Sanford Levinson on collateral damage

Sandy Levinson is one of the most subtle and profound thinkers I know, and the book he edited on torture is required reading in all of today's discussions of counter-terrorism. He has a short comment on the nature of collateral damage on the blog where he is a contributor, Balkinization, here. It is well worth reading.

I wanted to add one small comment to it. In my now many years teaching ethics and war, the laws of war, just war theory, and related topics, I have been struck by how un-intuitive the concept of the double effect is. Those of us who have done moral philosophy for a long time tend to assume that it is a natural way of thinking about the world, but the experience of teaching students - especially those from outside of Western, Judeo-Christian culture - convinces me that it is not. I mean this in the sense that, far from being an intuitive moral doctrine, it is rather a doctrine that one arrives at because the alternatives look so unattractive. In the case of war, the problem is that pacifism, for most of us, is unacceptable as an alternative. And yet so is naked realism, the realism that admits of no limits to behavior in war. Indeed, in an important sense, the principal secular varieties of pacifism are realism, realism carried to a limit in which war, because it can have no limits, becomes morally unthinkable.

When I say that the double effect is a doctrine 'arrived at', I mean that in the precise sense that it arrives just in time to provide a way out of pacifism, but also out of realism. It provides a way in which to fight. But it is not what most people intuitively first think. It is a solution to a deep moral problem about war (and other things), not the first order intuition. And it is one that slides out of the legal and moral discussion of war with remarkable speed. Even Walzer abandons it in his doctrine of "supreme emergency," permitting Britain to launch attacks directly against German civilians on the ground that Churchill had no other means of attacking the enemy - could not the same be all too easily be said of Hezbollah? On the one hand, double effect is the anchor of the dual regime that both endorses noncombatant immunity yet permits fighting; on the other hand, I do not find it deeply rooted, given the growth in forms of asymmetric warfare that themselves depend upon exploiting the other side's respect for noncombatant immunity.

Systems of law and morality that lack reciprocity do not tend to survive in war, set as they are against the reciprocal struggle that constitutes war and military necessity. The current view among international elites is that the lack of reciprocity can be overcome by international tribunals and post-hoc criminal proceedings, as though the world were a domestic legal order with an overarching court system to monitor breaches of a domestic law. Alternatively, the elimination of reciprocity will be compensated for by granting effective immunity to the weaker guerrilla side in a conflict, with the result that the laws of war mean one thing for one side and another thing for the other (the approach taken by Protocol I whe, for example, it provides a special dispensation for guerrillas not to carry their arms openly or wear insignia designating fighters until the moment of ambush). These measure will not work over the long haul - they are not working now, but are instead transforming the cultural practices of war as parties adapt themselves to unequal incentives and disincentives. The current disdain for reciprocity more likely will have the long term effect of undermining the universality of the law of war, not broadening it.