Criminal Justice

Uncivil Disobedience

Jason Brennan argues that there is no moral distinction between civilians and agents of the state, even in the right to resist injustice.


|||Sergey Drozdov/
Sergey Drozdov/

Consider this counterfactual.

At around 9 p.m. on July 6, 2016, Officer Jeronimo Yanez shoots Philando Castile five times at point-blank range during a traffic stop after Castile calmly and voluntarily informs the cop that he has a gun. Diamond Reynolds, Castile's girlfriend in the passenger seat, knows Castile has done nothing wrong. In fear for her life and the life of her four-year-old daughter in the backseat, she grabs the gun from Castile's pocket and shoots Yanez. Yanez's partner, positioned beside Reynolds at the passenger side window, goes for his gun. She shoots him, too.

This hypothetical alternative ending to the Castile tragedy raises an important question: Did Diamond Reynolds have the right that summer night in Minnesota to use deadly force to defend herself, her bullet-riddled boyfriend, and her daughter from Officer Yanez and his partner?

In a provocative and entertaining book, When All Else Fails, the Georgetown philosopher Jason Brennan says yes. People confronted with state agents behaving unjustly have the right to engage in self-defense, from lying to killing the agents, depending on the circumstances. "Government agents," Brennan states plainly, "are due no greater moral defense when they act unjustly than private agents are due."

Brennan understands that most people will consider him at best an irresponsible crank and at worst a violent anarchist. American society, he writes, tends "to assume that government agents are to be held to a lower moral standard than we hold civilians and that government agents enjoy a special immunity against defensive action" (emphasis in original). But Brennan rejects the special immunity thesis and instead advances what he calls the moral parity thesis: "The conditions under which a person may, in self-defense or the defense 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."

Much of the book is Brennan defending his moral parity thesis from challenges, such as the social contract (we consent to government rule), good faith (agents are just doing their jobs as best as they can), and dangerous misapplication (dumb people will make terrible mistakes). Brennan deftly knocks down these objections one by one. No objection to the moral parity thesis works, he demonstrates, because no one can "identify a principled distinction between government and nongovernmental wrongdoing." In other words, citizens of democratic governments have foolishly granted special privileges to government agents and officials to engage in the precise aggressions that would open any one of us plebs to defensive action if we behaved similarly against another person.

The implications of Brennan's thesis have consequences that would make most Americans uncomfortable if not downright aghast, regardless of their political persuasion. Progressives will react negatively to Brennan's argument that businesses "may lie about their compliance with wrongful or punitive regulations" or that people "may engage in tax evasion to avoid unjust taxes." Conservatives will clutch their pearls at his claims that people "may join the military or a government bureaucracy in order to sabotage some of its operations from within" and that it is "permissible to find, steal, and publicize certain state secrets, such as some, if not all, the secrets Julian Assange, Edward Snowden, or Chelsea Manning revealed."

What makes Brennan's moral parity thesis so radical is that he doesn't fetishize democracy. (This shouldn't be surprising for people familiar with his work—one recent book of his was titled Against Democracy.) When All Else Fails argues persuasively that even if a government agent or official is part of a popularly elected democratic regime, this doesn't magically confer immunity from defensive action when the agent or official engages in unjust, immoral actions.

Not many people would think twice about the morality of a German homeowner resisting, or even killing, an S.S. agent who discovered a Jewish family hiding in her attic during the Holocaust. But what about the marijuana user who knows that the approaching officer will arrest her for violating democratically passed drug possession laws and that, if convicted, her priors mean she will spend the next decade behind bars? According to Brennan, she has the right to knock the cop unconscious and successfully elude arrest.

Even more provocatively, Brennan believes the cop is morally culpable and thus a legitimate target for defensive action because he is enforcing an unjust law that destroys people's lives for voluntarily consuming a plant that the government has outlawed. Wrong is wrong and rights are rights, Brennan says; it doesn't matter if the vast majority of the population thinks otherwise.

Here's another example, this one far removed from the present. Transport yourself back to the 1850s. You're an abolitionist in the North who comes across a sheriff enforcing the Fugitive Slave Act by arresting a slave. You know he's going to send the person back to servitude in the South. The only way to free the slave and to defend yourself during the rescue is to kill the sheriff. Is that justified? Of course it is, Brennan argues, because governments and their agents do not have the right nor the legitimacy nor the authority to commit grave injustices, and thus citizens do not have a duty to obey.

Brennan understands the gravity of what he's proposing. "Lying, deception, sabotage, destruction, and violence are dangerous," writes Brennan. "We should be self-aware and recognize that we are prone to error. We should be aware that defensive actions are morally risky. We should also be aware of our own epistemic uncertainty." In most circumstances that do not rise to the level of incarceration, physical harm, or death, Brennan says, "the best response to injustice is even to suck it up and live with it, or turn the other cheek."

But in fast-moving situations that put them at risk of incarceration, serious physical harm, or death, Brennan argues, people have the right to defend themselves against government aggressors. To take another example from policing: If a SWAT team breaks down my door during a night-time no-knock raid, and I know that I have done nothing wrong, then I have the right to kill the armed intruders—badge or no badge—to protect my home and family. The stakes of inaction or timidity are just too high of a cost to bear. If a police officer dies because of a bad tip or because he got the wrong address, that's on the officer and his department, not me. Like any civilian, police officers need to be held accountable for their mistakes, even if they truly believe they were doing the right thing or following orders. To borrow a phrase from Cool Hand Luke, "Calling it your job don't make it right, boss."

If more Americans woke up to the truth of the moral parity thesis, maybe we could restore some balance to the increasingly despotic interactions between citizens and government agents. Officials, initially, deserve no more or no less respect than the ordinary individual—any privileges given to government actors don't befit a free people. And when they behave unjustly, they should consider that the person they're injuring or the people observing the injustice won't take it lying down and may rightly fight back.

That may well be dangerous, even ill-advised in most circumstances. But it's justice nonetheless.

"When government becomes the enemy, we may protect ourselves," Brennan writes. "Our rights do not disappear because senators voted to ignore them or because a cop is having a bad day." This is common-sense morality, and it speaks volumes that it will likely be seen as the ravings of a madman even as this country's authoritarian drift becomes impossible to ignore.