Jason Brennan argues powerfully and effectively that we may use force and tell lies to
prevent or end unjust actions performed by government personnel. The kinds of unjust
actions he has in mind include not only actions by government personnel acting outside
the scope of their authority but also actions by government personnel implementing
official government policies. And these policies include not only those adopted by
totalitarian governments like that of Nazi Germany but also those adopted by democratic
governments like that of the United States.
Brennans arguments are powerful in part because of the minimal foundations to
which he appeals. Although he recognizes that libertarians and classical liberals will
likely be sympathetic to his conclusions, he does not rest his judgments on libertarian,
much less anarchist, premises. Instead he frames his arguments in ways designed to
persuade people who embrace a wide range of understandings of the grounds and limits
of state power, suggesting that his conclusions should be persuasive to social democrats,
say, as much as to libertarians. And although he sometimes dissects real or envisioned
philosophical arguments for particular positions, he defends his thesis primarily by
appealing to moral intuitions he believes almost everyone will share.
Brennan defends the simple and intuitively plausible idea of moral parity: that is,
when asking whether it is reasonable to use force or to lie, it shouldnt matter whether
ones target is a state or a nonstate actor. He defends moral parity with admirable clarity
by outlining a series of cases involving resistance to injustice by nonstate actors in which it will seem obvious to most people that force or lying was appropriate.He then goes on
to elaborate a set of parallel cases involving injustice by state actors. If we believe force or
lying is appropriate in the former set of cases, we might well feel uncomfortable about
denying that they are appropriate in the latter.
Brennan doesnt pretend that the appeal to intuition is enough to establish his
moral parity thesis. Rather, he recognizes that a variety of arguments might be used to
establish a special immunity for government actors from the kinds of defensive force or
lying to which nonstate actors might appropriately be subjected. And he provides clear
and vigorous responses to these arguments.
He critically examines the idea that governments have authority, that they can
create special obligations for their subjects. He notes that political philosophers of
multiple ideological stripes have tended increasingly to agree that arguments for
governmental authority in this sense fail, even if they maintain that some governments
may legitimately coerce their subjects. He notes that a variety of other objections to
moral parity fail, too. Good reasons to avoid being a vigilante dont count against using
defensive force against state actors in emergency situations, for instance. Peaceful
strategies may lead to policy changes but are unlikely to enable people to stop individual
instances of abuse, so people cant be obligated to opt for these strategies in the face of
individual violent threats. We should be careful about using violence defensively, but
that we should do so isnt a reason not to use it defensively against state actors.
The fact that a state actor is following the orders of a political, bureaucratic,
military, or law enforcement superior doesnt give me a reason to avoid responding
forcibly to injustice on the actors part. And such orders dont give the subordinate any
sort of permission to act unjustly or to ignore moral requirements that preexist and are
independent of any obligation she might have to obey her superior. Some state actors
might be thought to have fiduciary duties to the state, but even if they do, such duties
cant exempt them from prior, independent moral responsibilities.
Brennan helpfully disposes of the idea that state actors must sometimes follow
directives they know are unjust. He shows, among other things, that proponents of
public-reason justifications for state coercion will have great difficulty supporting the
idea that state actors must follow orders they know to be unjust. He also notes that
although superiors may sometimes know more about a given situation than their
subordinates, subordinates will often have and reasonably believe that they have enough
information to identify orders as unjust and so worth breaking. They will even in some
cases be reasonable in believing that their superiors are appropriate targets of force
designed to keep them from unjustly injuring others.
Brennan thinks we ordinarily suppose that although it is wrong to lie simply to gain
some personal benefit, it is acceptable to lie in order to stop a serious injustice or the
equivalent. Whatever the defensible limits on lying, he shows that we have no reason to
treat government agents any differently than we treat other perpetrators of injustice. It
will be reasonable, then, to lie not only to the Nazi at the door but also to someone who
might punish me for consuming illegal chemicals. He also maintains that it is appropriate on similar grounds for politicians to lie to voters so that the politicians can
gain opportunities to prevent or end various state injustices. Similarly, he suggests that
judges are entitled not only to refuse to issue orders mandating compliance with unjust
laws but also to lie about the putative meaning of the law in order to preclude serious
Although defending the right to resist unjust state actions, Brennan is chary of the
view that we are obligated to resist. There may be an imperfect obligation to resist state
injustice, an indeterminate obligation that can be fulfilled in multiple ways and that need
not dominate our lives, though Brennan remains uncertain about this. Perhaps in a
narrow range of cases, ordinary people might have strict duties to resist, but this wont
ordinarily be true. Some state actors, however, might have more robust duties to
interfere with unjust choices by other state actors. Brennan incisively demolishes the
claim that ordinary actors acquire strong duties of resistance because failing to resist
would somehow render them complicit in the injustices they fail to resist, emphasizing
that complicity requires purposeful cooperation.
Not everyone will share the underlying intuitions on which the book draws. For
instance, arguing that if it is permissible to lie to nonstate aggressors, it is equally
permissible to lie to state aggressors, Brennan treats it as a desideratum of an acceptable
moral theory that it not endorse an unqualified prohibition on making false assertions.
And, of course, he may be right that such a prohibition is irrational. The rigorist
tradition as regards lying, associated especially with Augustine and Kant, might or might
not be right. I have argued against it in print in some detail (see Gary Chartier, Lies, in
Flourishing Lives: Exploring Natural Law Liberalism [Cambridge: Cambridge University
Press, 2019], 6985), and I confess that I hope it is mistaken. But it may stand up
to criticism more effectively than Brennan supposes (as Chris Tollefsen, among others,
has argued; see, e.g., Chris Tollefsen, Lying and Christian Ethics [Cambridge: Cambridge
University Press, 2014). Of course, again, Brennans view is that we may lie to
state actors in cases in which we may lie to others, and that view seems obviously right
whatever we make of Augustine or Kant on lying.
Brennans proposal that judges are entitled to lie when interpreting laws and
constitutions in order to prevent injustice is provocative. Judicial lying will of course be
possible only in a limited number of cases. A Supreme Court justice wont be able to rule
that, say, a dangerous presidents term of office should be understood as two years
rather than the Constitutions four or that, given an out-of-control Speaker of the
House of Representatives, the Senate rather than the House should elect the Speaker.
The relevant constitutional mandates are clear. The option to lie will arise only when
theres space for judicial discretion, and theres space for judicial discretion only when
constitutional or legal phrases are vague. But interpreting phrases such as the freedom
of speech or cruel and unusual punishment or due process of law in ways that
preclude injustice need not be deceptive: it may instead be a matter of using our best
considered moral judgments to interpret phrases that are morally laden and that invite moralized readings.
Thus, the issue of lying seems likely to arise only for a judge who embraces an
historically driven account of constitutional interpretationas, for instance, one that
ties the meaning of a given constitutional text to its original public meaning. This kind
of interpretive strategy leaves something to be desired, but a judge who endorses it is
likely to do so not on the basis of general hermeneutic criteria but rather in light of
normative considerations regarding the importance of legal transparency and reliability.
These normative considerations will enter into the judges understanding of what
she is morally required to do when confronting a given case. As a result, she may grant
that lying to state actors, including those who will implement her decision in the
relevant case, is permissible, and she may agree that the actions they will perform if she
interprets the legal or constitutional text in light of what she takes to be the correct
theory will be unjust. But she may also conclude that because of the systemic role her
decision can be expected to play and the importance precisely on moral grounds of
affirming the interpretive values she endorses precisely, it would be wrong, all things
considered, to ignore her historical theory of interpretation. And, given her systemic
role and the general considerations that lead her to embrace that theory, she might take
this view quite consistently.
The judge committed to a moral approach to reading a constitution or laws thus
wont have reason to regard her interpretations as lies, and the judge committed to an
historical approach will at least frequently take herself to have goodmoral reasons to avoid
abandoning that interpretation in the interest of justice in a particular case. So the issue of
knowingly inaccurate judicial interpretation seems unlikely to arise with great frequency.
Whatever we conclude about the issue of judicial lying, Brennan has made what
seems to me to be an essentially unassailable case for the moral parity thesis. It would be
easy to take this thesis in a more radical direction, to see it as grounding at least a
presumption in favor of anarchism. Brennan carefully and deliberately declines to do
that. But the case he has made is thoroughly radical nonethelessand very well argued.
When All Else Fails is an exceptionally good book. An example of casuistic reasoning
at its best, it offers a model of how to communicate about ethics and politics in a
thoroughly accessible way. Brennans defense of the simple claim that you may defend
yourself and others from particular acts of government injustice in the same way
that you may defend yourself and others from particular acts of civilian injustice
(pp. 23637) is advanced clearly, transparently, and effectively. He has produced an
admirable work of philosophy that will be of genuine interest to scholars but that can
also effectively inform debate among and moral reflection by politicians, bureaucrats,
judges, soldiers, police personnel, and ordinary nonstate actors.