

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About the author

Amit Varma

Amit Varma is a writer based in Mumbai. A journalist for a decade-and-a-half, he won the Bastiat Prize for Journalism in 2007 and 2015. He writes the blog India Uncut, and hosts the podcast, The Seen and the Unseen. He is the editor of Pragati.