Thursday, November 30, 2006

Final paper topics for my NCS students in Just and Unjust Wars class

I volunteer to teach a class at my daughter's school, the National Cathedral School for Girls, in Washington DC (wikipedia article), on ethics and war, Just and Unjust Wars. It is essentially a stripped down version of a class I teach at my law school, and have taught over the years at Fordham, Columbia, and Harvard law schools. The students I get from NCS are very good writers and thinkers - so are the boys who come over from St Alban's. They are usually seniors, and I get several of the best students in the grade. Actually, some of the youngest students have been among the very best - two girls, then sophmores, for example, who gave me amazingly subtle readings of Lincoln's Second Inaugural, both of whom are now at Yale, and I have one extremely good sophmore this year. I feel like I can give them pretty difficult material to work with in ethics. So here are the final paper topics for the class; pick one or design your own question:

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1. We have spent a lot of time in this class discussing the differences between moral realism and the just war tradition. Pick one or the other and defend it. I mean by that offer a definition of each, assert that one or the other is a better moral theory, and defend that assertion. Assume you propose to defend just war theory against realism. In order to mount a defense, you want to do two things. First, what do you believe is affirmatively correct about just war theory, on its own terms? On what grounds do your support those claims? Second, on what grounds could just war theory be attacked by a supporter of realism – and how do you respond to and answer those attacks framed specifically from a realist perspective? Or flip this around and defend realism against just war theory.

2. Who has right authority to fight a war? Are there any limits on who morally is entitled to take up arms to fight against a political authority in a political cause? If there are limits, what are they? What reasons can you give in favor of any limits you might propose? What objections can be made to your proposed limits? How do you respond to those objections?

3. The great military historian John Keegan wrote this past week in the British magazine Prospect on the question of whether Iraq has now become a civil war. He believes that it is close but not yet there. He might or might not be right about that. More importantly, he offers historical criteria for what constitutes a true civil war as distinguished from more minor internal armed conflicts. Offer a reconstruction and critique of his argument, applied to Iraq but also taking into account other historical wars, such as the American Civil War. The question that I want you to address is, in the first place, whether you accept the criteria he offers for what constitutes a civil war historically, leaving aside whether he is right about Iraq. On the basis of what you know about other wars, are his criteria correct or not. You may express your view as to Iraq, but the question for the paper is whether the criteria against which he purports to examine Iraq are the correct criteria. Give arguments in favor of his view, against his view, and reach a conclusion. The article is here:
http://www.prospect-magazine.co.uk/article_details.php?id=7951

4. In saying “war is hell,” Sherman asserts (one of several ways of glossing the phrase) that because his side did not start the war, and because it was aggressed against by a South seeking unlawfully to secede, any action he takes to correct that fundamental injustice is moral, justified, and indeed is not really “his doing” because he is simply taking corrective action, responding, as it were, to an action taken by the other side. Partly he is saying that the non-aggressor side is entitled to any action to correct the injustice of aggression and partly he is saying that the unjust action by the aggressor creates a sort of “opposite but equal reaction” for which the non-aggressor is not morally responsible. This moral view shares with realism a rejection, in principle at least, of any limits in war, but I have characterized the position not as “realism,” but instead as a kind of “super-justice” position, one which relies on a view that what the aggressed-against is entitled to do knows no limits in order to respond to the unjust aggression, because the aggression was unjust. Leave aside the question of whether the South was actually the “aggressor” or not in the Civil War; assume for purposes of the discussion that it was. Is Sherman’s moral argument for potentially unlimited war in the name of righting a wrong morally correct? Assert a view, offer arguments for and against, responding to your arguments, and responding to the critiques, and reach a conclusion. (One source to draw upon by way of critique of Sherman's position is just war theory and the criteria of balance of good over evil and proportionality. But are these criteria of justice, and if not, how do they weigh - how can they weigh? - against Sherman's claims of justice?)

5. Walzer says at page 51: “The wrong the aggressor commits is to force men and women to risk their lives for the sake of their rights. It is to confront them with the choice: your rights or (some of) your lives! Groups of citizens respond in different ways to that choice, sometimes surrendering, sometimes fighting, depending on the moral and material conditions of their state and army. But they are always justified in fighting; and in most cases, given that harsh choice, fighting is the morally preferred response.” (emphasis added)

Focus on the final judgments that Walzer makes – that they are “always justified in fighting” and that in most cases, fighting “is the morally preferred response.” (a) Is this consistent with the Christian criterion of the just war, that one weigh the balance of good over evil in the overall circumstances, including those of your enemy, in deciding whether or not to fight? See the materials in James Turner Johnson and the Stanford Encyclopedia to help sort out the meaning of that Christian criterion. (b) Whether this is consistent or not with Christian just war theory, is Walzer right or wrong in your view in the two statements that I asked you to focus on? Why or why not? What are objections to Walzer’s view and responses he might make to the objections?

6. Consider the definition of a legal combatant eligible for POW status and the combatant’s privilege under Geneva Convention III, Article 4. I have indicated in class that POW status gives a detainee significant benefits – interrogation must be limited to merely name, rank and serial number; treatment in detention must be generally as good as that of soldiers of the “Detaining Power,” trial for war crimes or other matters must be (with some legal limitations; I am sliding over some things legally) the same as court martial for the Detaining Power’s own soldiers, etc. On the other hand, as I have also indicated in class, if one flunks the test of being a legal combatant – because, especially, you belong to a group whose methods of war are the systematic violation of the laws and customs of war, such as Al Qaeda or, back in the Yugoslavia wars, massive ethnic cleansing and massacre such as the Serbs undertook at in Bosnia and especially Srebrenica – then one is an illegal combatant (or “unprivileged belligerent”). The rights of an illegal combatant are far more limited than those of POWs and are those found (more or less; I am fudging some important legal complications here) in Common Article Three of the Geneva Conventions (p 151-2 of our materials). It affords important protections – no torture, summary execution, etc. – but falls very far short of the standard of full POW protection.

Is this distinction morally correct? Assume for this purpose that we are in a war – ignore debates over whether the war on terror legally constitutes a war. Should every detainee be afforded full POW protections, irrespective of whether he or she meets the legal requirements of Article 4? What are the arguments for and against giving every combatant detainee in war full POW rights? Is it morally just or even morally required to give all detainees the same rights, or is the distinction as it stands morally justified? Beyond the moral arguments over whether justice requires giving all detainees the same rights in detention – the Serb militias whose systematic modus operandi was rape, pillage, and massacre as much as the honorable soldier – what incentives, good or bad, are created by one policy or the other? If your views about what incentives are created differ from what you believe the just policy to be, which takes precedence?

(Bear in mind that even a POW can be tried for alleged war crimes – indeed, every state has an obligation to do so, whether its own soldiers, those of the enemy, or civilians of either side. But the procedural protections for a full POW in a trial are very different from those under Common Article Three, which affords only a “regularly constituted” court. So the issue of war crimes is not that either legal combatants or illegal combatants are excused from trial for war crimes; the question is whether you have all the trial protections of a POW.)

7. What is the doctrine of the double effect? Describe it and give an example of what it claims. How does it relate the concept of “collateral damage”? (See page 184, my NYT magazine article on the laws of war.) What is the legal expression of it in the law of war? (See Protocol I, Article 48, 51 (4) and (5), 52.) But what are the consequences if you give up the distinction and say that it is morally invalid or false? Is it still possible to remain within the framework of just war theory if you deny the double effect doctrine? What position(s) might giving up the distinction between “intended” and “merely foreseen but not intended” lead you towards? Why, in other words, is the double effect doctrine – whether it is valid or not – understood to be so essential for the jus in bello limits upon fighting of just war theory? With that as the very profound background consequences of your answer - does the double effect principle seem to you a valid moral distinction or merely sophistical? Argue for and against.

8. Should blinding laser weapons be allowed as a means of warfare? Or should they be outlawed, in favor of weapons that “merely” kill people? Are there any other weapons that you think should be outlawed as a matter of law even for use against combatants alone – chemical weapons used tactically in combat only against combatants, small exploding bullets, poison, or anything else? Why or why not?

9. What is siege warfare, and why is it so horrible? Read the account of the acquittal of von Leeb at Nuremberg, in Walzer, pp 166-7. In particular, what is the special role of civilians in siege – as reflected in von Leeb’s cruel yet (then) lawful behavior? What is Walzer’s view of how siege should be handled with respect to civilians and noncombatants. Now read Article 54 of Protocol I (p 163). Describe the differences between the two. (In a roundabout way, Art. 54 seeks to outlaw siege warfare – how? Parse Article 54 and compare to Walzer.) Which is morally the better approach? What as a practical matter is likely to be the result of Article 54 – is it likely to achieve its legal aims? Assume that as a practical matter, Art. 54 is not likely to be effective, even though you believe it is the morally best approach. How do you reconcile the difference between the morally best approach and the practical consequences likely to result from it? (The core of this question is to parse both Walzer and Article 54, and then compare. It is an exercise in close textual reading.)

10. Read Lincoln’s Second Inaugural Address and my commentary on in it in the TLS. Focus on the phrases in the last paragraph of the Address beginning “with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in,” ie, finish and win the Civil War though it might mean more bloody battles. Many have taken those phrases and the phrases in the preceding paragraph “both read the same bible and pray to the same God, and each invokes his aid against the other” as an argument that Lincoln essentially accepted that right and wrong in the war was merely how one side saw things against the other side. It is to suggest that Lincoln here espouses a form of moral relativism – we see it this way, they see it that, who is to say who is right, except power and the force of arms? I argue against this in the last two paragraphs of my review. Make the argument that these sections of the Address espouse a moral relativism. Reconstruct my argument that they do not, but instead point to Lincoln seeking to do something morally quite different. What do I argue that he seeks to do, rather than relativism? Agree or disagree with me, offer reasons for your view, offer objections to your view, and then answer them.

11. Should the two sides in a war have to obey the same rules? Suppose one side is significantly weaker technologically and materially than the other side. Why shouldn’t it take the few advantages it has – such as the ability to hide among civilians and to use human shields, to target civilians in terrorist attacks in order to break the morale of the stronger enemy? This is not to suggest that there should not be rules – but that the rules should take into account how strong your side is. The weaker side should not have to fight according to the same rules as the stronger side – the rules simply favor the stronger side, and the weaker side is morally entitled to a more limited set of rules. Agree or disagree with this position, taking into account both moral arguments as well as a discussion of the practical incentives likely to result from such a “non-reciprocal” rule.

12. Ye have heard that it hath been said, An eye for an eye and a tooth for a tooth, but I say unto you, That ye resist not evil: but whosoever shall smite thee on they right cheek, turn to him the other also ... love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you. Luke 6:38-48.

Jean Bethke Elshtain, among other Christian theologians, and drawing upon Augustine among others, has said that under some circumstances, even war can be seen as an act of Christian love and charity. How do you reconcile Elshtain’s view with the above passage of Jesus preaching, in the Gospel of Luke? Can they be reconciled? Or is the attempt to do so simply hypocrisy? If you think they can be reconciled, what role might the just war tradition play in that reconciliation?

13. Evaluate the following passage from Blood and Belonging (1994) by the (cosmopolitan) Canadian scholar-activist turned politician Michael Ignatieff, reconstruct its several arguments and claims, and extend its meaning to the place of soldiers and armies in relation to cosmopolitanism and those who would claim that they are only incidentally citizens of a particular nation-state, but are instead "citizens of the world."

It is only too apparent that cosmopolitanism is the privilege of those who can take a secure nation-state for granted. Though we have passed into the post-imperial age, we have not moved a post-nationalist age, and I cannot see how we will ever do so. The cosmopolitan order of the great cities - London, Los Angeles, New York, Paris - depends critically on the rule-enforcing capacities of the nation-state ... In this sense, therefore, cosmopolitans like myself are not beyond the nation; and a cosmopolitan, post-nationalist spirit will always depend, in the end, on the capacity of nation-states to provide security and civility for their citizens. In that sense alone, I am a civic nationalist, someone who believes in the necessity of nations and in the duty of citizens to defend the capacity of nations to provide the security and the rights we all need in order to live cosmopolitan lives. At the very least, cosmopolitan disdain and astonishment at the ferocity with which people will fight to win a nation-state of their own is misplaced. They are, after all, fighting for a privilege cosmopolitans have long taken for granted.

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