Just war theory notes

Thoughts on just war theory, in no special order:

Varieties of realism ... as I've noted various times on this blog, what is typically described in just war literature as the "realist" position actually breaks down into a number of different moral positions. I've sometimes described the range this way:

• Amoral realism. The realist part of this is the exercise of power - the reality of power - while the amoral part of it is that it is exercised without reference to a moral language. Instead it is a question of desire, glory, non-moral motivations. Could prudence be a motivation here? Perhaps, although prudence is often part of a genuinely moral language, about what is good for me and mine, for my people, my community. Glory, I think, is overlooked by we moderns, looking to purely material explanations for why nations and nation-states behave as they do. Whereas I don't think someone like Saddam is comprehensible except in terms of a quest for glory of a certain kind. Hobbes discusses this in the Leviathan, someplace, and I need to track it down.
• Moral realism. The realist part is, once again, the view that power can be exercised without any a priori restraints on the basis of rights - so that it is a consequentialist theory - but the ends to which power is exercised must themselves be framed in a moral language. This leaves a lot open, of course, as to the content of that moral language. The most important question is not whether we think that a lot might be brought in that we don't think is actually very moral - that is always possible - but instead the more difficult question of whether the consequentialism is one that looks to consequences for the world as a whole - all sides, the whole world - in a dispute, or merely to one's own side. Both are a form of moral language, but one privileges a political community, the people you are close to, family, nation, tribe, over anyone else in the calculation of consequences. The other version, the pure consequentialist version, frames the moral language in terms of the whole. I'll isolate the "partial" consequentialist view in a moment, but it is worth noting that the "stability" realist arguments about balance of power, stability, and so on found in places like Foreign Affairs are often presented, on the surface at least, as arguments from the interests of the world as a whole even if they call for action which, also on the surface, appears to be from the standpoint of the superpower. Pax Romana, Pax Americana are often argued in terms of stability benefits - a consequentialist argument - for the sake of everyone. Not everyone agrees, of course, that everyone benefits.
• Attachment ethics realism. Here is where things start to get very difficult. Whether one is talking about realism or a just war theory of rights a la Walzer, the theory that most people intuitively opt for, in my experience, is one which privileges one's own political community in some ways - defends its right to defend itself in some way. It may temper that with some version of universal consequences - such as the Christian just war requirement that overall greater evil not come about by, for example, a genuinely lost cause - but it privileges one's own community and its defense. The Melian dialogue features just such an argument from the Athenian generals - if we do not expand our empire, we will lost what we have - and, speaking no doubt generously, they were thinking about the defense of their families, wives, kin, and people even if it involved the defense of an unjust empire. (I will suggest that one difference, however, between Christian theory and Walzer and, for that matter, my own modest theory of just war is that Christian theory, in speaking to a just cause, really does universalize it as a matter of natural law and so does not privilege one's political community in the final analysis even if it grants to one's political community much leeway in determining if its cause is just.) The justification for privileging one's own is a much broader problem in ethics than simply war, although war is a stellar example of one part of the problem - and I have called it "attachment ethics" or the "ethics of affection" because it goes to the question of when is it okay or not okay to favor one's own, however one defines it. (I will argue at some point that the best way to draw the line involves a public -private divide, and that this is an important part both of the story of how Western civilization developed the concept of the rule of law and of the failure of governance in various places, but I will leave that aside for now.) The point is, for now, that most of us tend to accept some sort of attachment ethics when it comes to an ethics of war - not everyone does, and many of them live in Geneva, or more broadly in Europe, where the question of being attacked is not really at issue and hence permits you to live on a highly abstract, highly univeralized plane in which neutrality and genuine impartiality in conflict is the most admired virtue. (I attack the primacy of that concept in the last part of this article on humanitarian neutrality, here.) I do not think you can justify this attachment, whether in a realist mode or rights based just war theory mode without some ethics of attachment and affection - which will als0, however, require that you set out the moral limits to such attachment. That has to be a central problem of any theory of war ethics.
• Empirical moral realism. Sherman said "war is hell." He favored the most violent, unlimited means and methods of combat in order to shorten the duration of that hell. Interestingly, Sun Tzu says much the same thing in The Art of War. What makes this version of realism "real" is that it says that any exercise of power - any means and method of warfare - is acceptable, and that no a priori constraint can be placed upon the exercise of that power by concepts of rights and natural law. What makes it a "moral" language is its assertion that it does this for a moral purpose - shortening the duration and consequences of the hell of war. What makes it "empirical" is that its means and methods reflect empirical, factual judgments about what the true horrors of war are. In Sun Tzu's case, it was a view that the greatest disaster of war in his day - around the fifth century BCE - was the disaster to subsistence peasants of not being able to plant or gather the harvest and this to face starvation - this led Sun Tzu to the conclusion, in his day and circumstances, that a short, even if much more intense and brutal, conflict was morally preferable to a protracted one that starved society. Sherman made much the same judgment (although he offered as well an entirely different kind of argument. These judgments may be right, they may be wrong - they are factual in nature, although they are factual predicates in a moral argument with moral ends about the use of power.

These are the realist theories - theories of power that do not admit of a priori, rights based restrictions on the exercise of power, either in the sense of constraining the resort to force or in the means and methods of using force - jus ad bellum or jus in bello. Beyond realism, we have next theories of nonviolence:

• Duty based nonviolence - absolutist nonviolence. (I won't say more for the moment.)
• Pacifism with respect to war, although not necessarily about all forms of violence, such as domestic police protection.
• Realist pacifism. I want to distinguish out one important strand of pacifism - one that is not necessarily based on an a priori conception of duty and right, but which is instead based on a severe realism - you can reach, that is, pacifism if you conceive of the risks of warfare to be such that it cannot be constrained and hence will always flunk some consequentialist test of what is good for everyone. The Catholic bishops used some of this reasoning in reaching what George Weigel has called their "functional pacifism" in just war language in the bishops' 1908s pastoral letter on nuclear war - essentially, any conventional war can easily lead to nuclear conflagration, hence no war will meet the test of consequentialist good over evil, or at least the chance is too great to take. The position is a prudentialist one - which is my sole point for the moment - and depends upon a particular reading of realism.

We can also add two more theories in a category that we might call "execution of justice" theories:

• Sherman's "it's your fault" argument. In addition to Sherman's "war is hell" empirical moral realism, he also offers a quite different argument. It is that he cannot be constrained a priori by rights in his means and methods of warfare - not because of an argument from realism - but by an argument from rights and justice themselves. The war is your fault, Sherman says, and I am merely responding. Whatever I do to respond to your aggression is not really my doing, in a duty and rights and justice sense, it is your doing by having violated natural law and justice. This is, importantly, an argument for the moral inability to limit war not on the basis of realism, but on the basis of pure justice, untempered by anything else.
• There is a recent version of this theory offered with the attempt to introduce constraints, whose author I forgot at this very moment , in which just war is explicitly framed as the carrying out of God's justice. It has certain constraints built into the theory, but it is essentially a theory of just war which makes you the executor of God's will. I will discuss this later, too.

What I want to note about the two preceding theories is that Sherman's, at least, allows for unlimited war, total war, and yet they are not realist theories. They are rights based, justice based theories. What I want to suggest is that justice based theories - whether these or more traditional just war theories of constraint of war - must be modified by a certain appeal to what we might call a "provisional morality" - a morality that calls upon you artificially to suspend your sense of justice for certain purposes - e.g., they are all wicked and aggressing against us and no constraint on war is possible - and yet which permits you to fight in the view that your side is indeed right. In offering my own addition to just war theory, I want to focus on this "double" moral obligation - to fight, yet to fight with a certain reservation about one's own virtue. Quite possibly this is merely an attempt to square the circle, but I will suggest that this is at the heart of Lincoln's view of war in the Second Inaugural Address, as well as at the heart of the "provisional morality" championed by the two great French moralistes who emerged from the Second World War, Albert Camus and Rene Char. (I have written on Rene Char a bit in this blog earlier; the draft title of my manuscript on just war is taken from Char's wartime notebooks; it is "This Time of Damned Algebra.")

This leads us to the two great theories of the just war, one religious and one secular:

• Christian war theory, with its traditional 5, 6, or 7 criteria, aggression as contrary to God's justice, and the defense of the just community for the sake of tranquillitas ordinis being blessed by God, as an act of Christian love.
• Walzer's secular theory, based on the view of war as tyranny, contrary to liberty and freedom, and not merely contrary to justice. The question, beyond particular questions one might have about Walzer's conclusions about particular matters, is whether, in the defense of political community, even to the point of a "supreme emergency" that allows for the override of rights and justice based norms in how one fights, it turns into simply a theory of realist attachment ethics with stringent conditions attached. The question about Walzer's view, in other words, is essentially the question of attachment ethics and the defense of political community - in one understanding of it, does Walzer's theory privilege the liberty of a political community over everything else, justice and consequences?

I have various normative points about different matters in just war theory as presented both by traditional Christian theory and Walzer. But those are points within the broad framework - in particular, I stress, following the very important work of James Turner Johnson, that the fundmental question of just war theory today is actually not "just cause," but "just authority" - who has the right authority to fight? But do I actually have anything to add or criticize about the fundamental structure of just war theory? It is precisely this point about "provisional morality" - I hope to use this idea as a way to bridge the gap between the liberties of particular political communities and their defense and universal justice. We shall see.

But finally, the greatest conceptual threat (if I can put it in those terms) in the real world today with respect to just war theory, whether traditional Christian theory or Walzer, is not actually realism, but instead what we might call:

• Positive international law/the domestic analogy. The basic idea is that positive international law, through the UN Charter and other sources, has essentially replaced with positive law the older, moral strucutres of natural moral law and, by extension, the necessity to appeal to moral concepts of the just war. In the same way that you do not appeal to natural law to discuss the morality of a conventional, positive law device such as a stop sign, we no longer have a need to appeal to moral "law" - morality, in a word - in order to deal with aggression, war, conflict and so on. A positive law structure has replaced it. Indeed, it goes a step further than that - the positive law that has replaced it essentially eliminates, properly understood, the very concept of war, because this global rule of law means that the use of force is a police power, on analogy to the use of police force in a domestic society - and fundamental concepts of the just war, indeed of traditional legal concepts of the law of war, should over time disappear. I don't think the domestic analogy works - I don't think we have such a structure of law in the world, and don't think we should be working towards it, either, for reasons of the value of democratic sovereign political communities, but I will leave that discussion for later.

(My kid is bugging me to come fix dinner, so that, as they say, is that. In fact, she is banging on the top of my head with pencils. At age 12, no less!)