In response to some pushback on this post.
Should we treat state officials differently from other people? Suppose someone puts on a siren and goes speeding through traffic. Why should we defer to them?
One answer is that it depends solely on their purpose. A vigilante who puts on a siren to pull over a driver who is violating the speed limit has just as much right to authority as a police officer who does so. Conversely, a police officer who arrests someone for ingesting a plant is just as wrong as a vigilante who does so.
I do not think that answer holds up. At some point, we need more than just on-the-spot moral intuition. We need articulated laws. Who articulates the laws? Going with the principle of treating government officials no differently from anyone else means that laws articulated by legislators are no different from laws articulated by anyone else.
I continue to believe that it makes sense to think about government officials having rights and responsibilities that differ from that of other citizens. Although we certainly can and should make moral judgments about how they exercise those rights and responsibilities, I do not think that the simple heuristic of “what if an ordinary citizen did that?” can settle the issue.
The rights for the government need to be derived from moral calculus that says why they are important and under what circumstances. That is where the codified laws are important is to pre-define what is acceptable under what circumstances.
The problem has become that the ‘rights’ part of the government is becoming un-moored from the ‘responsibilities’ part. One of those responsibilities has to be to prevent the misuse of the rights when they are not used in the approved fashion. The consequences to a government agent who misuses the rights must be much higher than an ordinary citizen who breaks the same rule without the cover of ‘rights’. A police officer who speeds through a red when not responding to a call should be suspended and personally fined more severely than the same ticket would be for a civilian and if repeated, terminated from employment. This does not happen currently.
As I see it, rights are simply generally true precepts derived from consequentialist arguments. They are not metaphysically absolute. As such, it is not out of the bounds of logic to recognize that rights may be violated if it is for an authentic and immediate greater consequentialist good.
The model for government authority, therefore, is not that government has more rights than other people, but rather that government is entrusted to violate rights under certain very prescribed circumstances. As Jesse notes, because they are trusted with that authority, government agents violating rights outside of those prescribed circumstances should face greater consequence than private citizens would.
An example here is immigration. Yes, borders should be open. Nonetheless, border checkpoints are an opportunity to stop people who are authentic threats to the populace. But by what right can the government prevent a person with a communicable disease from entering the territory? The answer is, by no right whatsoever. We simply recognize that this particular violation of rights, strictly prescribed, servers the greater public interest.
The model then, is that no one has more rights than an individual, and the rights of all associations of individuals are entirely derived from the rights of the individuals. But sometimes rights might need to be violated. And we know from hard experience that we need to have customs and rules for violating people’s rights by, say, putting them in prison. Government is the organization entrusted with the leeway to violate those rights, though anyone else should be able to as well with sufficient cause.
But we should never forget that government really is violating people’s rights.
Are we all agents of the Law; or, is the Law an agency for us all?
I continue to believe that it makes sense to think about government officials having rights and responsibilities that differ from that of other citizens. Although we certainly can and should make moral judgments about how they exercise those rights and responsibilities, I do not think that the simple heuristic of “what if an ordinary citizen did that?” can settle the issue.
Drawing from my above comment, I think it makes more sense to believe that government officials are violating rights without societal reprobation than it does to try to divine an objective model of different rights for government officials.
In the ideal circumstance, where government behaves in a largely libertarian fashion, it is likely that both theories will yield very similar results. But in any circumstance short of that, where government claims powers a libertarian society wouldn’t want it to have, what is the better argument against the intrusion? “Government is not operating within the complex extension of rights that we have derived that can properly be granted to government.” …or… “Government is violating these particular people’s rights, and the claimed reasons do not justify that violation.”
Fundamentally, government is an institution that violates rights without societal reprobation. That very definition is our greatest defense against its abuses.
Now you’re just asserting there is exactly the morally relevant difference you want between state and non-state actors without giving any argument!
“At some point, we need more than just on-the-spot moral intuition. We need articulated laws.”
But we need on the spot moral reasoning to decide whether we ought to follow the laws in each individual case. The arguments there can be split into (a) arguments for/against that specific act, irrespective of whether it’s lawful; (b) arguments that one should always follow the law.
Huemer, in the tradition of the MBE Smith paper I linked before, tackles the arguments that one should always follow the law (arguments for political authority). They are all extremely weak, and ultimately cannot stand up. Without them we have no reason to treat agents of the state differently, so the case falls to its merits.
You’ve also made a completely illegitimate step between “we cannot always rely on on the spot moral reasoning” and “we must have a body of laws”. A more convincing alternative to purely on the spot reasoning would be a body of moral laws or heuristics established and followed in lieu of doing the thinking in each case.
Again, the question is not “what if an ordinary citizen did this?” so much as, “what if the law with respect to this act was different?”. Since attempts to establish political authority fail, there doesn’t appear to be a difference.
I apologise for the slightly garbled nature of my post above; I hope the points contained therein are reasonably intelligible.