Doing Away with “Legitimate Authority”

ABSTRACT

I argue in this article that traditional just war theory did allow private, indeed even individual war, and that arguments in support of a legitimate authority criterion, let alone in support of the “priority” of this criterion, fail. I further argue that what motivates the insistence on “legitimate authority” is the assumption that doing away with this criterion will lead to chaos and anarchy. I demonstrate that the reasoning, if any, underlying this assumption is philosophically confused. The fact of the matter is that wars need not necessarily be authorized by some higher authority (such as a king, president, or parliament) in order to be justified, and this moral fact does not need to lead to chaos and anarchy. Accordingly, the criterion of legitimate authority cannot be relied on to delegitimate individual war, private war, guerrilla war, or even terrorism. Finally, I consider some other defenses of authorization and demonstrate that the “authorization” these accounts defend is either not needed for justification or already provided by other just war criteria or, indeed, entirely fictitious.

KEYWORDS:

• Authorization
• Yitzhak Benbaji
• James Turner Johnson
• Seth Lazar
• legitimate authority

Acknowledgement

The research presented in this article was supported by a grant from the Research Grants Council of the Hong Kong Special Administrative Region, China (Project No. HKU 17610315). I am very grateful for this support. I also thank the audience of a workshop on chapters of my manuscript “Just War Theory and the Ethics of Violence” at the Center for Applied Philosophy and Public Ethics, Canberra, in April 2016, for helpful feedback on material presented in this article. I owe special thanks to Suzanne Uniacke for organizing the workshop and for providing extremely useful written comments on the legitimate authority chapter. I also thank three anonymous reviewers for their helpful comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes on contributor

Uwe Steinhoff is Associate Professor at the Department of Politics and Public Administration of the University of Hong Kong. He is the author of Effiziente Ethik (Mentis 2006), On the Ethics of War and Terrorism (Oxford University Press 2007), The Philosophy of Jürgen Habermas (Oxford University Press 2009), and On the Ethics of Torture (State University of New York Press 2013); he is also editor of Do All Persons Have Equal Moral Worth? (Oxford University Press 2014). He is currently writing two books on just war theory and the ethics of violence, the first of which is entitled Self-Defense, Necessity, and Punishment: A Philosophical Analysis (Routledge 2020).

ORCID

Uwe Steinhoff http://orcid.org/0000-0001-5805-6945

Notes

1 Parry (2015) seems to be unaware of these passages, which undermine his argument concerning the role of the criterion of legitimate authority within the just war tradition.

2 He is usually referred to as “Vitoria,” but some of his works edited by others feature him as “Victoria.” I refer to him as “Vitoria” although in the references I had to list him as “Victoria.”

3 See on this concept, Suárez (2006, 345).

4 On “right intention,” see Steinhoff (2014, section II).

5 This suggestion has been made by an anonymous reviewer.

6 Coates (1997, 124) also claims that legitimate authority is “logically prior.” Thompson (2005) seems to follow him in this respect. For a critique of their positions and some further arguments against the legitimate authority criterion, see Steinhoff (2007, ch. 1).

7 I have elsewhere at length developed and defended a definition of war that allows for private and individual wars. See Steinhoff (2009).

8 For defenses of the claim – to the extent that it should be necessary to defend the obvious – that these conditions can be satisfied by rebel movements and other non-state actors, see, for instance, Steinhoff (2007, 17–18), Schwenkenbecher (2013, 162–165), Steele and Amoureux (2009), and Valls (2000, 70–72).

9 I allowed for some rudimentary form of legitimate authority to be retained, in the sense of an epistemic requirement (Steinhoff 2007, 20–21). This epistemic requirement, however, is in fact already incorporated in the subjective element of a justified war, namely “right intention,” which makes an independent criterion of legitimate authority redundant. See also the discussion below.

10 The American Model Penal Code codifies the choice of evils justification in section 3.02. As far as I am aware, all Western jurisdictions have a lesser evil or necessity justification, either explicitly or implicitly.

11 Benbaji himself accepts that an authority can be overridden if it is “clearly mistaken” (2016, 20).

12 Purves and Jenkins (2016) and Janzen (2016) have recently argued that the right intention criterion should be given up altogether. Obviously, I disagree; see Steinhoff (2018) and (2020). Suffice it to note in the present context that if they are correct, then their entirely objectivist position undermines my account of right intention as much as Benbaji’s epistemic or probabilistic argument for the “veto rights” of “Beneficiary” and “Bearer.”

Additional information

Funding

The research presented in this article was supported by a grant from the Research Grants Council, University Grants Committee, of the Hong Kong Special Administrative Region, China (Project No. HKU 17610315).