Philos Stud

https://doi.org/10.1007/s11098-021-01615-2

Costly authority and transferred responsibility

Yitzhak Benbaji1

Accepted: 18 January 2021

 The Author(s), under exclusive licence to Springer Nature B.V. part of Springer Nature 2021

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.

Keywords Responsibility
Legitimate authority
Liability
Jonathan Parry

Massimo Renzo

1 Introduction

Revisionist just war theorists argue that the fact that soldiers follow a (de facto)
authority has no impact on their standing as agents of the deaths that they actively
cause. In a New York Times op-ed, Jeff McMahan, one of the prominent writers in
this school of thought, argues for what we can call ‘the non-transferability
principle’. McMahan states that ‘‘it is individual persons, not states, who kill and are
killed in war, and [it is] they, rather than their state, [who] bear primary
responsibility for their participation and action in war.’’ (McMahan 2012) Whatever

& Yitzhak Benbaji

ybenbaji@gmail.com
1
Law School, Tel Aviv University, 6997801 Tel Aviv, Israel

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the justified laws of war are, they cannot absolve individuals of the moral
responsibility for the unjust and unjustified1 killings that they commit.2 Moreover,
in McMahan’s view, unjust combatants are liable to defensive killing in war, in
virtue of the fact that they are morally responsible for wrongfully killing innocents.
Just combatants, by contrast, do nothing to lose their right to life, since in killing
enemy soldiers, they realize their right to self-defense.
Some philosophers—notably, David Estlund, Jonathan Parry, and Massimo
Renzo—insist, pace McMahan, that in some cases, following an order—treating
such an order as authoritative or as a content-independent reason—is permissible
even if it causes an objectively unjustified harm. (Estlund 2007; Parry 2014, 2017;
Renzo 2018) These writers argue that, sometimes,3 ignoring one’s own judgement
and following the commands of others is morally required because, and to the extent
that, it is a better means of doing what one ought to do (independently of these
orders).4 Put in Estlund’s words, a soldier might ‘‘be wrong to substitute his own
private verdict and thwart the state’s will’’; he would be wrong to do so ‘‘when the
[legitimate, democratic] political and institutional process producing the commands
is duly looking after the question whether the war is just.’’ (Estlund 2007: 213)
Renzo’s important modification of Estlund’s view does not change its gist; after he
carefully examines an order, a soldier in a legitimate state is under a pro tanto duty
to follow this order if she is not sufficiently certain that the order is unjustified.5
Estlund, Parry, and Renzo agree that ‘‘even though the victim is wronged by the
unjustly warring side’’, in these cases the soldier on the unjust side is morally
permitted to follow her superiors’ orders. (Estlund 2007: 215).6
Following Parry, I will call this view the ‘‘Authority View’’. Interestingly,
however, the Authority View does not challenge McMahan’s non-transferability
thesis. To the contrary: Parry explicitly rejects the thought that ‘‘the responsibility
for the subject’s actions lies solely with the authority under which she acts, thereby
absolving the subject of wrongdoing if their actions are unjust.’’ (Parry 2014: 183)
Committing a presumptively wrongful action (like killing an innocent) under a

1
Following Helen Frowe (personal communication), I assume that lesser evil justified harm might be
unjust.
2
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.
3
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.
4
Jonathan Parry explicitly appeals to the service conception of authority in justifying this view. It seems
to me the most promising theoretical background. Raz’s service conception of authority was seminally
developed in (Raz 1990: 35ff, 1986: 39ff).
5
For Renzo’s critique of Estlund’s view, see Renzo (2013).
6
I relax Estlund’s strong statement that following the order is obligatory, in order to make it
acceptable to Renzo and Parry.

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legitimate authority might be permissible but not because the responsibility for this
action is transferred to someone else.
This essay does not decisively refute Parry’s claim that, in the circumstances that
he, Estlund, and Renzo describe (which I call ‘‘regular authority circumstances’’),
soldiers are responsible for the killings that they perform. Instead, I aim to elaborate
a specific counterexample to the general claim (to which McMahan seems to be
committed) that moral responsibility is nontransferable. I will show that in ‘‘special
authority cases’’, the deference of soldiers to their superiors in carrying out a
particular mission involves transferred responsibility. A military leader might be
solely responsible for the killings that her subordinate commit as a result of
following her orders.
Let me briefly explain the distinction between regular and special authority cases
(a distinction I will elaborate in more detail below). In regular and special authority
cases, one person, ‘‘Expert’’, has an epistemic authority over another, ‘‘Assistant’’,
regarding a certain domain of action. Assistant ought to abide by Expert’s directives
in order to fulfil a duty to which Assistant is subject (independently of Expert). The
special cases are distinguished by two additional properties. First, to exercise
Expert’s authority over Assistant, Expert and Assistant ought to agree in advance on
a certain division of labor. Second, Expert’s authority is known to both parties
(Expert and Assistant) to be ’costly’. Expert’s authority comes at a price because
Assistant and Expert can benefit from Expert’s epistemic superiority only if they put
themselves at some disadvantage. Specifically, the agreement that Expert and
Assistant should reach requires that Assistant will voluntarily locate himself in an
epistemic position from which he will not be able to assess Expert’s instructions,
while Expert will not expect Assistant to correct her mistakes. Indeed, in the special
cases discussed here, Assistant will be unable to identify even obvious mistakes that
would usually stand out to an ordinary observer. I will argue that in special authority
cases, the moral responsibility for the undesirable outcomes that Assistant causes as
a result of following Expert’s orders is transferred from Assistant to Expert.
The paper proceeds in five sections. In Sect. 2, I present McMahan’s conception
of agential minimal responsibility. This essay argues that responsibility of this type
is transferable despite McMahan’s claim to the contrary. In Sect. 3, I briefly
challenge the view that in regular authority circumstances, Assistant is under a fact
relative duty to treat Expert’s mistaken instructions as authoritative. I will show that,
at least prima facie, Assistant has merely an evidence-relative permission to abide
by Expert’s mistaken instructions. In Sect. 4, I show that in special authority
circumstances, Assistant’s duty to submit to an epistemic authority grounds a fact-
relative permission to treat Expert’s mistaken instructions as authoritative. I will
further argue that in these cases, the permission to follow mistaken instructions is
best explained in terms of transferred responsibility. In following Expert’s mistaken
orders, Assistant commits no wrong because the minimal responsibility for any
harm that Assistant causes due to following Expert’s instructions is transferred to
Expert. In Sect. 5, I present a case of transferred responsibility in the context of war.
Section 6 concludes.

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2 Minimal responsibility

McMahan’s responsibility account of liability to defensive harm starts off by

demarcating a minimal (‘‘eccentric’’ (McMahan 2004: 723)) sense of moral
responsibility. Let me define it. An agent is minimally responsible for a threat only
if the threat can be appropriately attributed to her ‘‘moral agency’’—that is, only if
she has some degree of physical and psychological self-control over the action that
creates the threat, and a capacity for rational choice with respect to it. Indeed, an
agent’s ‘‘absence of a capacity for moral agency […] absolve[s her] of all
responsibility for [her] action.’’ (McMahan 2004: 724; cf. Lazar 2010).
Moral agency is necessary, but not sufficient, for moral responsibility. The
degree to which a person is responsible for a harmful threat is also sensitive to two
other factors: the degree to which the threatened harm is foreseeable, and the degree
to which her harmful action is subjectively justified. Let us begin with foresee-
ability. If the threat is strictly unforeseeable, the agent is not responsible for it at all.
However, the foreseeability condition is undemanding: an agent is absolved of
responsibility for a threat if she could not have known that her action was risky or
that it might contribute to the generation of a threat. In contrast, if the agent
voluntarily engages in a ‘‘risk-imposing activity, such as driving a car, [she] will be
responsible if, contrary to reasonable expectation and through no fault on [her] part
… that activity creates a threat or causes harm to which the victim is in no way
liable’’ (McMahan 2004: 723). A combination of agency and the foreseeability of a
threat is sufficient for moral responsibility for it.
Additionally, and as importantly, facts about moral justification and moral
permissibility partly determine the degree to which a person is responsible for an
unjust threat, and thus, the degree to which she is liable to defensive harm. Consider
a person who is driving an ambulance to the site of an accident to evacuate one of
the victims to the hospital. She is driving conscientiously, ‘‘but a freak event occurs
that causes the ambulance to veer uncontrollably toward a pedestrian.’’ (McMahan
2009: 166) Unlike the driving of the conscientious driver, the driving of the
ambulance driver is more than subjectively permissible; it is morally justified in the
evidence-relative sense. The ambulance driver ‘‘justifiably believes that she has a
strong moral reason to do exactly what she is doing.’’ (McMahan 2009: 167)
McMahan insists that while the ambulance driver is even less responsible for the
harm she causes than the conscientious driver, she is still responsible for the threat
to the pedestrian (and therefore liable to defensive killing). As noted, I will argue in
Sect. 4 that minimal responsibility, in this ‘‘eccentric’’ sense, is transferrable.

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3 The authority view

In justifying the authority of states, philosophers usually argue for two propositions:
(1) A legitimate state has a claim-right that its citizens abide by its laws and
cooperate with it (and with each other) in pursuing certain public purposes.7 (2) The
state has a liberty-right (or even a duty toward its other citizens) to use force to
ensure that citizens habitually obey its laws and cooperate with it (and with each
other) in promoting these purposes. In what follows I will assume that the ‘natural
duty’ reading of Rawls’s theory of justice provides a partial explanation of the
nature and scope of the authority of legitimate states. According to this reading, a
state is entitled to use force in securing habitual obedience to its laws if (but perhaps
not only if) this enables citizens to fulfil duties to which they are subject ‘‘in the
state of nature’’.8
For example, it is widely agreed that in the state of nature, a private person must
rescue strangers from death if she can do so at a reasonable cost. Similarly, a private
person in the state of nature ought to provide shelter for strangers if she can do so at
a reasonable cost. Yet, most private persons cannot promote these mandatory
purposes by themselves. They can do so only together, by establishing and/or
supporting the just institutions of a state. According to the natural duty reading,
Rawls infers that citizens ought to treat the instructions of just institutions as
authoritative, provided that the officials who issues them aim to coordinate citizens’
contributions in order to achieve mandatory purposes and that said officials are in a
favorable epistemic position to do so. So understood, the moral standing of
legitimate states entails that they are duty-bound to promote the purposes listed
above on behalf of their citizens by, inter alia, coordinating citizens’ contributions
to achieve such purposes. Typically, therefore, each liberal state has a right against
its citizens that they follow its instructions in promoting these purposes. Indeed,
both the state and its citizens are subject to the pro tanto duty to ensure that no
citizen is starving, that everyone is safe, and so forth.
The following example—an instance of ‘‘regular authority cases’’—illustrates the
Authority View attributed to Rawls. A good-willed person (‘‘Assistant’’) and a
professional lifeguard (‘‘Expert’’) can collaborate in rescuing their mutual friend
(‘‘Victim’’) from drowning. Expert is too far away to save Victim, while Assistant is
nearby but does not know what to do. Expert can guide Assistant, and Assistant’s
only means of rescuing Victim involves treating Expert’s instructions as author-
itative. According to Renzo’s weakest version of the Authority View, Assistant has
a ‘‘presumptive’’ reason to abide by Expert’s instructions. Suppose that after

7
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).
8
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).

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deliberating on the merits of the case, Assistant suspects that Expert’s instructions
are mistaken, but his available evidence cannot rebut the presumption that Expert’s
instructions are justified. His suspicion notwithstanding, Assistant should treat
Expert’s instructions as authoritative.
Presumptive reasons might ground pro tanto duties.9 Suppose that Assistant is
under a fact-relative duty to rescue Victim. If so, he is under a pro tanto duty to
submit to Expert’s authority. According to the weakest version of the Authority
View, it follows that Assistant is under a fact-relative duty to presume that Expert’s
instructions are justified. Moreover, this duty—the duty to submit to Expert’s
authority—is enforceable. Imagine that Expert instructed Assistant to swim towards
Victim and to hold her head above the water level. Assistant believes that he should
instead reach the boat that might bring Victim to the shore as fast as possible. If
Expert is under a fact-relative duty to offer her services to Assistant, she is entitled
to stop Assistant from aiding Victim in the wrong way, viz., by rushing to the boat.
Expert is entitled to use some force in doing so.
Does Expert’s ‘regular authority’ generate a fact-relative duty even if Expert
makes an honest mistake? To explore this question, suppose that, unfortunately, the
regular authority case just described has a tragic ending:
Killing: In trying to rescue Victim, Assistant ought to treat Expert’s
instructions as authoritative. Stressed, Expert orders Assistant to hold Victim’s
head above the water in the wrong way. Assistant double-checks Expert’s
instructions and suspects that Expert is making an honest mistake. He isn’t
sure, though. In light of the presumption that, in this domain of action, Expert
knows better than Assistant what Assistant should do, Assistant follows
Expert’s order. As a result, Assistant breaks Victim’s neck.
Proponents of the Authority View seem to believe that in Killing, Assistant is under
a (pro tanto) fact-relative duty to follow Expert’s orders. Renzo’s argument points
to the fact that potential victims have a clear interest that ordinary people treat the
instructions of epistemic authorities as content-independent reasons. Thus, ‘‘a
hospital in which nurses take doctors’ decisions as mere advice, rather than
authoritative directives, is one in which we would not want to find ourselves. For the
efficiency of a hospital largely depends on the capacity of doctors to rely on the fact
that their directives will be taken as authoritative.’’ (Renzo, 2018: 9) The same is
true of states: ‘‘legitimate states perform crucially important functions, which are
necessary to avoid the dangers of the state of nature. …they can do so only if they
have the moral power to impose pro-tanto moral duties on their subjects, a power
that does not disappear when states make ‘honest mistakes’.’’ (Renzo 2018: 9) Call
this conjecture is ‘‘the state of nature factual assumption’’.
I will not be able to address Renzo’s argument in detail. Let me raise preliminary
worries, though. The first thing to note is that the state of nature assumption (on

9
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.

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which the argument in favor of the legitimate authority of states is based) is

questionable. It seems that political societies can avoid the dangers of the state of
nature even if they are able to subject their citizens to legal rather than moral duties.
But let us grant, for the sake of argument, that without the power to confer moral
duties to obey some of their laws, states will malfunction. A further worry now
arises. Does the state of nature assumption support the view that in cases of honest
mistakes, legitimate states have the moral power to subject an executioner to the
duty to kill an innocent (or to subject a prison guard to the duty to imprison an
innocent)? Most philosophers seem to answer negatively. They believe that in the
fact-relative sense, killing (or imprisoning) innocents is impermissible even if the
killing will bring about a somewhat better outcome, impartially considered. Indeed,
it seems that disobedience might be obligatory even if it would somewhat
destabilize the state.
These short remarks are insufficient for ending the debate between proponents
and critics of the Authority View with respect to Killing-like regular authority cases.
I raise them in order to explain why I think that in special authority cases (to be
presented in the next section) the moral impact of Expert’s authority is clearer, and
why this moral impact is best explained in terms of transferred responsibility. I will
therefore assume (for the sake of the argument) that the Authority View shows that
in regular authority cases, Assistant gains a merely evidence-relative permission to
follow Expert’s mistaken orders. I will argue that in special authority cases, Expert
is responsible for the unjust harms that Assistant causes by following Expert’s
instructions, and that therefore, Assistant gains a fact-relative permission to abide by
them.

4 Minimal responsibility for the unintended results of an action

under special authority

4.1 Transferred responsibility in special authority cases

Special authority cases share most of their important features with regular authority
cases. They are distinguished from the latter by two additional features. First,
special authority cases meet the explicit agreement condition: in order to exercise
Expert’s authority over Assistant, Expert and Assistant should explicitly agree on a
division of labor under which, during their joint action, Expert deliberates on both
her own and Assistant’s behalf, while Assistant treats Expert’s instructions as
authoritative. Expert’s epistemic superiority will be helpful only if she and Assistant
reach an agreement that fixes such a division of labor between them. Second, special
authority cases meet the costly authority condition. The mandatory agreement
between Assistant and Expert requires that Assistant will voluntarily locate himself
in an epistemic position from which he will not be able to assess Expert’s
instructions. Accordingly, Expert knows that she cannot expect Assistant to correct
her mistakes. Indeed, in the epistemic circumstances in which Assistant should
position himself, even the most obvious mistakes that Expert might commit will not
stand out.

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Consider a specific special authority case, Special Killing. Assistant and Expert
ought to collaborate in rescuing their mutual friend, Victim, from drowning. Neither
of them can do so alone, hence, by ought-implies-can, neither Assistant nor Expert
are under a fact-relative duty to rescue Victim by themselves. They can rescue
Victim together, but only if Assistant treats Expert’s instructions as authoritative.
Moreover, their success depends on correctly dividing the labor. As Expert
immediately realizes, Assistant should swim towards Victim and hold his head
above the water level, while Expert should reach the boat with which they will bring
Victim to shore. An explicit agreement between Expert and Assistant is the only
way to fix this division of labor.
As a special authority case, Special Killing meets the costly authority condition.
Expert needs to know in advance that Assistant will not question her instructions.
Having a self-confidence problem, she will otherwise be unable to employ her
expertise properly. Thus, the agreement Expert and Assistant ought to reach
includes an unusual clause. To secure Assistant’s blind obedience, Expert and
Assistant agree that Assistant will take a ‘‘blurring pill’’, a pill that literally prevents
Assistant from assessing Expert’s instructions. In a more realistic version of Special
Killing, Assistant and Expert agree in advance that, while doing his part, Assistant
will lose sight of the rescue operation as a whole and, therefore, will not be able to
identify Expert’s mistakes. In both versions, Assistant will be unable to assess
whether he is lifting Victim into the boat in the right way. In turn, Expert agrees that
during the rescue operation, she will deliberate on how to proceed without relying
on Assistant’s supervision.
Special Killing has a tragic ending:
Special Killing: After they agreed to act together and to divide the labor in the
right way, Expert makes an honest mistake. Stressed, she orders Assistant to
lift Victim onto the boat in the wrong way. In light of the agreed (justified)
division of labor dictated by Expert’s costly authority, Assistant cannot ensure
that he lifts Victim to the boat in the right way, because of his role in the
rescue operation under the agreement. While he is holding Victim’s head
above the water level, he has no epistemic access to any fact that might
suggest that Expert is negligent. As far as Assistant can know, he should
follow Expert’s orders. By doing so, he breaks Victim’s neck.
According to one analysis of Special Killing (an analysis I will reject shortly),
Assistant rightfully authorizes Expert to deliberate on his behalf and rightfully
suspends his capacity to identify Expert’s mistaken directives. Yet, the steps taken
by Assistant were justified merely in the evidence-relative sense.10 In the fact-
relative sense, Assistant was under a duty not to submit to Expert’s authority, given
that doing so caused him to kill Victim. According to this analysis, Assistant had no
fact-relative duty to irreversibly suspend his capacity to deliberate on the merits of
the case. His self-imposed epistemic limitations had no effect on the fact-relative

10
I shall not present the fact-relative/evidence-relative. I rely on Victor Tadros’ presentation in his,
Tadros (2011), pp. 220–24.

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duties to which he was subject. To the contrary, in the fact-relative sense, he should
have ensured (before following Expert’s directives) that Expert was not making a
tragic mistake. True, Assistant is fully excused for killing Victim. He justifiably
believed that he should enter the partnership with Expert and submit to her
authority. He also justifiably believed that he needed to occupy an epistemic
position from which he could not identify Expert’s mistakes. Alas, these are all
excuses. His beliefs were false.
This analysis strikes me as counterintuitive, since it assumes that Assistant’s
present fact-relative duties are determined by facts about the unknowable future.
Assume, however, that the future is indeterminate, or alternatively, that one’s fact-
relative duties at t0 are determined only by facts that are accessible at t0 to an
idealized human observer. To simplify the discussion, let us employ the first
assumption. In its light, we can assume that when Assistant and Expert enter the
partnership and agree on the optimal division of labor, there is no fact of the matter
as to whether following Expert’s instructions will lead Assistant to break Victim’s
neck. We can therefore assume that when Expert and Assistant reach an agreement
that fixes the division of labor (which rightfully includes voluntary suspension of
Assistant’s deliberative capacities) Assistant and Expert are under a (fact-relative)
duty to reach this agreement.11
How, then, should we understand Special Killing? I will elaborate a normative
analysis of this case by contrasting it with a case I will name Semi-Special Killing.
In Semi-Special Killing, Assistant uses a robot (Robot) as a means of rescuing
Victim. Robot knows how to rescue people from drowning and Assistant would be
helpless without its guidance. Semi-Special Killing resembles the unrealistic version
of Special Killing in another respect: Assistant has to take a blurring pill in order to
activate Robot since Robot does not serve people who might second-guess its
instructions. Finally, the ending of Semi-Special Killing is as tragic as the ending of
Special Killing. At tF, after Assistant takes the blurring pill, a freak event causes an
electrical short-circuit in Robot. Nothing at t0 could have determined Robot’s tF
failure. Assistant follows Robot’s instruction, but the instruction is misguided. As a
result, Assistant breaks Victim’s neck.
Here is what I take to be the correct normative analysis of Semi-Special Killing.
Assistant is under a fact-relative duty to rescue Victim and to take the necessary
steps for doing so. At t0, Robot’s tF failure is undetermined. Therefore, Assistant is
under a fact-relative duty to use Robot’s expertise and, in order to do so, suspend his
own deliberative capacities. Nevertheless, at tF—when Robot turns out to be an
obstacle—Assistant cannot rescue Victim and is no longer under a duty to do so.
Instead, at tF, he gains a fact-relative duty not to follow Robot’s mistaken
instructions; indeed, he is under a duty not to lift Victim in the manner Robot
recommends. Needless to say, Assistant is fully excused for not realizing that he is
violating this duty.

11
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.

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Compare Semi-Special Killing to Special Killing. Unlike Expert, Robot has no

beliefs, no desires, and no moral obligations; it is not a moral agent. Hence,
Assistant and Robot do not reach a binding agreement under which some of
Assistant’s duties are undertaken by Robot. Instead, Assistant uses Robot; he does
what he has to do in order to enjoy its services. At tF, when it turns out that Robot is
useless, Assistant acquires a fact-relative duty not to follow its commands.
In Special Killing, by contrast, Assistant’s submission to Expert’s authority must
proceed by an agreement between two moral agents; at t0, Expert and Assistant are
duty-bound to enter an agreement that fixes a certain division of labor between
them. The agreement commands Assistant to submit to Expert’s authority as well as
to suspend his deliberative capacities vis-à-vis Expert’s instructions. Since the
agreement is binding, Expert successfully undertakes the duty to deliberate on hers
and on Assistant’s behalf in conducting the operation, and, in particular, to ensure
that in following her instructions, Assistant does not kill Victim.12 Moreover, the
fact that their binding agreement commands Assistant to suspend his deliberative
capacities entails that Expert releases Assistant from the duty to regain his
deliberative capacities at tF, as, due to this agreement, Assistant cannot do so.
A version of the ‘moral alchemy objection’ immediately suggests itself.13 How
can Expert’s agreement to deliberate on hers and on Assistant’s behalf release
Assistant from the tF fact-relative duty not to break Victim’s neck? Usually, no
agreement can free a person from the duty not to kill an innocent third party. Could
the fact-relative duty not to kill an innocent disappear simply because of an
agreement of this kind? Respecting this agreement does not seem so morally
significant. To see why, imagine a conversation between Assistant and Victim,
where Assistant says ‘‘Sorry, I would have a duty not to kill you if the order had
come from Robot. But it came from a person I made an agreement with, and only
because of this, even if everything else is equal, I lack a duty not to kill you.’’ Such
an explanation seems less than compelling.
But this objection misconstrues Assistant’s appropriate response to Victim’s
complaint. Here is what Assistant should say: ‘‘I was under a fact-relative duty to
enter an agreement that subjects me to Expert’s authority and fixes a division of
labor between us. As part of this agreement, I had to agree to suspend my
deliberative capacities while acting under her authority. In return, Expert released
me from my duty to check the soundness of her instructions.’’ Call this ‘‘Assistant’s
response’’. If it is cogent, the significance of the Special Killing agreement dictated
by Expert’s costly authority is far reaching: Assistant is not merely excused for
wronging Victim; rather, Assistant does not wrong Victim at all.

12
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.
13
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).

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Is Assistant’s response cogent? You might suspect that while Robot cannot
undertake any duty or release people from their duties, this doesn’t change the fact
that in Semi-Special Killing Assistant has a duty to constrain his future self in order
to use Robot’s services. To understand the distinction between the cases, note that
(as I already suggested) when Robot fails at tF, Assistant gains a fact-relative duty to
stop relying on malfunctioning Robot. I now further suggest that in Special Killing,
Expert, a moral agent, has the moral power to release Assistant from the fact-
relative duty to ensure that he does not harm Victim. It becomes Expert’s duty to
ensure that Assistant does not kill Victim, as, under the mandatory agreement,
Expert should deliberate on how to rescue Victim on Assistant’s behalf. In agreeing
to do so, while imposing on Assistant the costs of her authority, Expert releases
Assistant from the duty to assess her plan and instructions.14 Robot lacks the power
to change its and Assistant’s normative standing in these ways.
The idea of transferred minimal responsibility comes into play at this point, viz.,
in explaining how Expert releases Assistant from the duty to ensure that in following
Expert’s instructions, Assistant does not harm Victim. The explanation has three
parts. Two are already familiar. First, Expert’s authority over Assistant (conjoined
with the other features of Special Killing) renders an agreement that fixes a certain
division of labor between them obligatory. Second, since Expert’s authority is
costly, it can be exercised only by an agreement that commands Assistant to
suspend his deliberative capacities while rescuing Victim. The third step employs
the notion of transferred responsibility: under the agreement that divides the labor in
this way, responsibility for the unintended results of Assistant’s obedience attaches
to Expert, not Assistant. In fulfilling his duty to enter the agreement (the agreement
that Expert’s costly authority dictates), Assistant transfers to Expert any respon-
sibility for the unjust harms that he might cause because of following her orders.
And, in collaborating with Assistant and in rightly imposing on him the costs of her
authority, Expert takes responsibility for the undesirable consequences of Assis-
tant’s obedience to her instructions. Therefore, as the unintended results of the
deliberation that precedes the Victim’s killing are solely Expert’s responsibility, it is
Expert who is under the fact-relative duty to deliberate on the merits of the case on
hers and Assistant’s behalf.15
Admittedly, this explanation offers a conception of minimal (agential) respon-
sibility that McMahan would reject. Assistant voluntarily chooses to put Victim at
risk; he voluntarily engages in a permissible (in fact, a subjectively justifiable) but
foreseeably risk-imposing activity that, contrary to his reasonable expectations and
through no fault on his part, kills Victim. McMahan would infer from these facts

14
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.
15
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.

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that Assistant is minimally responsible for Victim’s death. Nevertheless, the

modification I propose is based on one of McMahan’s own comments about the
nature of minimal responsibility, as quoted in Sect. 1. As McMahan stresses, the
absence of a capacity for moral agency absolves one of all responsibility for the
consequences of one’s action. The capacity for moral agency is constituted by the
capacity to deliberate on the merits of the case that one encounters. True, in Special
Killing, Assistant does not suffer from a mental or cognitive defect. Still, in the
circumstances, he permissibly lacks the capacity for moral agency in a specific
domain of action because he irreversibly (and mandatorily) outsources the
deliberative labor to Expert.
This account does not imply that whenever we follow an authority, we are not
moral agents. Nor does it imply that whenever we follow a costly authority, we are
not moral agents. It does imply that since Assistant’s moral agency needs to be
circumscribed in order to enable Expert to exercise her epistemic superiority,
Assistant is not the moral agent of the unintended harmful consequences of his
obedience to Expert. Assistant is not the moral agent of the harms caused by
Expert’s deliberative labor, which Assistant outsourced by an agreement that he and
Expert should have reached. It follows that the minimal responsibility for the
unintended results of Expert’s deliberation attaches to Expert even if Assistant is
their causal agent. Importantly, Assistant is the moral agent of any harm that he
actively inflicted while following Expert’s instructions, if this harm is not a
consequence of Expert’s deliberation.

4.2 Transferred responsibility and Parry’s authority view

In his defense of the Authority View, Parry explicitly rejects the idea of transferred
responsibility. He observes that in regular authority circumstances (like Killing),
when a person justifiably acts under authority, he responds to the second-order
reasons that apply to him. As such, the person is fully rationally intelligible. By
acting out of recognition of higher-order reasons not to deliberate and/or act on his
own assessment of the first-order reasons, Assistant responds to the reasons that
apply to him. Like McMahan, Parry believes that reason-responsiveness (McMa-
han’s moral agency) ‘‘is hard to square with a denial of the subject’s responsibility.’’
(Parry 2014: 173) He infers from the fact that Assistant is reasons-responsive at all
times in the process of obeying the authority that he is responsible for the outcome
of his actions; if one justifiably submits to authority, one is fully responsible for the
unintended outcomes of doing so.
In response, note that in Killing, Assistant permissibly disregards the first-order
reasons for and against following Expert’s instructions. Hence, despite Parry’s claim
to the contrary, Assistant does not seem fully responsive to the reasons for which he
acts; after all, according to Parry’s Razian version of the Authority View, Assistant
needs Expert to respond to the first-order reasons that apply to Assistant. It might be
thought, then, that Assistant is responsible only for submitting to Expert’s authority
and not for Victim’s death, as he was entitled to disregard the reasons for the
particular action that caused Victim’s death. I won’t further pursue this reaction to
Parry’s first objection to the idea of transferred responsibility, however. As I shall

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argue shortly, even if Parry is right with respect to Killing, no similar objection
follows with respect to Special Killing.
However, let me briefly mention Parry’s second objection to the idea of
transferred responsibility. He argues that ‘‘normally, a successful defense of non-
responsibility to a charge of wrongdoing involves claims to limited cognitive
capacity…’’ (Parry 2014: 174). In regular authority cases like Killing, Assistant
does not suffer from a cognitive limitation and is thus fully responsible for the death
that he caused. This objection also strongly suggests that Parry employs McMahan’s
conception of minimal responsibility; if Assistant’s blindness to the first-order
reasons to which Expert ought to respond is a result of rational, autonomous self-
limitation rather than a result of a cognitive defect, Assistant is responsible for the
results of his actions.
The crucial difference between regular and special authority cases is the
following. In Killing, Assistant is under no duty to actively suspend his cognitive
capacities, as he can submit to Expert’s authority without doing so. In Special
Killing, by contrast, Expert’s authority is costly—Assistant ought to suspend his
deliberative capacities in order to enjoy her services. Assistant cannot respond to the
reasons that speak against lifting Victim to the boat in the way that Expert
recommends precisely because he submitted to Expert’s costly authority. I suggest
that mandatory submission to a costly authority involves transferred responsibility.
Thus, even if valid, Parry’s arguments with respect to Killing cannot be applied to
Special Killing: in the former, Assistant might be responsible for the death of
Victim since he could have had deliberated on the merits of the case, although he
(excusably) failed to do so. In the latter, Assistant had to outsource his deliberative
capacities to Expert, who willingly took the responsibility to deliberate on the merits
of the case on Assistant’s behalf.

4.2.1 Liability and transferred responsibility

This analysis of Special Killing yields the intuitively correct judgement regarding
Assistant’s liability to defensive harm. Consider McMahan’s responsibility account.
As I understand it, McMahan might well concede that at t0 there is no fact of the
matter as to whether Expert will make the tragic mistake that she makes at tF.
McMahan might therefore concede that in Special Killing, Assistant’s collaboration
with Expert and his submission to her costly authority is obligatory in the fact-
relative sense. Yet, in McMahan’s view, Assistant is nevertheless liable to defensive
killing in virtue of his responsibility for the unjust lethal threat he poses to Victim.
This seems a natural extension of McMahan’s conviction about minimally
responsible drivers: even if one’s driving is permissible or justified in the fact-
relative sense (since the future threat that the driver is about to cause does not yet
exist) the driver will nonetheless be minimally responsible for the unpredictable yet
unjustified threat that she later causes (McMahan 2009: 167).
The problem for McMahan’s responsibility account is that in Special Killing,
Assistant does not seem liable to defensive killing. My modified conception of
minimal responsibility implies that even if minimal responsibility is sufficient for
liability (as the responsibility account of liability holds), Assistant is not liable to be

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killed to avert the threat he poses while following Expert’s orders. Simply, he is not
even minimally responsible for this threat.
My account of minimal responsibility improves on most other accounts of
liability. Victor Tadros would probably argue that in Special Killing, the non-
negligent killer is not liable to defensive harm despite his minimal responsibility for
the death of Victim. Assistant is assuming risk for the sake of the person he is trying
to rescue; he aims to fulfil a moral duty; he acts for the sake of Victim—rather than
for his own sake (Tadros 2011: 234–236). Tadros suggests that in virtue of these
facts, Assistant might evade liability to defensive killing.
Still, Tadros’s ‘‘pluralistic’’ view fails to capture the intuitive response to other
special authority cases:
Special Killing*: Like in Special Killing, Assistant and Expert ought to rescue
their shared friend, Victim. Like in Special Killing, Assistant and Expert must
agree that Assistant will suspend his deliberative capacities during the rescue
operation in order to exercise Expert’s authority. However, in Special
Killing*, Assistant acts for the wrong type of reasons – he wants to impress his
girlfriend. Expert negligently instructs Assistant to rescue Victim in a way that
causes him to run over another innocent person, Bystander, killing him.
Here, Assistant does not aim to fulfil a moral duty, but rather to impress his
girlfriend. He does not act for Bystander’s sake, and has assumed no risk for
Bystander’s sake. If his responsibility is not defeated by any of the features that
Tadros identifies, it seems that if Assistant is responsible for the threat to Bystander,
then he must be liable to defensive harm. Presumably, there is no other fact that
undermines Assistant’s responsibility-based liability. And yet Assistant does not
seem liable to defensive killing even in Special Killing*. My view can explain this
result. If minimal responsibility is transferable, as I have argued, Assistant is not
even minimally responsible for the threat to Bystander. Therefore, he is not liable to
defensive harm in virtue of his responsibility for the threat he poses.

5 The costly authority of military leaders over their soldiers

Suppose the argument of the previous section is sound. Then, in a small set of
cases—viz., in special authority cases—responsibility for the killings that soldiers
commit falls only on the shoulders of the leaders whose orders they follow. To see
why, observe that the natural duty-based argument for the authority of democratic
liberal states can be easily extended to circumstances of war. One of the prime
duties of a state is to defend its citizens from unjust external threats. According to
the Authority View assumed here, this duty follows from the natural duty to which
each of us is subject to eliminate serious unjustified threats to others and to prevent
such threats from coming into existence, provided that we can do so at a reasonable
cost.
It follows that citizens are under a natural duty to collaborate with each other in
order to provide security to themselves and others, if the collaboration will enable
them to do so at a reasonable cost (and, of course, if the collaboration itself is not

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too costly). Therefore, they ought to support a state (in Rawls’s terms ‘‘just
arrangements’’ (Rawls 1971: 99)) that will coordinate their contributions to the
achievement of this purpose. In its turn, the state should provide security to its
citizens in an efficient way as well as cultivate the epistemic capacity of public
officials and military leaders to do so. In sum: in fulfilling their duty to protect
themselves and others from unjust threats, citizens in a legitimate state are typically
under a duty to submit to officials’ authority; the state has a claim-right to inflict on
its citizens reasonable costs in fulfilling its duty to protect them from potential
aggressors.
These facts underlie the regular authority (Killing-like) relationship between
military leaders that states recruit and their subordinates. As noted, I assume (for the
sake of the argument) that these relations do not affect the attribution of
responsibility for the unjust killings that low ranking soldiers might commit. Even if
a pilot follows a mistaken instruction issued by her superior, and even if the
Authority View renders the superior’s authority legitimate, the pilot is responsible
for the unintended outcomes of her actions. Yet, as I shall now show, sometimes
soldiers face special authority cases: the pilot’s submission to her superiors’
authority involves high moral costs that she ought to bear as part of an agreed,
justified division of labor.
Consider a case in which a pilot’s superiors inform her that in order to avert an
unjustified threat, she has to undertake an aerial surveillance mission. They further
claim that they ought to hide from her the facts that justify the mission. This is so
that if she gets intercepted and imprisoned, the enemy won’t be able to obtain any of
the relevant information by torturing her; moreover, the relevant facts are incredibly
complicated and highly confidential. The pilot’s superiors are right: for cogent
security reasons and for her own sake, they allow her to undertake the surveillance
mission only if she and they agree to take non-rational means to abolish her access
to some of the facts that justify the mission.
Imagine, then, that due to an agreed division of labor, our pilot has no way to
verify or refute her superiors’ claim that the mission is justified despite the dangers
that the aerial surveillance involves, the threat it imposes on others, and the
violation of privacy that it causes. The pilot’s voluntary submission to her superiors’
authority is all-things-considered justified (in the fact-relative sense) despite the
costs of their authority. Imagine, finally, that the pilot’s superiors turn out to be
negligent; they have ordered an unjustified surveillance mission. My analysis of
Special Killing implies that the responsibility for the unjust threat that the pilot
poses to innocents is transferred to her superiors, who were in charge of the
deliberative labor. Indeed, they freed her from the fact-relative duty to ensure that
following their instructions is justified.16

16
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.

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 Y. Benbaji

You might think that the analogy I am offering fails.17 In submitting to Expert’s
authority, Assistant reduces the risk to which Victim was exposed even if, ex post, it
turns out that in trying to rescue Victim, Assistant puts him at greater risk. In
contrast, the pilot knowingly allows her superiors to use her in order to put
innocents at greater risk. After all, by suspending her deliberative capacity vis-à-vis
the mission that she undertakes, she is letting her superiors use her in exercising
force. Hence, unlike Assistant, our pilot is minimally responsible for the unjust
threats that she is imposing during the surveillance mission, even if she is under a
duty to accept the epistemic limitations that are built into her institutional role.
This objection misses the aim of the basic duties that legitimate military forces
undertake. Armies are supposed to deter potential aggressors from committing
crimes against peace and to enforce defensive rights. The just aim of a legitimate
army—and the master goal of all the positions it creates and seeks to fill—should be
to reduce the risk that potential aggressors can impose on innocents. (Note that I do
not argue that armies are typically legitimate; it is an open empirical question
whether a given army in fact provides security and nothing else.) Hence, if she
serves in a legitimate army, our pilot might resemble Assistant: by submitting to the
costly authority of her superiors, she reduces the risks to which innocents are
exposed by helping the army to deter potential aggressors from waging unjust wars.

6 Conclusion

In special authority circumstances, the authority to which one ought to submit and to
whose services one is entitled might generate a fact-relative permission to cause
unjust harm. In the case discussed in this paper, the otherwise-impermissible action
that Assistant performs in obeying Expert’s orders is permissible in virtue of the fact
that Assistant and Expert reach an agreement that requires Assistant to submit to
Expert’s costly authority and requires Expert to release Assistant from the duty to
assess Expert’s instructions. In entering this agreement, the responsibility for the
unintended unjust outcomes of Assistant’s obedience is transferred to Expert, whose
orders Assistant follows. Hence, minimal agential responsibility is transferrable.
The final section applied this result to the circumstances of war. Possibly, in special
authority cases, soldiers who ought to suspend their capacity to criticize their
superiors’ directives are not even minimally responsible for some of the unjust
harms that they inflict. How often is soldiers’ responsibility transferred to their
superiors? I leave this empirical question open.

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).

17
Victor Tadros raised this objection.

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