Resisting State Injustice (with Jason Brennan)

Jason Brennan elaborates on his thesis that “you possess the same right of self defense against government agents as you do against fellow civilians”.

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Resisting State Injustice

Everyone has their own moral judgements and in many cases they can be and are misapplied. Jason Brennan explains how his new book When All Else Fails is not a call to resist all governments, but more of an exposure to how we apply our moral judgements unequally.

What is the rule of self defense? Is it okay to act in self-defense against a government agent? If your government is illegitimate, is it virtuous to resist? What is the moral parity thesis? What is the difference between authority and legitimacy?

Further Reading:

When All Else Fails: The Ethics of Resistance to State Injustice, written by Jason Brennan

The Ethics of Killing in War, written by Jeff McMahan

Against Democracy, written by Jason Brennan

Related Content:

A Moral Pluralist Case for Libertarianism, written Jason Brennan

Against Democracy, Free Thoughts Podcast

Do We Have a Duty to Obey the Government?, Free Thoughts Podcast

00:07 Aaron Ross Powell: Welcome to Free Thoughts. I’m Aaron Powell.

00:09 Trevor Burrus: And I’m Trevor Burrus.

00:10 Aaron Ross Powell: Our guest today is Jason Brennan. He’s the Robert J and Elizabeth Flanagan Family Professor of Strategy, Economics, Ethics and Public Policy, in the McDonough School of Business and Professor of Philosophy at Georgetown University. Today we’re talking about his new book, When All Else Fails: The Ethics of Resistance to State Injustice. Welcome back to Free Thoughts, Jay.

00:30 Jason Brennan: Thanks for having me again.

00:31 Aaron Ross Powell: The thesis of this book is pretty simple. In the beginning you write, “You possess,” you the reader, “possess the same right of self-defense and the same right to defend others, against government agents as you do against civilians. The moral principles governing self-defense against civilians and government agents, even agents who act by virtue of their appointed status and within the law are the same.” So this strikes me as so true as to border on axiomatic. You almost don’t even have to have any other discussion. So thank you for listening. This has been Free Thoughts.

[laughter]

[overlapping conversation]

01:07 Trevor Burrus: There we go. We’re done.

01:10 Aaron Ross Powell: Why write a whole book on this for something that’s just like, “Well, yeah.”

01:15 Jason Brennan: Yeah, absolutely. Well, the kind of people who would be in the room right now are the kind of people to whom that seems like an obvious truth. I think a motivation behind libertarian thinking is a natural tendency to believe that human beings are the same, they have the same moral rights, the same duties all over, and no matter who they are, and no matter which position they occupy in society and that when we create a national border, that doesn’t magically change things. When we create a government agency that doesn’t magically change things. But for most normal people it does. We’re weirdos. And for normal people, that does make a difference. Normal people think that if a police officer is using excessive force against you, say if they’re arresting you for excessive speeding and they use too much force against you and they’re like threatening your life, that’s regrettable, maybe that person should be punished, but you absolutely cannot resist, or only in incredibly extreme circumstances could you resist. So they do think that there is a difference. So this book is, in a sense, starting with the common sense idea of the right of self-defense and the right to defend others that most people have, and then asking, “Is there any reason to make the rules more restrictive when it comes to government agents?” And I argue at the end there isn’t.

02:27 Trevor Burrus: Well, I think most people would probably agree, Nazis, resisting the Nazis was a virtuous act, right? But that is maybe because the Nazi government was seen as illegitimate. So does it matter what our perception of the legitimacy of the regime itself is, that the totalitarian dictatorships or coups or whatever, banana republics, something like this, you can resist them ‘cause they’re really just thugs, but not in America? In America we have a constitution, and we ratified it, and we live under a set of laws.

02:58 Jason Brennan: Yeah, they think that the type of regime they’re under makes a difference. So most people lead… Actually, one of the things that inspired this was a quotation by Andrew Altman and Kit Wellman, where they said, “Surely it would have been okay for someone to assassinate Stalin in the 1930s?” And I read that, and I immediately thought, “Okay, well, that’s true of Stalin. Would it be true of say, Andrew Jackson during the Trail of Tears? When we have the genocidal forced relocation of Native Americans, could you just show up and kill the Army as they’re… Shoot the Army as they’re doing that? And if you have a person about to engage in some sort of horrible injustice with regard to war, can you use violence against them? If it were during World War II, if you could show up and free people from a Japanese internment camp at the expense of killing some American soldiers, is that okay?” And people do tend to think the fact that the regime might overall be legitimate, and overall be democratic, somehow immunizes their agents in a way that non-democratic regimes are not immunized.

03:55 Trevor Burrus: You’re saying that’s not true at all?

03:56 Jason Brennan: I disagree, yeah.

03:57 Trevor Burrus: Is a totalitarian less legitimate than a democracy?

04:01 Jason Brennan: Well, even as a person who down in my heart I’m very sympathetic to anarchism, I think it’s a good research project and that anarchy works better than people think. As a person who thinks that governments are kind of by nature very questionable, even with those sort of anarchist sympathies, I’d still say, “Sure, your typical democratic country is more legitimate than an authoritarian Nazi or Fascist regime. There are degrees of badness and certainly that’s much worse than what we have.”

04:27 Aaron Ross Powell: Looking back, so these questions about would it be okay to assassinate this person, would it be okay to stop this thing? Are all backwards looking. Like, would it be okay to have killed Stalin? Yes. Should you go back in time and kill Hitler? Yes.

04:39 Trevor Burrus: ‘Cause we know what happened.

04:41 Jason Brennan: Yes.

04:43 Aaron Ross Powell: But is that a part of it? Like you could look back and say, “Well, you know, Andrew Jackson did these terrible things.” And so we know in retrospect that he was really bad, and so it would be okay because we kind of know the totality of it. But I wonder how much that thinking changes kind of on the ground, that part of the problem is when you’re there, in the moment you don’t, A, you don’t know the full scope of it, but B, you don’t have kind of the backward looking, like, we can see that this was really evil, all along?

05:12 Jason Brennan: Yeah, well, if anything, and as I say in the book, it’s actually less obvious that you can kill Stalin than it is that you could kill Andrew Jackson, because when you kill a murderous dictator of a totalitarian regime, the response from the regime is often incredibly horrible; a massive terror scare. So, someone, Fanny Kaplan tried to kill John… Not John Lennon, the other Lenin.

[laughter]

[overlapping conversation]

05:32 Jason Brennan: V. I. Lenin. The more evil Lenin. Tried to kill Vladimir Lenin.

05:37 Aaron Ross Powell: Vladimir would be truly an obvious. [chuckle]

05:38 Jason Brennan: Yeah, sorry, I was listening to the Beatles on the way here. Tried to Kill Vladimir Lenin and his result… She failed and then his response was to engage in a massive terror purge and hurt lots and lots of people. Empirically speaking, assassination in democratic governments does not lead to that kind of backlash and that kind of retaliation. But there is an important question here about uncertainty, because in the heat of the moment, when these situations are taking place, you don’t have all the facts. You don’t know what the consequences are and you’re also often uncertain about exactly what is occurring.

06:07 Jason Brennan: But the interesting thing is that if you look at English common law, the common law of self-defense that’s developed over thousands, over not thousands, but over a thousand years of testing people’s moral intuition, and you take people’s common sense views about self-defense and defense against others in civilian cases, there’s already stuff about… And certainly, that’s built in. So a case that I like to use from a law book. You probably had to study this in law school. I had to look it up for this, for writing this. There’s this case where one thug is kind of pushing around another person, this victim, and the victim is scared for his life, and the thug reaches into his pocket and at that point the victim is armed and he pulls out a gun and shoots the thug. It turns out the thug was not reaching for a gun or a weapon, he was reaching for a pack of cigarettes.

06:48 Jason Brennan: This goes to court and the court says, “No, that’s justifiable self-defense because it was reasonable for you.” In fact, reasonable is too strict of a standard here, “But it was justifiable for you to believe that you were in danger of imminent harm, that he was reaching for a weapon, and the uncertainty, the danger of the uncertainty should fall upon the perpetrator. The person who’s initiating the danger is the person who has to bear the consequences and the costs and the risks.” So that’s how common sense moral thinking works. I don’t think there’s gonna be an exception for government agents when they’re acting badly too.

07:18 Trevor Burrus: But by this idea that you’re… Let’s say you were getting hassled by the cops, and they were being extremely violent towards you and you were worried that they might shoot you. And so the cop goes to grab something from his belt, and you think that he’s grabbing his gun and you shoot him. Is that justifiable self-defense? Is that an analogous situation?

07:36 Jason Brennan: Yeah, if they’ve been at the point of really beating the crap out of you, and you think that you are reasonably in fear of your life, and they do something like that where they think you’re like, it’s reasonable for you to think, “This guy might be trying to shoot me or kill me right now,” then yeah, I think it’s justifiable self-defense. Now, when I say that would be justified, keep in mind the law is not going to agree. The law has now carved up a number of exceptions for… As far as the law goes, yes, government agents have special immunity against self-defense. If you do this, they will send a SWAT team to kill you. It’s very imprudent for you to do it. So not only these recommendations are, we’re talking about, is it morally wrong to do so? And I’m like, “No, you don’t owe it to the cop. You have the moral right to engage in this.” But it might often be prudent not to.

08:17 Jason Brennan: So just as an analogy to sort of see that, imagine that, it’s back in high school and I’m just a terrible bully. And I come up to you and I start picking on you and I’m like, “I’m gonna beat you up and take your lunch money.” And you start responding and defending yourself, and then I make a credible threat and I say, “Trevor, if you defend yourself against me, then I’m gonna beat up six more people, alright, so therefore you can’t defend yourself.” Or if you say, “If you defend yourself against me right now, then I’m gonna come back in an hour with a baseball bat and beat the crap out of you.” Well, in light of those credible threats, it might be imprudent and rational for you not to defend yourself, but it’s not clear it changes the moral calculus. It would be weird for you to say, “Well, I owe it to him not to beat him up or not to fight back because he’s so good at retaliating.”

09:00 Aaron Ross Powell: I’m gonna take a step back ‘cause I feel we’ve kind of jumped ahead a bit.

09:04 Trevor Burrus: We’re having a conversation with police officers, yes. Let’s go back a little bit.

09:07 Aaron Ross Powell: So your thesis is that, when moral principles would say it’s okay to engage in self-defense or defense of others, against civilians, it’s also okay in similar circumstances to do it against or to agents of the state. What are these moral principles?

09:27 Jason Brennan: Yeah, so chapter 2 is all about this, and I just kinda give a sketch of what the common sense view is of self-defense. There are details of this theory that people dispute, but the broad theory pretty much everyone accepts. If you’re not a radical pacifist this is what view you probably have. It’s permissible for a defender to defend himself, or others, against an assailant, an attacker, when the assailant or the attacker is about to commit severe harm or severely violate someone’s rights or severely hurt them, and using some sort of defensive action such as lying, destruction of property or violent self-defense is necessary to stop the person from doing that. And then the questions are things like, well, how much justification do you have to have for your belief? What exactly counts as severe enough harm? What counts as the proportional response? And just, how imminent does the harm have to be? And people will debate.

10:24 Jason Brennan: There are some things clearly on either side of those lines. If I tell you right now, Aaron, that I’m gonna plick your nose, it wouldn’t make sense for you to chop off my hand to stop me; that’s disproportionate. So that’s an easy case on one side. If I said I’m gonna chop off your head, it would make sense for you to kill me to stop me. That’s on the other side. There’s hard cases in the middle, but there’s easy cases on both sides.

10:46 Trevor Burrus: And then you bring in the moral parity thesis, which is, does anything about being the government change this? Correct?

10:52 Jason Brennan: Yeah, that’s right. So say, there’s two basic positions on this. The special immunity thesis says that, the principles that govern the right of self-defense or the right to defend others against government injustice are much more tightly constrained than they are when it comes to defending yourself against civilians. The moral parity thesis says that they are the same principles. In fact, strictly speaking, I write the moral parity thesis in a way that allows that maybe you have the actually weaker principles when it comes to government agents, but I just don’t explore that. So one and the same, there’s the same principles for both or are there special restrictions? Do government agents enjoy, what I call, special immunity against defensive action?

11:30 Aaron Ross Powell: See, you do this though within the framework of, what we call common sense morality, so you’re kind of appealing to people’s pre-existing understanding/intuitions. But most people, so maybe the people who would not think that your claim, your central thesis was obviously true, most of them have a basic understanding or an intuition that, that in fact there is something different about the government. And so, how do you argue against that while drawing upon common sense morality?

12:04 Jason Brennan: Yeah. With basically every book I write, honestly, I’m trying to do a… Using common sense moral principles, what’s good about common sense, to defeat what’s bad about common sense. So common sense moral principles about self-defense seem right and then most people also make exceptions for government agents. And what I’m trying to do in this book is show them that they can’t consistently maintain that, something’s gotta go.

12:26 Jason Brennan: And this is pretty common with a lot of philosophy. You take like, say, Robert Nozick, in Anarchy State, and Utopia gives us an argument for why you shouldn’t eat meat, and his argument is based upon, “Hey, you the reader think this. Here’s a bunch of principles you already accept. Here are some examples and once you have those judgments and these examples, it’s unclear why you can justify continuing to eat meat.” So he’s undermining the common sense view that it’s okay to eat meat using other common sense principles people accept, showing there’s an inconsistency and the only way to resolve it perhaps is to jettison the view, “It’s okay to eat meat.” I’m doing something like that with this, “You the reader think this theory of self-defense. You also make an exception for government agents.” So, what I wanna do is very carefully, over a number of chapters go through all the possible things that might explain why there would be a difference and then show that those don’t work.

13:14 Aaron Ross Powell: A lot of this seems to hinge on notions of justice. So we could kind of reframe it as; when someone is behaving in a way that’s sufficiently unjust that it’s permissible to use force to stop them, and it doesn’t matter who that person is. But isn’t it… We tend to think of government as… One of the roles that government plays, and the political process that informs government, is to map out the contours, the rules of justice. And so if we have through this mechanism that we kind of decide what is just, as opposed to just you, Professor Jason Brennan, telling us what your notions of justice are, aren’t we kind of bound by those as opposed to just looking at inconsistencies or intuitions?

14:03 Jason Brennan: Yeah, I think there is a role for government in deciding some aspects of justice, ‘cause there are things like, we have a rule that you shouldn’t exercise reckless… You should be careful and not reckless when you’re driving. But in order to make that rule effective we have to create an artificially bright red line and say, “We’re gonna define that as 65 miles per hour on this road.” And there’s something to be said for making some principles of justice or some rules of social life artificially precise, and government plays that role. So we might say things like, at some point, you forfeit your right to your property when you haven’t used it. How long does that take? We’re just gonna say 30 years, and maybe certain political mechanisms are good for coming up with a way to settle that.

14:45 Jason Brennan: But what I reject is voluntarism about the content of morality. I don’t think that governments through any kind of deliberative process can simply decide what our rights are, and what they aren’t. That there’s a core of what we owe to one another and what rights we have against one another, and what counts as a good or bad state of affairs is not bound up by political fiat, and also, I reject that when it comes to individuals. I’m not saying you the individual can exercise the right of self-defense whenever someone else commits what you consider an injustice, in the same way that I don’t think the French are gods who can create morality from thin air. I don’t think you are either. So rather I’m saying when there’s a violation of the rights that people in fact have, that’s when you can do it.

15:28 Jason Brennan: And in a sense that’s even how the common sense moral principle of self-defense works. There is a thing that counts as harm, and if I’m causing that kind of harm to you then you can defend yourself. It’s not whether you regard it as harm. So I can’t just be like, I really find it harmful when Henry Farrell at Crooked Timber takes yet another swipe at me, he seems to do all the time online for some reason. I don’t what his problem is. So I’m just gonna go beat him up or something. It’s like I don’t get to decide that that counts as a harm. There’s a question of objective harm here. And I think at the end of the day moral theory is gonna have to work that way. If it’s just whatever we decide, then morality is basically bullshit, and we should give it up.

16:05 Trevor Burrus: One of the reasons people might say you shouldn’t go after the cop in the situation we’ve been talking about is because in the difference between some random guy beating someone and then a cop beating someone, is that the random guy’s not a member of an organization that has dispute resolution mechanisms and ways of dealing with that issue in a way that we have come to accept in the Western world. You want due process. You want someone to say to defend themselves and here’s the facts that are [16:34] ____, the police are that organization. Now, as our colleagues Clark Neily and Jay Schweikert write about extensively, it’s very hard to discipline a cop, and we have qualified immunity and all this stuff. But let’s imagine that we had a good functioning system of dealing with bad apples in the government, how does that change this calculation of yours? That you’re supposed to use this alternate dispute resolution mechanism and not something violent or lying, or some sort of assault or something like that.

17:03 Jason Brennan: Yeah, that’s right, but I don’t necessarily think it takes a difference between government and non-government agents, except for maybe a factual difference that might change. So self-defense is governed by a necessity proviso. You’re not allowed to use a violent defensive action when a non-violent defensive action is equally effective, and you’re not allowed to use a non-violent defensive action when some sort of peaceful resolution mechanism is as effective, right? That’s the basic idea and that’s true of civilians. I think that’s also true of government agents. And there’s just a question of whether these other things are there, and there are things about, how to put it, but at the same time we have to think about the difference between fixing a policy versus stopping an immediate injustice.

17:50 Jason Brennan: So suppose a person at a party, a college party, some frat boy tries to rape some undergrad. If that undergrad were to defend herself against him, she’s not trying to end the patriarchy, she’s not trying to end the fraternity culture, she’s not trying to end rape culture, she’s trying to stop herself from being raped then. And there might very well be various kinds of legal and extra legal mechanisms that she can use to retaliate against this guy or punish him or receive compensation from him afterwards, but we wouldn’t say to her, “No, no, just allow yourself to be raped. And then afterward, go to the campus police and go to the campus administrators and have him punished.” We would say, “No, you’re allowed to use violence to stop him from doing it now,” even though that’s not the same thing as stopping the overall pattern of abuse.

18:34 Jason Brennan: I think it’s the same thing with cops, or any other government agent. If a government agent is doing something immoral right now that’s going to hurt you, violate your rights or violate someone else’s rights, you acting to stop them is about stopping that immediate injustice. It’s not about trying to fix the problem, the bigger problem, the fact that this keeps happening.

18:50 Aaron Ross Powell: So you said that you are an anarchism sympathetic but not an anarchist, but doesn’t this theory, if taken seriously, commit you to anarchism? In the sense that… So every law, as we’ve talked about a fair amount on Free Thoughts, every law is…

19:08 Trevor Burrus: Michael Huber came on Free Thoughts, so.

19:10 Aaron Ross Powell: Is ultimately backed by the threat of force or the application of force, and that threat of force or application of force is something that we say the people involved in the enforcement of that law get to do, but so I can’t, I can’t go around enforcing even just laws, right? I can’t, if I see you violating a law that we generally agree is just, I can’t beat you up or lock you in a cage because we’ve said the state is the one that gets to do that. But what distinguishes it? What distinguishes that application of violence from my application of violence and if we have to treat the perpetrators of the violence the same, then it seems like we kind of have to jettison… We either have to jettison enforcement of law or we have to just basically say it’s always okay for anyone to resist the enforcement of any law.

19:57 Jason Brennan: I think it’s reasonable to have an anti-vigilante principle that says something like, “When it comes to enforcing the rules and enforcing people’s rights, we should have a presumed deference to the people who are most effective in doing that.” And often that’s going to mean, allowing the police to sort of stop things. So if you see someone being mugged and the police are like, “Oh no, no, we’re gonna jump in and stop that person from being mugged.” You should let the police do it. Now, if you were to say Batman or Superman, I would think the police should actually defer to you and let you do it, but if you’re a normal person, who doesn’t have super powers then, I guess, I mean doesn’t either, but you’re not awesome like Batman, you should let the police do it. So there is a reason to defer to the more effective agent when it comes to fixing problems and that’s true not just of… It’s not just with regards to say enforcing rights, but if I am at a Walmart or something and someone starts choking and I am like,” Don’t worry everyone I am a doctor,” and someone says, “Yeah, but I am a medical doctor, I’m going to help the person.”

[chuckle]

20:51 Trevor Burrus: Doctor of philosophy.

20:52 Jason Brennan: Yeah, I’m a real doctor he’s a medical doctor. I defer to the medical doctor, because they have the greater ability to deal with it. So, deference in that case I think is not inherently a problem. Now, on the other hand, if the police are the one’s mugging you, I think that makes a difference. And if the police say they’re not going to stop the mugging that makes a difference too. So yeah, this book does not require an anarchist position, in fact, without giving maybe too much in the details of it, I argue in I think chapter three of the book that, I could grant the position that governments have the moral permission to do anything they want. And it would still be compatible to conclusion this book. ‘Cause there is an ambiguity between two special powers that governments tend to… People believe governments have. The powers are legitimacy and authority, [21:34] ____ uses certainly different words than that. So legitimacy is supposed to be the permissibility of government of creating rules and using various kinds of violent enforcement mechanism to make people comply with the rules.

21:48 Jason Brennan: That is what legitimacy is. Legitimacy in general it’s permissibility of using violence to do something. Authority is a special moral power that people think governments have, where when they create a rule, you as a citizen or maybe not just a citizen may be a resident or others, acquire a moral obligation to follow that rule because the government made it the rule. So authority would be if I say, “You guys do not murder anyone,” you shouldn’t murder anyone, but you don’t have to murder someone because I said so. You just have a pre-existing obligation. When the US government says, “Don’t drive more than 65 miles an hour on this road.” People think you acquire an obligation not to do that because they said that. They’d said 66 it would have been 66, if they said 40, it would be 40.

22:29 Jason Brennan: So the thing that’s actually of interest here is not legitimacy. Legitimacy is the power that establishes whether we should have a government or not. Is it permissible for this thing to exist? Is it permissible to create rules and enforce them? Authority is the thing that binds you as a citizen or a resident that makes you have to comply with the law. As far as you can tell reading the literature on authority and legitimacy right now, it’s not really clear, there’s any kind of… Philosophers are kind of puzzled whether there’s any real duty to obey the law per se, but most of them think that governments are legitimate.

23:00 Jason Brennan: And that sounds puzzling if you think well, how could a government be legitimate, but not authoritative? Imagine like a boxing match, you and I decide to have a boxing match. In that thing we both have permission to punch each other, but we don’t have authority to punch each other, meaning that when I try to punch you, you’re allowed to resist, or duck out the way and vice versa. So I’m not saying that I’m even sticking to the position that government’s lack authority. Maybe they do have authority and when they require you to go to jury duty, you have to go. “When they say, “Pay our taxes at least up onto a certain point,” you have to pay them. Maybe you should comply with certain regulations. But what the person who believes in government authority has to do the burden that they have in which no one has discharged in the past 2500 years, is established that governments don’t simply have the authority to make you pay taxes to make you drive a certain limit. To maybe comply with certain reasonable regulations, but they have specifically the authority to commit severe injustice, the very injustice that we’re un-civilian to do it. You would think it’s permissible to defend yourself, and no one is even attempted to defend that.

23:57 Trevor Burrus: And going off of Erin’s question with anarchy, which you could vouch for anarchy and I understand your answer, but it seems that you could resist a bunch of things that the government does under this rule. So I don’t know how much of my taxes contribute to bombs that are killing kids in Yemen. But let’s say they itemized my tax receipt which would be great. Here’s $275, this is going to bombs killing given to the Saudi government and killing kids, extreme injustice. If someone came to me with a gun and said, “Give me $275 I’m going to go kill a kid in Yemen.” I should be able to resist that violently. So why can’t I just resist paying my taxes, not the situation with the police officer and Randy King type of situation, but just the taxes to fund a war. And if we had tax collectors like we did in the old days and they came to your door in the colonies could I resist that guy forcefully.

24:55 Jason Brennan: Yeah, that’s a real puzzle, ‘cause if… To make this especially puzzling you have to imagine what the guys coming to say, “Alright I’m gonna take $200 from you and $100 is going towards something which you actually ought to contribute to.” Let’s say you’re bound to contribute and then the other hundred’s going towards enforcing slavery, or some other injustice, can you resist him? Or are you allowed to resist him and say, “Okay I’m gonna make sure that I pay my $100 to the good thing, but not… ” Yeah, I think in that situation you would have the permission, it would be permissible, though imprudent to resist paying for those taxes. And if you know Thoreau’s civil disobedience book, that’s why he was in jail, he said, “I’m not paying for the Mexican American war I’m not paying to enforce slavery in the South.” And they said, “Yeah you are,” and they threw in jail. But I think he was right. So, tax evasion, if you could do targeted tax evasion where you somehow manage to pay only the taxes, that go towards the good things and you don’t pay for any of the government evil, then that’s permissible in my view.

25:54 Trevor Burrus: But then you have this problem that everyone’s gonna be doing it, and they all have their own view of what is evil, or not. Then we have a chaos that results from this and…

26:04 Jason Brennan: Well, there’s this kind of claim about to this thesis where… I’m saying it’s permissible to do this under certain circumstances. I’m not thereby saying, it’s permissible for you to do when you believe you’re in those circumstances. I am saying it’s permissible to do when you are in fact in those circumstances. Every moral theory has that. Common sense moral thinking is the same way. This is permissible when you’re in this situation, it’s not permissible when you’re not in this situation. And then there’s a problem of real people actually living up to that and people make a mistake. It’s true of football. It’s true of guitar. It’s true of anything that has any normativity of it. You might say something like, “Well, you’re in this situation you really ought to tuck and roll or you might just slide rather than take the tackle.” And people will misapply that rule ‘cause they’re mistaken about the situation. So there is a danger to that. And for that reason, in the book, I talk about such things about how to be cautious about this, how to avoid over-applying it, how to avoid running into these mistakes.

26:58 Jason Brennan: At the same time, I honestly think the other position is much more dangerous. I think the view that other people are pushing is, “No, defer to government.” And what we know about human psychology is that people are deferential cowards, who will kill another person, electrocute them to death, because a person in a white lab coat told them to do so. We know that most people, if a guard comes to them and says, “We need you to lock up these Japanese people, and we need you to exterminate this Native American tribe, and we need you to gas these Jews,” their reaction is, “Absolutely.” And they’ll do it, right? And they might feel bad about it and have some nightmares later, but they do it. So I think, if anything, people are like, “Oh this thesis is really dangerous. You can’t spread that.” I’m like, “Oh, no, no, no, no.” Given human history and given the predilection towards conformity that we know about human beings, the other view that says, you should defer to government agents is incredibly dangerous and people should really stop advertising that position.

27:52 Aaron Ross Powell: But doesn’t that conformity potentially push us in too far, in the opposite direction in that, so things… You can point to these instances of people following orders that were catastrophic. And so, killing the Jews or dropping the bombs on the children or whatever else that we would think it would be better had they resisted. But by and large, you look around the US, that we are, as a people, very deferential to authority, and some people seem to be very, very deferential to the point where even if you say anything kind of mean about authority, you’re anti-American or whatever else. But we seem to be doing okay. There are instances of brutality. There are instances of people doing… But on the whole the government seems to treat us reasonably okay. And if you’re right and people operationalize your thesis and we develop a culture of… The conformity would lead to a culture of, let’s all just kind of resist when we think it violates these moral principles…

29:04 Jason Brennan: When it does, in fact, violates the moral principles.

29:06 Aaron Ross Powell: But when it does, and people can only operate on when they think it does. They can’t actually operate on when it does, ‘cause those kind of were in-distinguished in their mind, but that a society where everyone was resisting all the time, would be potentially non-functional in a much worse way than our generally happy deferential to authority world.

29:32 Jason Brennan: Maybe that’s an empirical question. What would happen as a result? I suspect if I did… ‘Cause you’re almost asking me to imagine something like, I wave at my magic wand and all of the citizens suddenly accepts the thesis of this book and act in accordance with it, or what they think is in accordance with it, and then the government agents continuing in acting exactly the way that they have, and they don’t believe this. ‘Cause if we really would imagine everyone believing this then we’d have a lot of like, well, rather than you having to resist the police officer for him trying to throw you in jail for marijuana, he just doesn’t throw you, he just lets you go because he knows it’s a bad law. He doesn’t enforce the law. So in a sense, universalizing this thesis, I think, leads to not more resistance to state in justice but less state injustice for there to resist in the first place. And really, the second half of the book is all about; okay, maybe generally citizens don’t have an obligation to defer to government agents. But what if you are a government agent? Do you have an obligation to go along with injustice, ‘cause you’ve accepted a certain role? And I think the answer for that is also, no.

30:30 Trevor Burrus: Did Kim Davis act legitimately? ‘Cause she was the one who refused to issue marriage licenses on her religious convictions as a county clerk, and I think in Kentucky. She would sit here and say, “My common sense morality is that homosexuality is a sin.” And I presume she would say this.

30:50 Jason Brennan: Yeah.

30:50 Trevor Burrus: “And gay marriage is an abomination and the state can’t, the Supreme Court can’t make me do this.”

30:57 Jason Brennan: She made a mistake ‘cause it’s not in fact an abomination. And that’s a problem with all moral principles, every set of rules, that people will misapply them. It doesn’t mean the principles are wrong. It’s just a problem with the people misapplying them. This is a thing about, say, utilitarian philosophy. I’m not a utilitarian, but I think there’s something to it. They’ll say, “What makes actions right or wrong is that it produces the best possible consequences.” And then someone will say, “Yeah, but people are really bad at figuring out what the consequences are.” And they’re like, “Yes.” There’s a distinction between, the moral theory, and what we call a decision procedure. A moral theory is, its job is to identify what in fact makes things right or wrong. A decision procedure is a thing that you use in the heat of the moment that helps you track the truth, as determined by that moral theory.

31:38 Jason Brennan: And so decision procedures and theories are often very different, and a good example of this would be how baseball works. If you’re an outfielder, and you’re trying to catch a fly ball, the correct theory of where the fly ball will land is a theory from physics about vectors and about the initial acceleration of the ball and the angle in which it’s hit, and the air temperature and so on. And those physics equations combined will tell you where the ball lands. But no one would ever be able to catch a ball, even someone who’s very athletic and a mathematical genius, by applying those physics equations on the ground; they’ll never catch it. So the thing that you use on the ground is something that is dependent upon your psychology and your abilities that helps you track the truth. And so, that’s personalized and for most people it’s this thing called the, gaze heuristic, which is, you keep your eye on the ball and you keep your head at a certain angle towards the ball, and you move your body in such a way that you never change the angle of your head, and if you do that, you’ll catch the ball. So the decision procedure is different from the actual truth.

32:33 Jason Brennan: So similarly with this, given you the listener, your particular psychological flaws and biases and ticks and weirdness and what’s good about you too, then the decision procedure you ought to operate by is different from maybe mine and different from Trevor’s and so on. And so it might be that some people, their decision procedure will tell them to be more conformist, because they’re so overly inclined to make the bad choices. And some people will tell them to rely upon their common sense judgment. So that’s a problem, but it’s individuated. So the problem with Davis is, she’s acting on her considered moral judgments but her considered moral judgments are wrong, and that’s also true of self-defense. Imagine, I’m walking down the street, and I’m Kim Davis, and I see a gay couple kissing, and I’m like; My considered conviction is that they’re violating the Word of God, so I’m gonna punch them both in the head. Well, that’s her considered view, but it’s wrong. And we wouldn’t say that counts as defense of others. We wouldn’t say that counts as self-defense. We wouldn’t say that that’s right. So any moral principle people can misapply.

33:35 Trevor Burrus: When you talk about the judges and the justice system, convictions of different laws, it seems that if we go down to one of the core rules of the state, which is dispute resolution, and this is Locke’s idea that you need to have a third party to… ‘Cause you’re biased and thinking for yourself, right? You need a third party to resolve disputes and that kind of becomes the state. One of the hallmarks of a justice system, a well-functioning one, is that the loser abides by the result, whatever it is, ‘cause that’s how you diminish violence. You had your day in court. Or even if you use some crazy method, reading tea leaves to figure out who is guilty. If both parties agree that this is the just way of resolving their dispute, and the loser is like, “Well, I guess I lost.” And then does not commit violence or takes the punishment. If you’re allowed to resist because you got convicted of some wrongdoing that you think common sense principles, like smoking marijuana, how much does that undermine the justice system over… Eventually, undermine the entire method of dispute resolution between you and the state on these? And then, which is a really positive development of a well-functioning justice system as a really positive development for a society.

34:50 Jason Brennan: I’m glad you asked that question. But I think my position on it I think is gonna be something probably similar to what I expect you think about the inaptness of the metaphor in the first place. I think about the brilliance of the English Common Law System. I think of it as, my neighbor and I disagree about some rule about the boundaries of our property and how to apply it. And we both agree that it’s better to find some sort of impartial resolution than to come to blows. And we both voluntarily go to a roaming judge and say, “Hear are our case.” And he comes up with something that he thinks we both can live with, and at the end of the day, we might recognize, well, maybe I think he got the numbers a little bit wrong. He says you have to pay me £1,000 and really it should be 1,200. But it’s better to just go with the 1,000 and defer to that than to insist on fighting for the extra 200, and we generally agree to use that. That’s how that system evolved, and it was a very good mechanism for creating law, and it’s a genuine voluntary use of third-party resolution that makes sense to defer to.

35:42 Jason Brennan: When you’re talking about laws about, say criminalizing marijuana. I wouldn’t describe the democratic process to lead to that at all as being anything like this kind of consensual use of third-party; a third party arbitration. I would see it as simply, I’m born a certain area. I don’t have the right to live anywhere else. And a bunch of people are going to impose their view of moral right and wrong upon me, and when they get it wrong, they don’t get to… When they make a mistake, and impose the wrong things upon me, they don’t get to ruin my life over it.

36:11 Trevor Burrus: But they passed the law through legitimate processes, I mean, at least in terms of voting, you had a trial that was legit, that was a due process trial, the jury had the opportunity to nullify, let’s say. Let’s say they were even informed that they could nullify and they didn’t maybe because they believe you happen to have a jury who is way for criminalization of marijuana. And so then at the end you’re like, “Okay, I guess I’ll go to jail now.” Now, in terms of, “I’m just gonna break out or I’m gonna… ” Or just being like, “I had a fair trial. I had a fair process,” accepting my punishment in that way, don’t we need people to do that on some level?”

36:50 Aaron Ross Powell: Socrates drinking the hemlock.

36:52 Trevor Burrus: Exactly, yeah. Don’t we need people to do that?

36:54 Jason Brennan: No, I don’t think we do. I can see why people would defer, but first of all, I don’t think the democratic process is this… A legitimate process that has a tendency to create good law, but we can get into…

37:04 Trevor Burrus: We already had that episode.

37:05 Jason Brennan: We already had that discussion.

37:05 Trevor Burrus: We’ll put that episode up in the show notes.

37:07 Jason Brennan: But let’s say we had a trial, and let’s say that during the trial they… If it’s for the kind of thing that just shouldn’t be a crime in the first place, and they honestly believe it, then it’s like, look, they’re not necessarily awful people for believing that, but we don’t get to hurt… They don’t get to hurt me just because they made a mistake. That’s on them. But let’s say it’s the kind of thing that should in fact be a crime, like they believe that I’m a murderer and murder should be a crime. And then they have the trial and during the trial, they present the evidence fairly, and it just turns out through incredible bad luck, we’ve all seen movies like this, the evidence overwhelmingly points to me being guilty, but I’m not, I didn’t actually do it. But it’s the kind of thing that should be punished and it’s reasonable for them to think that I was guilty. In fact, it’s like they’d be unjustified in thinking I’m not guilty, because the evidence is so strong, it just turns out it’s wrong. So they throw me in jail. In that situation, I would regard the people who have put me in jail, the guards holding me, as what we would call innocent aggressors in philosophy.

38:05 Jason Brennan: Innocent aggressors are people who, when they’re acting, they haven’t in a sense done anything morally wrong. They sincerely and justifiably believe that they’re defending themselves against you, they justifiably think that you’re… It’s right use violence against you, but they’re mistaken. And then the norms about that are a little bit more complicated because you have to take their welfare into account, not just your own. You don’t treat them the same way that you treat perpetrators of injustice. And that’s from just war theory in general. You treat innocent aggressors differently from genuine aggressors. So in that case, you might think about, well, if it turns out the only way I can free myself is by killing 15 cops and they’re all innocent aggressors, then maybe you should just stay there because their welfare accounts too. If the way that you can get out is by punching one cop once and you can run away, and he’ll be fine, then maybe you should break free, but that’s because they’re innocent in this case. Now, if they’re like, “No, no, you’re Alan Turing and we’re gonna chemically castrate you because we just all believe that homosexuality is an abomination,” then Alan Turing should be like, “Go out guns bla… ” Morally speaking, he can go out guns blazing. No one should do that to him. Prudentially, it would be a bad idea to do it, but morally, he’s okay.

39:14 Aaron Ross Powell: It seems like we can think of one of the roles that government agents play in this kind of enforcement thing as like the buck stops here in terms of judgment, because otherwise, we might imagine a situation where, say I see some cops beating up a guy, and I rush in to defend him because in my considered judgment, it looks like they are behaving in a radically unjust way towards him. So I have a right to defend them, so I do that, but then someone sees me defending against those cops, so now I’m attacking cops, and so they’re like, “Well, here’s a guy who’s aggressing against cops. I’m gonna go and defend the cops.”

39:56 Aaron Ross Powell: And we can just keep going because all of us are acting on information that none of the rest of them have, or even… So the example of, you see the person fighting against the cops and it’s because he was convicted of murder, and all of the evidence made it look like he was guilty, but he knows that he was not guilty. But no one else can possibly know that, almost by definition, because all of the evidence makes it look like he’s guilty. And so you end up with this infinite regress of people defending people based on their considered judgment, that’s the best they can do in the situation, whereas if we have… If we said like, “Look, we just defer to the… We need someone who’s like… ” No, their judgment kind of trumps. And sometimes it goes wrong. Sometimes they make the wrong choice or whatever, but that’s what stops this kind of endless cycle of defense of others.

40:42 Jason Brennan: Yeah, so two things about that. One is I really do think there’s reasons… So there’s epistemic versus moral authority. Moral authority is when I say you have to do something or if I make a claim I’m gonna do something, you have to let me do it ‘cause I have power over you. Epistemic authority would be the idea that like, “Well, this person might know better and I should defer to them because if they’re doing something they probably know better.” Like, if I know that, Trevor, you just always get things right. When it comes to morality, you always get the right answer. And we’re walking down the street and you point to someone and say, “You need to kill that person.” Well, by hypothesis, I have no idea why I should, but I know that since you always get things right, I really should. So I should defer to you because you know better. Not ‘cause you’re… It doesn’t become right because you said so, but just somehow you track the truth.

41:23 Jason Brennan: Sometimes with cops, it’s like if I walk across the street and I see two cops beating up somebody, and then I go on another street and I see two people in black trench coats beating up somebody, it’s rational for me to think those are different situations. Probably the person being beaten by the cops is more likely to have it coming than the other person, because even in the US, where cops are incredibly violent compared to everywhere else, they’re still overall pretty good and they’re less likely to do that. So that said, we have to take into account questions about when should I defer given the information I have? Not necessarily that they have moral authority, but the question of like, “Well, what are they doing? Do they know better than I do?” That said, I think the regress problem here that we’re talking about exists with civilian injustice. In fact, when you were talking about that, I thought of a situation back in sixth grade. So I have I think a 23 to 1 record when it comes to fist fights.

[laughter]

42:18 Jason Brennan: Right? And I don’t remember most of the kids that I had fights with in middle school, except that guy who won. So there was this kid named Eric, to my self-defense, I think I was 11 and he was like 14 or almost 15. He’d been held back in school a couple of years, he was really big. I’d like a rematch now, I think I could take him now.

[chuckle]

42:37 Jason Brennan: One day I bumped into him and he was like, “I’m gonna kick your ass at the bus stop.” And he did. But I fought back hard but he was winning and then my brother jumped in and grabbed him to stop him. And then as this happens, we’re pushing him off, the guy in the house nearby saw that, and he sees it and he sees two people attacking one guy. So he comes running out and grabs Matt and me off of him. So it’s the same regress problem. And I’m like, “What’s going on there.” Look, it was right for me to defend myself against Eric, and it was also permissible for that guy to defend Eric against the two of us, because given the information he had, in the heat of the moment, that was his best judgment about what to do. And if he kept holding me back and Eric kept punching me, it’d be reasonable for me to punch that guy in the face to stop Eric from punching me. That kind of thing happens. That’s too bad. But at the end of the day, the basic principle has to be, the person who is perpetrating the injustice is the one that the risks and costs of injustice should fall upon as much as possible. So yes, there are gonna be cases where, if Obama says, “I’m gonna bomb this country tomorrow.” I would say Obama ‘cause I wouldn’t trust Trump at all.

[laughter]

43:44 Jason Brennan: Someone like Obama who I thought was better, though he did a lot of mass murder that wasn’t justified. But if Obama says he’s gonna bomb a country tomorrow, I’m not going to treat that the same way as if you say you’re going to bomb the country. I have more reason to think that Obama would have information that I don’t have, which would give me reason to defer to him. But beyond that, I don’t think there’s any real difference.

44:04 Trevor Burrus: And what’s your fist fight record Aaron?

44:07 Aaron Ross Powell: I have never been in a fist fight.

44:09 Jason Brennan: We can change that.

[laughter]

44:10 Trevor Burrus: Would this be a Fight Club? Is that what we’re gonna have?

44:12 Aaron Ross Powell: Yeah, that’s right.

44:13 Trevor Burrus: I think I’m two in two.

44:13 Jason Brennan: We have space in this room.

44:14 Trevor Burrus: Yeah, I think I’m two in two in fist fight record. Snowden, Edward Snowden; a lot of criticism. Some people think he’s a hero, some people think not. But also the idea of someone in that situation, not all the way at the top, but privy to a lot of information, leaking a bunch of stuff, but maybe not knowing everything about this. Or having a lower level army officer not know the whole plan, and so, but still using your common sense, moral judgment. This is wrong. This is gonna happen. Is it okay for people in those situations to perform seemingly immoral actions to stop, or to perform violent action, or lying or some sort of thing like Snowden did to stop a seemingly immoral action?

45:01 Jason Brennan: Yeah. Again, you can make mistakes with that, because there could be a case where, if only you had more information, you would see why it’s justified. And you have to make a judgement about; How likely is it that that information you have is misleading? And that’s true of common sense morality when it comes to civilians. It doesn’t change if you’re working as a whistleblower at IBM, alright. It’s the same thing. I say, “Whatever your view is take that same exact situation and make it like Dow Chemicals.” And whatever your view about self-defense is there. I wanna say treat the government the same. The only difference comes down to the question of the reliability of the government. I maybe trust Dow Chemicals a little bit more than I trust the US government, but so it goes.

45:34 Trevor Burrus: But Dow chemical has one thing it does. It doesn’t have the responsibilities of the US government, especially on the international stage. And one of the criticisms of Snowden was that he did leak the sort of secret information about some of our agents overseas, and some of the broader strategic goals that we were pursuing. And of course you can imagine another hypothetical leaker, who could seriously undermine beneficial government policies based on their knowledge of this immediate harm, and compounded by the fact that sometimes, and I think you would agree with this, the government does bad things for good reasons, right? And you could send a missile to a house where there’s kids or there’s innocent people, but there’s also an evil warlord, right? And right now, we have them and we can send a Tomahawk missile and someone has to make the call about the collateral damage. In the bigger picture, it’s better, but then letting this person down low make that determination is not something that we could allow.

46:36 Jason Brennan: Well, I can understand why, as a government official, you would want people to just defer to you if you think that you know better. I’m actually pretty suspicious of the track record about, with regard to collateral damage, where I would think and be like, “Oh yeah, we’re killing 50 kids and this one terrorist, but overall, that’s better.

46:50 Trevor Burrus: Yeah, I think they often make the mistake. But sometimes you can imagine how possibly it could work.

46:53 Jason Brennan: In principle it could work out like that.

46:56 Aaron Ross Powell: It could work. Yeah.

46:56 Jason Brennan: Yeah, and I would say at that point, the agent in question, unless they have very good reason to think that the people in charge of them know better, and would know why this is justified, that they should just refuse to do it, and then they might have to share that information with that person to get them to do it. I think the other principle of just deferring to the assumption that they know better has proven itself to be way too risky and dangerous a principle with a terrible track record. So as a philosopher, I can think of situations where that would happen. I think realistically that happens very… Most of the cases that look like they’re bad cases are bad cases.

47:29 Jason Brennan: With Snowden and Manning and other whistleblowers in the US government, to some degree, I punt on them because we don’t necessarily know all the facts but everything that they leaked and there’s a question of like, Which of the leaks are good and which are bad? So I just say like some of the information that they leaked I think was justifiable for them to leak and some wasn’t, and exactly the contours of that is something up for debate based on factual considerations. But I think it is permissible for you to take a government agent job as a government agent with the intention of sabotaging some of the injustice from within. It’s one of the positions I defend. So I think lying to certain people who are due to be lied to is okay. So if I know that… The other thing that the Cato Institute does, besides running podcasts and publishing books and writing white papers and so on, that when that’s all over, you guys are also firebombing Tuvalu. Then I come work for you as an AV assistant or something and then you say,”Hey like what would you… ” I could like totally lie to your faces and just say that like I’m gonna go along with everything and then at night sneak in here…

48:34 Trevor Burrus: And then undermine.

48:35 Trevor Burrus: And undermine your Tuvalu firebombing the population.

48:37 Trevor Burrus: People think that doing that with a business like infiltrated the cigarette companies or something to prove what they were doing. I think that Russell Crowe movie is kind of about that. Obviously, the Nazis always are allowed. Isn’t that Oscar Schindler did maintain party status.

48:54 Jason Brennan: Yeah. He was developing munitions and then sabotaging the munitions to make sure they wouldn’t work.

48:57 Trevor Burrus: Exactly. And everyone thinks that’s heroic. It goes back to your original question. Yeah, everyone thinks you can kill Stalin, but why not Andrew Jackson? Kind of.

49:04 Jason Brennan: Yeah.

49:05 Trevor Burrus: Yeah.

49:06 Aaron Ross Powell: When we had you in a while back to talk about your book against democracy, I think I asked a variation of a version of this question. So I’ll ask it again. Given the number of people who tend to disagree with arguments that you frequently make, and the amount of pushback you get, what do you see as maybe the most interesting or most troubling counter-argument to all of this?

49:39 Jason Brennan: I think the troubling counter-argument is not in principle philosophical argument. I think it’s like all the other stuff, I just win. When it comes to the philosophy, it’s a…

[laughter]

49:49 Trevor Burrus: 23 and one in fistfights.

49:51 Jason Brennan: 23 and one in the fist fights.

49:52 Trevor Burrus: Eight and narrow… Okay.

[laughter]

49:53 Jason Brennan: And 87 to zero when it comes to philosophy at this point. Yeah, the only paper I wrote that’s wrong is when I said it was wrong at the beginning. I’m just like, “This is interesting but wrong”.

50:02 Trevor Burrus: We have a colleague who’s described you as the Kanye West of philosophers.

[laughter]

50:05 Jason Brennan: Is that a good thing. I don’t know.

50:07 Trevor Burrus: Braggadocio with something to back it up. Kanye West his good, right?

50:13 Aaron Ross Powell: Fair enough. Alright. Yeah. But I do think that as a person who writes for a popular, not just for a philosophical audience, but who writes and reaches a popular audience, that it is reasonable for people to worry about this getting misapplied and people using this to sort of like it seemed like communist party member being like, “Alright, I read this book and he’s right. I’m gonna start firebombing the banks in Wall Street or something and every time I see a person in a suit, I’m going to shoot him in order to defend against injustice.” It is true that people will use ideas like this to rationalize bad behavior. So if you say to somebody something like, “In response to rights violations then you were able to do x.” Then there are people who see rights violations everywhere. There are people who think that our having this discussion counts as a right violation and that it’s permissible to use violence against us to stop us. I think my worry about this book is not a philosophical one, it’s that it’s the danger of people misapplying it. But as I said before, I’m even more worried about the misapplication of all the people defending the other position.

51:14 Aaron Ross Powell: Thanks for listening. Free thoughts is produced by Tess Terrible. If you enjoyed today’s show, please rate and review us on iTunes and if you’d like to learn more about libertarianism, find us on the web at www.libertarianism.org.