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.
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.
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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?
Yes. As it should be.
In your hypothetical, the police violated the law and Castile’s Constitutional rights. At that point, the girlfriend could have reasonably determined that her life was in imminent danger of being a victim of great bodily injury since police just shot Castile for no legal reason.
It is worse than that, Castile was shot for honestly complying with Yanez and giving him an answer that triggered Yanez’s cowardice.
And in Texas, It is further complicated by the fact that the castle law extends to your vehicle.
” since police just shot Castile for no legal reason.”
This is exactly what really happened in the real world when Castile was shot.
You are missing the point of they hypothetical. The hypothetical is not about what the police did, but about how Castile’s girlfriend reacted.
Did you miss the 1st part of the sentence that you are quoting?
Too bad the ACLU has sold its integrity to be hacks for the Lefties trying to undermine the Constitution.
The ACLU has only had any integrity sporadically. It was started as a Progressive organization, with Progressive ends. It deviates from that political agenda from time to time, but not often.
Civil society… social contract… not the Wild West… yadda yadda yadda…
speaking of Wild West, response times in Dallas are 90 minutes right now. don’t show up unarmed.
Yes, she has that right. I don’t think I’d advise her to exercise it, though, unless she was really convinced that her death or that of her child was the only alternative.
Agreed; when someone decides to be a “cop killer” albeit for “morally justifiable reasons” it is highly unlikely they will survive, and even if they do get by every officer in town looking to put them in literal cross hairs, their legal outcome does not bode well for them either.
Of course these types of decisions must be made instantaneously in the midst of sudden and deadly violence, so it’s not like you can consider the alternatives when you are faced with something like this. I suppose you can only say what the police do, in that her were in genuine fear for your life and acted accordingly within the constraints that were imposed on you.
This.
Killing a cop, even if you are 100% justified, will never end well for you. Your moral victory will be enjoyed from an early grave.
As a moral matter, Reynolds would have been justified to use deadly force. As a legal and practical matter, it would get her jailed or killed.
While unjust laws are a problem. A person deliberately intending to sabotage the working of enforcement from the inside is perhaps the worst way to combat the problem as it makes the law more arbitrary and generally lowers trust in society being governed.
It is not that Brennen is completely wrong, his suggestions are better theoretical constructs that have terrible secondary effects if used in the real world.
Shooting cops – for “justice!” – isn’t going to make cops less likely to shoot people. You could reasonably, probably, assume the opposite.
The guy delivering your pizza has a greater chance of being killed on the job than a police officer. Yet cops are in a constant state of fear, believing there is a war against them. I don’t want to imagine how cops would behave if their job actually became dangerous.
Talk show guy yesterday was decrying the “alarming” drop in police employment applications and stated the job was so dangerous that the starting salary should be at least $75,000 nationwide.
“Talk show guy” is an idiot who has no idea what he’s talking about.
And that applies to every talk show guy on any media at any time, thank you.
From Jimmy Kimmel to drive at 5 shock jock.
The starting salary around here is $35K, but that’s misleading. The average cop starts off making twice that. Being a cop isn’t a job. It’s a lifestyle. They live for their job. They’d do it for free just for the power. Between time and a half for overtime and double time for holidays and special work, they easily double their base pay.
Billboards here say $58k. Not that it’s helped attract people who won’t shoot homeless people for no reason.
No reason? Did they obey?
No one can obey APD fast enough. Especially not crazy homeless people.
Shooting cops who have clearly exceeded their authority is becoming an increasingly obvious necessity. They are all too rarely punished for actions that would have an average citizen jailed for long periods. It looks, more and more, as if the only way to obtain meaningful reform is to face the political establishment with an even less palatable alternative.
Shooting cops won’t lead to anything other than more militarized, more trigger happy, more dissociated cops.
They aren’t the ones that need shooting.
It’s the political class that’s the problem. Maybe start with prosecutors and work your way up.
Cops are pawns of state power.
Like any civilian, police officers need to be held accountable for their mistakes
Haaaaaaaaaaa ha ha ha ha ha! Cops being held accountable? You fucking serious? Haaaaaaaa ha ha ha! Being a policeman in America means you can literally do whatever you want! If anyone tries to stop you you can beat the shit out of them or kill them! Mistakes? When you can kill anyone who argues with you then as a practical matter you cannot make mistakes! You are a god!
Did Diamond Reynolds have the right that summer night in Minnesota to use deadly force to defend herself…
Yer fuckin A right she does.
So we can conclude Kim Davis did nothing wrong, then?
Kim Davis was interfering with other people’s lives based on her belief system. So, she was definitely doing wrong. She should have resigned her position and gotten a job that doesn’t conflict with her beliefs.
People taking jobs that require them to act in ways that are contrary to their beliefs goes against Brennan’s thesis. Or does disobedience by bureaucrats only apply when you do not like the law being enforced?
So she should have just resigned and said why.
Resigning is one course of action. Brennan is advocating that executive branch officials have a moral justification to actively undermine laws they have a moral disagreement with on their own judgement.
The question I have is: who decides when that is appropriate? Because if you give that kind of discretion to each bureaucrat, you may not like what sorts of things they have moral disagreements with.
Sure. The article addresses that in paragraph 12 (starts with “Brennan understands the gravity of what he’s proposing [?]”), so his book probably tackles the subject at least a little.
But yes, the lack of objective morality would be, I think, a major problem with his thesis regarding what people should do when they think the system is immoral.
Except the article describes objections to Brennan’s idea as “pearl clutching”, so I have my doubts that Brennan or Harwood has the self-awareness that people who would disobey might be applying a different moral standard than theirs
Ah.
Well, if we’re at the point of speculation on the mental state of the author and their self-awareness, I’m going to tap out as I have no interest in speculating on such, and my interest in this topic isn’t great enough to buy the book.
Isn’t that the point of savaging things from the inside? Don’t we all ascribe right and wrongness of behavior based on our individual belief system?
Well, that gets to a major problem with Brennan’s thesis.
His “uncivil disobedience” only works if you’re doing so morally. Now, maybe his book goes into that particular topic more on how you can know if your intents are moral or corrupt, but from this article it doesn’t look like it, sticking to topics that are (relatively speaking) safe.
Which is to say, it’s all on a scale.
Defying duly enacted legislation to expose government conspiracy to cover-up human rights violations? Lots of consensus on that.
Defying duly appointed authority and firing back at a cop who is unjustly firing at you? Less consensus, but many folk will still recognize that.
Ignoring federal marijuana law and growing some on your property anyway? Less consensus, but still pretty reasonable.
Assaulting a federal officer who is about to enforce said federal marijuana law but is not out to murder you? This is where you’re losing a lot of people.
Imposing your religious values on other people by refusing to process their paperwork? You’ve lost most folks.
So yeah. Brennan’s thesis totally defends Davis. But like all the rest, it depends on being “right”. But since objective morality is unknowable even if it exists, that means it’ll always be a gamble.
Now me? I don’t think she was right, so I won’t agree that she was justified. She obviously feels differently. And that’s why we have laws, rather then depending on individual senses of morality.
But Brennan is giving carte blanc to each individual bureaucrat to decide for themselves what laws are moral and they will not enforce. A government that operates on such a principle has abandoned the rule of law and the people’s sovereignty unless there is a strong consensus on what is moral that an individuals is loathe to deviate from except in extreme circumstances.
Yes, but the practical application is the rub, is it not? This sort of behavior by government officials cannot be an acceptable norm rather than in extreme circumstances. Which was why I think in theory it is not objectionnable, in practice it is fraught with problems.
Given that an imperfect world without a knowable objective morality will always have unjust laws, which is more “fraught with problems”: the cop that enforces unjust laws, or the cop that looks the there way when they can?
Arbitrary enforcement is a problem, as well as the descriptor “unjust” is begging the question.
The question is not “is arbitrary enforcement of an unjust law is a problem?”
The question is “is arbitrary enforcement of an unjust law a worse problem then constant enforcement?”
And fair warning, if you’re serious about wanting me to justify the assumption that some laws are unjust, I’m just going to dismiss you as unserious and Godwin this conversation.
No, it justifying which particular laws are unjust. Everyone thinks some law is unjust, there is not agreement on which ones are unjust.
As well as arbitrary enforcement violates equality under law and undermines consensus on changing bad laws.
If everyone operates on the idea that procedures must be followed on laws that I agree with and procedures should not be followed on laws that I disagree with, then that is a formula for a low trust society. Low trust societies contrarily turn to even more profusion of law.
Yes. I think the long term result is worse.
Before I continue, I have a quick question.
Have you argued in the past that people should not seek judicial relief from bad laws, that the proper place they should seek such relief from is legislatures and other law-makers? It’s a common refrain around here, so I can’t be sure if I’m correctly lumping you in with that crowd or not.
I believe people have recourse to the courts for relief from unconstitutional laws based on original intent. Relief from bad laws that are constitutional have to come through the democratic process.
Gotcha.
One final question.
Given that you think duly enacted laws, even duly enacted unjust laws, should be enforced, and given that you think the best way to undo such laws to enforce them as strictly as possible… why shouldn’t I Godwin this whole conversation and say that you would have given over your Jewish neighbors to the SS?
Reporting Jews to the SS is clearly unconstitutional
Well, I guess the act of reporting he’s wouldn’t be unconstitutional, but the compulsion by the state to do so clearly is
*Jews, not he’s
You missed that I wrote that under extreme circumstances not enforcing the law can be justified. Having non enforcement by each government official’s personal decision become a normal, standard practice is not a healthy development. And there are other ways to deal with it, like resigning in protest,
@Nardz
The Trail of Tears begs to differ.
@Mickey Rat
You’ve already made it very clear that you don’t think people should make the decision, for themselves, whether or not a law should be enforced. Having said that, you’re now saying that in “extreme circumstances” they can? How are they supposed to determine if something is “extreme circumstances” without using their own judgement?
“A government that operates on such a principle has abandoned the rule of law”
There is no “rule of law” and there never has been, the “rule of law” is a myth.
If that is true then you might as well hoist the jolly roger and join the band of thugs you think is best going to protect your interests and equality under law and consent of the governed be damned.
We live in a system that is run by the consent of the governed? The huge unelected administrative state that runs most things in the government is evidence against that. Ditto for much of the judiciary. Elected officials often go against the majority. See: Obamacare.
Also, you presume a lot of people will act against laws, regulations, police, etc., if we follow Brennan’s approach. I don’t know about that. I think most people would just go along with the government because they don’t know enough or care enough to oppose injustices, or they are too chicken to do so.
We might disagree on the details – and the devil is in the details – but we need more pushback of some kind against the government for the many injustices it commits.
By the way, I don’t think that it is certain how government would react if people pushed back more. Serious incidents would create a lot of bad publicity about things the government is doing that most people don’t know about. If the government retaliates more harshly, it might calls a much broader reaction against the government. Think: Edmund Pettus bridge, 1965.
Think about asset forfeiture, eminent domain abuse, and police shootings. We have been reading about them in Reason for a couple of decades but they have made significant headlines nationally only in the last several years. Pushback like Brennan describes would have brought these problems to public attention much sooner.
Discussion topic: New London, Connecticut, tells Suzette Kelo they’re coming to take her house (to give to give to a politically connected corporation) and she has to get out. She tells the city she has several loaded rifles and will defend her property from confiscation (a nice word for theft). What happens next?
Sure sign we have too many laws.
Wow this is wrong and moronic. If you have a gun at a traffic stop then put your hands on the wheel and don’t let go for at least an hour. Then you won’t get killed. If they didn’t teach you this at your gun safety class then you need to go back and demand a refund. Also don’t get in a car with someone who has a gun and if your parents didn’t teach you this then you need to sue them for fraud.
The cops are just doing the job we hired them to do. If you don’t want to go to prison for drug possession then fight against the drug addiction religion that is used to justify this human rights atrocity. Otherwise you have only yourself to blame. A lot of the people who go to prison for drugs often come out with a ‘certification’ to teach drug addiction to a new crop of vulnerable kids – and the new “First Step” law will only incentivize this problem. Again, you have only yourselves to blame.
As for the Holocaust example, I just watched Schindler’s List yesterday for the first time (it has been re-released in theaters after 25 years). What they don’t tell you is how the victims peddled offensive socialist propaganda that made them hated. Also they betrayed each other to the Nazis, which actually they depicted extensively.
“The cops are just doing the job we hired them to do.”
I don’t remember conducting a job interview for any cop, much less doing so along with you.
Wow this is wrong and moronic. If you have a gun at a traffic stop then put your hands on the wheel and don’t let go for at least an hour. Then you won’t get killed.
Castile didn’t “go for his gun”, moron; He told the cop, when asked, that he had one. Then he got shot.
Also don’t get in a car with someone who has a gun[.]
Fuck off, slaver.
The cops are just doing the job we hired them to do.
Go fuck yourself, as hard as you possibly can, in the ear, with a sharpened piece of rusty rebar.
For your own sake – if you get stopped by a cop then put your hands on the wheel and don’t let go until you are given explicit permission. And watch the cop’s face the whole time. At least, don’t let go of the wheel and turn your head and then say I didn’t warn you about what would happen. #livebythegundiebythegun
I do always keep my hands on the wheel when pulled over. And yes, I ask for permission to reach for my wallet.
And… how am I supposed to watch the cop’s face without turning my head?
Mirrors.
I admit to being confused about who is (like OBL) and who is not (like John) in constant sarc mode on this forum. Which oeuvre is Double JJ using?
Poe’s law rules here; it’s often hard to tell the difference.
You people really need to demand a refund from your gun safety training courses. Or at least they need to change the name to “How to get shot by a cop at a traffic stop”.
you people?
You cishet shitlords, I think.
When I secured my concealed carry permit I got a vinyl card thing [like insurance agents give away] and put all of my car crap in there including registration and insurance; its kept in a blank space above my car radio; that way if I am pulled over and I comply with my State law to inform the officer that I have a permit [hint: they already know from your plates so best to play along, as the first thing they do will be to determine if you are a good citizen, or not] I only need to pull out my wallet with my license; by the time they are at my door my hands will be glued to the steering wheel and what they want will be on the dash in front of me.
That is the best I can think to do to minimize my odds of being wasted [along with not drinking and driving or giving anyone obvious cause to give me grief]; if the cop does decide to shoot me I’ll be in a hell of a position to do anything about it as the circumstances yield all of the advantages to him, or her [fuck PC pronouns]. If they miss and give me any opportunity I will have to shoot back, as I will not be giving them any reason for attacking me. In that case better to be judged by 12 than carried by 6.
I don’t recognize the screenname. Is this guy serious?
I mean, the first two paragraphs are pretty stock and trade. Even if you don’t agree with them, they’re not really out there. The third paragraph is the one that made me stop and question the sincerity here. But there are folks that genuinely think this shit, so I can’t say.
So parody or sincerity? I can’t tell with this one. I don’t even know which way to lean.
Now this is the sort of article I like to see at Reason.
I’m not sure which is more surprising: that someone from the ACLU wrote favorably about a libertarian position, or that Reason published it.
I agree with the concept in general, but there are two major problems.
One is simply that the State does not like being messed with. Your chances of a happy outcome are pretty damned low. The State will shoot first and ask questions later. Good luck getting the State to pay any attention to your safety while it avenges itself.
Two is that very seldom with the State’s agents screw up so badly that bystanders will understand that the State’s agent is the bad guy. Bystanders’ memories will be colored by the presumptively good State’s agent was gunned down by some presumptively bad dude. You will need extraordinary evidence to make your case, and because the State does not like being messed with, they are going to go out of their way to suppress your evidence and have massive public support on their side initially. Good luck surviving until the truth comes out.
Remember that cop-gone-bad in Los Angeles, where the pickup was shot to hell in spite of being the wrong color, make, model, and license plate, and was occupied by two women instead of one large male? Everyone knew, and speculated publicly, that no matter how good a case that rogue cop had, he would never live long enough to make it public. Sure enough, when the cops found him, he had no chance to surrender.
The only way to get around this is make all police independent agents, not agents of the State. Get rid of State prosecutors and State judges. Allow, nay require, victims to prosecute their own claims, and allow anyone to be a cop for themselves or for hire. People will quickly sort out the good cops from the abusive ones, separate them into good investigators, brute force process servers, alert guards, and other categories. Police who normally are competitors will of course band together when any of their kind is assaulted or killed, but they will not have the power and lust of the State behind them, and there will be enough independent cops to keep the rogue ones under control.
Markets sort out all sorts of problems with products and services. Cops and lawyers and judges are just services, and markets will sort them out too. It is State monopoly and State coercion which fucks up the justice system, just as it fucks up everything else.
interesting. absolutely she does.
There was an actual case a few years ago where a home owner shot and killed a police officer in Texas. He was tried and acquitted. His defense was self-defense. I don’t remember the details of the case: it was something like the cops kicked his door in and the guy thought (legitimately) that he was being robber/home invaded and shot the cop dead.
So, it does happen. But you are risking your life if you “resist”.
Well, what else could she have done? Sat there & be slaughtered, as she was in our world?
Last I heard, she was still alive. What are you talking about?
How could she have stayed alive in company like that? Only last I heard it wasn’t clear whether she was shot by the cop or her 4 YO.
On the off-chance you’re not a troll…
The hypothetical was strictly “what if she had shot back?”. What actually happened is she sat there and streamed the aftermath on Facebook in horror. She’s still alive and the four-year-old is older now.
There is no god but Man.
Man has the right to live by his own Law.
Man has the right to live in the way that he wills to do.
Man has the right to dress as he wills to do.
Man has the right to dwell where he wills to dwell.
Man has the right to move as he will on the face of the earth.
Man has the right to eat what he will.
Man has the right to drink what he will.
Man has the right to think as he will.
Man has the right to speak as he will.
Man has the right to write as he will.
Man has the right to mold as he will.
Man has the right to paint as he will.
Man has the right to carve as he will.
Man has the right to work as he will.
Man has the right to rest as he will.
Man has the right to love as he will, when, where and whom he will.
Man has the right to die when and how he will.
Man has the right to kill those who would thwart these rights.
Whether it’s a right or not, actively engaging in a firefight with a SWAT team is a lot more likely to get you and your family killed than compliance. It’s one thing to not realize that it’s the police, but to understand that it is the police and start shooting at them in the name of “self-defense” is foolish.
Nothing hypothetical about it. This is how we do in Texas: https://youtu.be/b4HOBQv6SeE
Word
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