Alex Brandon/Associated Press
Jonathan Kwan is an Inclusive Excellence Postdoctoral fellow in Immigration Ethics with the Markkula Center for Applied Ethics and the College of Arts and Sciences at Santa Clara University. Views are his own.
The deaths of George Floyd, Breonna Taylor, and Tony McDade are but the latest examples of state-sanctioned police brutality against people of color, particularly African Americans. The killing of these individuals are not merely isolated incidents (which can be chalked up to “a few bad apples,” as it were). Rather, they are part of a pattern of institutionalized racism that runs deep within United States policing and, more broadly, its criminal justice system and practice of mass incarceration. It is important to situate these deaths within the larger context of structural racism that has always been present within the United States to see how they are not only cases of egregious racial injustices (they are), but also how they fundamentally undermine the legitimacy of the United States government. What exactly is the difference between the values of justice and legitimacy and why does it matter? And what implications does the illegitimacy of the United States have for the legitimacy of protests against police brutality?
Political philosophers and theorists generally distinguish between justice, which concerns the overall moral quality of a nation-state, i.e. whether it gives its subjects what they are owed, and legitimacy, which refers to a state’s right to rule, i.e. to make and enforce laws. Although legitimacy and justice are related concepts, legitimacy makes a distinct and weaker demand than justice. After all, no state is perfectly just (by “state” I mean, for example, the United States or Ghana but not California). Nonetheless, even if a state was slightly less than perfectly just, it could still be legitimate and thus have the proper standing to rule and exercise jurisdictional authority over its subjects. A corollary of a state’s legitimate right to rule is the obligation of its subjects to obey its laws (an obligation that may be incurred even if those laws are not perfectly just).
Suppose, for example, that a state’s tax system was moderately though not ideally just and generally distributed wealth fairly in ways that gave each citizen what they were due. Even if the tax system was not totally just (perhaps it should be even more progressive), subjects would still be obligated to pay their taxes provided that the state as a whole was legitimate. Citizens who disagreed with the current tax system should then seek to change the state’s tax laws from within and through formal political channels rather than refusing to pay their taxes or pursuing illegal avenues of political and institutional change. (Henry David Thoreau famously refused to pay his taxes because of his opposition to slavery and the Mexican-American War.)
What is required for justice and legitimacy is, of course, a matter of ongoing public and philosophical debate as is the question of where exactly to draw the line between the two values given that legitimacy is a weaker demand than justice. However, on any plausible account, protections of the most basic human rights such as the right to life itself are part of the bare minimum that is required for both justice and legitimacy. We do not need a fully worked out theory of legitimacy then to know that state-sanctioned police killings of innocent individuals (particularly those who are members of a group that has been and continues to be oppressed based on the morally arbitrary characteristic of their race) render the United States illegitimate.
For some (Indigenous peoples, African Americans, people of color, and other oppressed minority groups), the illegitimacy of the United States may seem so obvious as to not even be worth mentioning. But for many others (I surmise, in mainstream society more broadly), the claim that the United States is not only unjust but illegitimate is a radical and uncomfortable one to confront. The image of the United States as a paragon of prosperity, freedom, and democracy in the West is well-entrenched and difficult to shake especially for those whose own self-conception is tied to their sense of national identity. For some, any disparagement of the nation’s moral soul can feel like an affront to one’s own self-respect.
The illegitimacy of the United States has some serious and I think generally underappreciated implications. In particular, the illegitimacy of the United States means that its subjects have no obligation to obey its laws merely by dint of the political authority of the United States. This does not mean, however, that anything goes, so to speak, and that any and all violations of the laws of the United States are then morally permissible. For instance, prohibitions against murder are still morally valid and so people still have duties to follow laws that accord with such morally valid norms. Nonetheless, it does mean that subjects do not have duties to follow the laws of the United States just because they are laws issued by a legitimate authority (since the United States is not such a legitimate authority). (Philosophers often refer to such duties to follow the laws of a legitimate authority as specifically political obligations to distinguish them from simply moral obligations to follow laws that happen to be consistent with morally valid norms.)
Take the public discourse surrounding the widespread protests that have emerged in the wake of these recent instances of police brutality against Black people. The framing of these protests, especially by some politicians and mainstream media outlets, often occurs against an implied background assumption that the United States is legitimate. Protests are frequently contrasted against or themselves characterized as looting or rioting, which serves as a pretext and justification for increased police control and militarization (e.g. the enforcement of curfews and the mobilization of the National Guard). Ironically, this law-and-order response to “unruly” protests is precisely part of what protesters are criticizing. My concern here is not about whether protests have been peaceful (most have been) rather than instances of looting or rioting (which can themselves be negatively loaded and charged terms and thus not merely neutral descriptions).
As I see it, the rhetoric both of criticizing protests as looting and rioting and attempting to bolster the legitimacy and respectability of protests by distinguishing them from looting and rioting tends to take the legitimacy of the United States for granted (at least implicitly). For if the United States is legitimate, then its subjects are obligated to obey its laws and the only permissible protests would have to be peaceful and lawful. Thus, even defending and seeking to legitimize protests by distancing them from looting and rioting may implicitly rely on the flawed assumption operating in the background that the United States is legitimate.
Under conditions of an illegitimate state, what sorts of protests and resistances are legitimate? The answer to this question is bound to be a complex one, dependent on both the kind of illegitimate state and kind of protest and resistant action under consideration. I do not attempt to provide here a comprehensive answer to this question just as I do not aim to offer a fully worked out theory of what is required for a state to be legitimate. My point here is simply that whatever the answer is, it most certainly is not the case that under conditions of an illegitimate state, only a circumscribed and sanitized domain of peaceful and lawful protest should be considered legitimate.
Perhaps what is needed under conditions of state illegitimacy, as Candice Delmas has pointed out, is not only civil disobedience (which is generally understood as unlawful though non-violent and in which lawbreakers willingly accept punishment to demonstrate respect for the legal system as a whole), but uncivil disobedience. After all, existing norms of civility within a society marked by structural injustices and illegitimate political institutions may themselves be bound up with and complicit in ongoing harms and wrongs.
The injunction to “be civil” may be nothing more than an excuse to maintain an unjust and illegitimate status quo. What may be needed is not civility but disruption and discomfort, both jarring and jolting, and above all revolutionary and transformational change to the basic institutions of our society. Pointing out the potential legitimacy of such acts of uncivil disobedience and resistance is not to condone wanton violence and destruction. However, it is to say that the focus should not be on the law and order (of an illegitimate system) that protests appear to threaten but on the very violence of police against protesters (police cars driving into crowds, the indiscriminate use of tear gas and batons, etc.), which is precisely what protesters are criticizing and fighting against.
I take it that a core part of the ethical force of protests and social movements is to call on us to reimagine society without an injustice that has been taken as a given for far too long. But what does it say about the legitimacy of our political institutions and our collective moral imagination when the one response our institutions can muster against protests calling precisely to abolish and defund the police is to ramp up the very presence of militarized police?