Abstract
Revisionist just war theorists maintain that, soldiers, and not merely their leaders or superiors, bear moral responsibility for objectively wrongful harms imposed in pursuit of an unjust war. The conviction that underlies revisionism is that a person's responsibility for her intentional, objectively unjustified, killing is non-transferable. In this essay I aim to elaborate a specific counterexample to this general claim. I will argue that in cases that I characterize as "special authority cases", the moral responsibility for the unintended outcomes that a person brings about because of following the orders of a legitimate authority is transferred to the authority.
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Notes
Following Helen Frowe (personal communication), I assume that lesser evil justified harm might be unjust.
Revisionism rejects Michael Walzer's (1977) traditional just war theory, according to which soldiers are not responsible for the war that they fight, but only for the way they fight it. Elsewhere (Benbaji and Statman, 2019: 116–131), Daniel Statman and I explained Walzer's traditional view in terms of transferred responsibility. (For McMahan's response to an early version of contractarianism see (McMahan 2009: 52–60). For McMahan's sustained discussion of the relation between law and morality in the context of war, see (McMahan 2004).) This essay is not concerned with the responsibility for the war itself. Instead, it shows that the responsibility for actions taken within a war is transferrable.
There are important differences between proponents of the Authority View. Renzo defends the most restrictive version. I will therefore assume that Estlund and Parry agree that it is permissible to follow orders in the cases in which Renzo believes doing so is permissible.
For Renzo's critique of Estlund's view, see Renzo (2013).
I relax Estlund’s strong statement that following the order is obligatory, in order to make it acceptable to Renzo and Parry.
On the Kantian distinction between public and private purposes, see (Ripstein 2009): “properly public purposes… are the only purposes a state may rightfully pursue.” (26). Pace Ripstein, I will assume that states ought to pursue other things besides “creating, sustaining, and improving a rightful condition” (ibid).
I use the presentation elaborated in (Quong 2011: 126–131). This reading of Rawls is common. See citations in ibid. at p. 127. The argument from natural duty is supposed to support Rawls’s claim that we are “under a natural duty to support and comply with just institutions that exist and apply to us… and to further just arrangements not yet established, at least when this can be done without too much costs to ourselves” (Rawls 1971: 99).
As Quong insists, “[l]egitimate authority…is determined not by considering the broad question—what should I do?—but rather by considering the narrower question: what does justice require me to do?", (Quong 2011: 136). The different arguments advanced by Parry and Renzo seem to focus on the first question. I tried to re-structure them as an answer to the second.
I shall not present the fact-relative/evidence-relative. I rely on Victor Tadros' presentation in his, Tadros (2011), pp. 220–24.
You might believe that if the future is indeterminate, one’s fact-relative duties are indeterminate. I cannot address this possibility here. I just note that according to the view presumed in the text, one’s fact-relative duties are time-indexed.
Would it be different if Expert had weighty reasons to rescue Victim but not a duty, if, for example, the rescue is supererogatory? I am not sure that in such a case Expert has the moral power to enter an agreement that releases Assistant form the fact-relative duty to ensure that Expert is not negligent. However, I have no space to explore this issue here.
The term comes from McMahan, who uses it to (sceptically) describe the idea that those acting on behalf of political collectives can thereby acquire permissions to impose what would otherwise be unjustified harm. See (McMahan 2007: 53).
It might be thought that Assistant has two conflicting pro tanto duties: not to question Expert’s instructions at tF (because of the agreement), and to do so (since this might prevent Victim’s death). A paradigmatic example of such a conflict occurs if you promise to attend two friends’ birthday parties, but, as it turns out, you cannot keep both promises since they were born on the same day. I cannot address this variation here.
Things get complicated if one of the parties is forced to do his or her part. They also get complicated if both parties see what is the right division and act accordingly, but do not explicitly agree to divide the labor in the Semi-Special Killing way. I have no space to discuss such cases here, but it seems to me that there is no responsibility transference without actual agreement.
Is it permissible to kill this pilot in case it is necessary for self-defense? If the answer is Yes, it is not because of her responsibility for the threat that she creates. Indeed, special authority cases might suggest that the responsibility for an unjust threat is not necessary for liability, or that defensive killing is permissible even if the attacker is not liable to defensive killing, and in the absence of a lesser-evil justification.
Victor Tadros raised this objection.
References
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Acknowledgement
This paper emerged from the ‘Conversation of War’ series (co-hosted by the Stockholm Centre for the Ethics of War and Peace, Stockholm University and the Yeoh Tiong Lay Centre for Politics, Philosophy and Law, King’s College, London). I would like to thank the participants of the workshop. Additionally, I am grateful to Barak Abarbanel, Hagit Benbaji, Dana Gur, Ofer Malcai, Shai Otzari, Dilen Sevit and Dror Yinon for their insights. I am especially indebted to the guest editors of this special issue, Helen Frowe and Massimo Renzo, and to two anonymous referees, for their close reading and extensive comments. The Israeli Research Foundation supported this research (grant number 396/18).
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Benbaji, Y. Costly authority and transferred responsibility. Philos Stud 178, 3579–3595 (2021). https://doi.org/10.1007/s11098-021-01615-2
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DOI: https://doi.org/10.1007/s11098-021-01615-2