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Published online by Cambridge University Press: 23 March 2021
Massimo Renzo argues that, as long as it is acting in good faith, an authority can issue orders that require subjects to act in ways that are morally wrong and still be acting within the scope of its jurisdiction, so that the orders are binding. This, however, is incorrect. If the authority is permitted to issue an order, it is acting within the scope of its jurisdiction and so the order creates an obligation. But if the authority is not permitted to issue the order, it is not acting within the scope of its jurisdiction and so the order does not create any obligation whatsoever. I develop my position and provide a model of mistaken authority through engagement with Renzo's view.
I would like to thank Alejandro Chehtman, Adil Haque, Crescente Molina, Ezequiel Monti, Jonathan Parry, Jerónimo Rilla, Eduardo Rivera López, Rodrigo Sánchez Brígido, Horacio Spector, Uwe Steinhoff, and Victor Tadros for very useful comments and suggestions on earlier versions. I am also particularly grateful to Massimo Renzo for discussing his view with me. The two anonymous reviewers for Legal Theory provided very useful comments and suggestions. Finally, I am grateful to audiences at SPPN/EHESS (Paris), UFRGS (Porto Alegre), UPF (Barcelona), and UVA (Amsterdam). All errors are my own.
1. Victor Tadros, To Do, to Die, to Reason Why (2020), at 60–62.
2. For the distinction between these three senses, see 1 Derek Parfit, On What Matters (2011), at 150–162.
3. Renzo, Massimo, Political Authority and Unjust Wars, 99 Phil. & Phenomenological Rsch. 336 (2019)Google Scholar. For related views, see Estlund, David, On Following Orders in an Unjust War, 15 J. Pol. Phil. 213 (2007)Google Scholar; Parry, Jonathan, Authority and Harm, in 3 Oxford Studies in Political Philosophy 252 (Sobel, David, Vallentyne, Peter & Wall, Steven eds., 2017)Google Scholar.
4. Renzo, supra note 3, at 346. Renzo refers to the justice of the state because he believes that whether a state is legitimate depends, among other factors, on whether it is reasonably just.
5. Needless to say, the claim that citizens are duty-bound to obey the law is itself controversial. The recent philosophical debate suggests that establishing the existence of a duty to obey the law is much more difficult than has been traditionally considered. Renzo attempts to ground political authority/political obligation in a natural duty not to pose unjust threats to others. Renzo, Massimo, State Legitimacy and Self-Defence, 30 Law & Phil. 575 (2011)CrossRefGoogle Scholar. For criticism of this view, see Steinhoff, Uwe, Renzo's Attempt to Ground State Legitimacy on a Right to Self-Defence, and the Uselessness of Political Obligation, 29 Ratio Juris 122 (2016)CrossRefGoogle Scholar.
6. As Joseph Raz explains, an authority can exist only if it can impose obligations even when it gets things wrong. This is because the benefits of possessing authorities to regulate human behavior would disappear if orders were binding only when correct. See Joseph Raz, The Morality of Freedom (1986), at 47–48, 61.
7. The expression “moral alchemy” comes from Jeff McMahan, who makes a related point. See Jeff McMahan, Killing in War (2009), at 82.
8. Renzo, supra note 3, at 343.
9. Id. at 344 (emphasis in original).
10. For the relevant understanding of jurisdiction, see Joseph Raz, Practical Reason and Norms (2d ed. 1999), at 192. Admittedly, under a possible interpretation of the example, a doctor acts within the scope of her jurisdiction when ordering a nurse to give a lethal pill to a patient. Under the correct characterization, however, she does not act within the scope of her jurisdiction. For further discussion, see infra note 18 and text accompanying note 20.
11. I would like to thank an anonymous reviewer for pressing me to clarify this point.
12. Renzo follows David Estlund: a mistake is “honest” if and only if it is the result of a “competent and legally legitimate, though necessarily fallible, effort to inflict the harm only if it is just to do so.” Estlund, supra note 3, at 221.
13. This is true, I think, in situations like the one I am considering here, that is, ones in which an authority issues a specific order. But I admit that things may be different when an authority issues general rules rather than specific orders. One may also argue that there are some exceptions, even in the case of an authority that issues a specific order. For instance, a doctor may be permitted (even required) to order a nurse to act in a certain way, because issuing the order has good consequences, even though obeying the order involves acting wrongly, so that the nurse is placed under no obligation. To this, I reply that that the doctor may certainly be permitted to issue orders of this sort, but these are “orders” only in a linguistic sense, for they are nonbinding by definition. I would like to thank an anonymous reviewer for pressing me to clarify this point.
14. This point, of course, just assumes that at least some suboptimal acts are permissible. As far as I can see, this commitment is conceptually independent of and, in fact, prior to, an account of legitimate authority. For this reason, I believe this is a feature that any minimally convincing theory must accommodate, but which does not imply or commit one to a particular view. I would like to thank an anonymous reviewer for pressing me to develop this thought.
15. A critic may resist this claim, pressing the Razian idea that orders that are “clearly wrong” are not binding. Although this is how his position is usually interpreted, Raz does not really say this. Instead, he writes that he reserves judgment about whether clearly mistaken orders are binding. See Raz, supra note 6, at 62. In any event, I think the analysis shows that subjects are obligated to obey some mistaken orders, even if it is apparent to the subjects that they are mistaken. For this reason, I am prepared to argue that, if Raz's service conception entails that subjects are not obligated to obey clearly mistaken orders that an authority is permitted to issue because the authority, in such kind of case, does not provide its subjects with the required normative service, his view, just for this reason, is unacceptable.
16. The idea that we would have mixed feelings in such a scenario is indebted to related remarks by Raz. See Raz, supra note 10, at 43, 75.
17. I feel tempted to say that the patient too would recognize the validity of the nurse's explanation. And this may certainly happen, sometimes. But surely some patients would also be less sympathetic to such explanations.
18. Renzo does not say in so many words that the patient does not authorize the doctor and the nurse to proceed. This, however, is clearly part of the example, for otherwise the doctor does have the right to order the nurse to give the pill to the patient, so that it is not morally wrong to issue the order. The reason is that, if the patient authorizes the doctor and the nurse to proceed, their killing of the patient does not violate his rights, especially his right not to be killed by reasonable mistake. Furthermore, the assumption is consistent with Renzo's whole view, especially with his claim that the combatants who are being fought against in an unjust war are innocent in the sense that they are not liable to be killed.
19. For the notion of indirect killing, see Adil Ahmad Haque, Law and Morality at War (2017), at 64–65.
20. I thank Uwe Steinhoff for discussing the example and pressing me to clarify these issues.
21. The discussion of the relationship between evidence-relative justification and excuse is indebted to related remarks by McMahan. See McMahan, supra note 7, at 43, 62, 144. I should note that not all theorists agree with my understanding of these notions. In addition, a critic could perhaps argue that, as by hypothesis the patient did not authorize the doctor and nurse to proceed, the act of issuing the order is not even justified in the evidence-relative sense. But this seems exaggerated. Unless the patient expressly refuses the treatment, a doctor is surely permitted to try to save a patient. Indeed, plausibly she is required to.
22. The explanation, I believe, is straightforward. But it seems to entail a counterintuitive claim, namely that, if he were not aware of the fact that the pill would kill the patient, the nurse also would not be doing something morally wrong in disobeying. I grant that this claim is difficult to accept. In particular, I believe that if the nurse were to disobey unaware of the fact that the pill would kill the patient, his act of disobedience would be morally wrong. (Notice, however, that it would be morally wrong only pro tanto, and that it would arguably be justified all things considered, for it would save an innocent person.) But this does not put pressure on my understanding of the example, that is, it does not force me to admit that the nurse is obligated to obey. For, in my view, what is morally wrong in this scenario is not that the nurse would be disobeying a binding order; it is rather that he would be disobeying an order that is not binding but that he believes to be binding, and that he would be doing this with no apparent justification.
23. Renzo, supra note 3, at 344–345 (footnote omitted).
24. This understanding of Renzo's position is strongly suggested by the expression “and in these cases.” It is also suggested by related remarks about combatants’ obligation to fight in unjust wars being overridden only “under certain conditions.” The issue is that, if the duty not to give the pill to the patient were not created by the acquiring of the belief that the pill will kill him, Renzo must say that, all things considered, the nurse should never give him the pill, even in the scenario in which he does not have the belief that giving him the pill will kill him. This is because the duty not to give the pill to the patient would preexist the nurse's acquiring of the belief that the pill will kill him, and, according to Renzo, this duty is weightier than the obligation created by the doctor's order. Admittedly, if the nurse did not have the belief that the pill would kill the patient, he would not be aware of his duty not to give him the pill. But this does not make it not binding or less stringent.
25. The analysis here is indebted to Chehtman, Alejandro, Revisionist Just War Theory and the Concept of War Crimes, 31 Leiden J. Int'l L. 171, 178–179 (2018)CrossRefGoogle Scholar. Notice, however, that Chehtman makes further remarks that suggest he believes that misguided subjects are not merely excused but rather act with justification.
26. H. L. A. Hart, Essays on Bentham: Jurisprudence and Political Theory (1982), at 254–255. See also Raz, supra note 6, at 35; Raz, Joseph, Is There a Reason to Keep a Promise?, in Philosophical Foundations of Contract Law 59–63 (Klass, Gregory, Letsas, George & Saprai, Prince eds., 2014)Google Scholar.
27. The thesis that promises to do something that is impermissible are void ab initio is defended by both early modern and modern philosophers. See, inter alia, Hugo Grotius, The Rights of War And Peace (Richard Tuck ed., 2005), at bk. II, ch. XI, §VIII.I; John Locke, Two Treatises of Government (Peter Laslett ed., 1988), at bk. II, §§23, 24, 135, 149, 168, 172; Shiffrin, Seana Valentine, Immoral, Conflicting, and Redundant Promises, in Reasons and Recognition: Essays in the Philosophy of T. M. Scanlon 159–163 (Wallace, R. Jay, Kumar, Rahul & Freeman, Samuel eds., 2011)Google Scholar; Watson, Gary, Promises, Reasons, and Normative Powers, in Reasons for Action 167–178 (Sobel, David & Wall, Steven eds., 2017)Google Scholar. At the same time, I should also stress that some modern philosophers dispute this idea. See especially David Owens, Shaping the Normative Landscape (2012), at 245–249; Owens, David, Promises and Conflicting Obligations, 11 J. Ethics & Soc. Phil. 1, 10–18 (2016)Google Scholar. Thomas Hobbes also assumes that it is false. See Thomas Hobbes, Leviathan (Noel Malcolm ed., 2012), at ch. XIV, 202, 214; ch. XXI, 336–338, 344; ch. XXVII, 454, 464; ch. XXVIII, 482.
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