Walzer and moral realism

These are just quick notes following my just war theory class today and may not make much sense to anyone not actually there, but I wanted to keep track of these comments.

1. Walzer's theory is one of working out human rights in war - that is, as he said about Just and Unjust Wars at the beginning of his later book, Spheres of Justice, in Just and Unjust Wars, a theory of rights does real work, it generates the limits that the theory places upon war. That is true of both jus ad bellum and jus in bello; it generates limits both as to reasons to fight wars - resist aggression - and upon its conduct - fundamentally, to limit the "tyranny" of war (or aggression) by limiting those whom it coerces to combatants as much as possible.

2. Walzer's theory of human rights in war treats it as a lex specialis for the special activity of war. Whether this is defensible on a rights theory of the ethics of war is an open question. The alternative is to treat the moral rules as humanitarian concessions made by military necessity, not matters of right. Walzer offers a rights theory; whether a rights theory can be consistent with military necessity as a formal matter of philosophical consistency, as distinguished from a sort of rough and practical accommodation between war and rights that is not consistent but tries to strike a practical balance between incommensurable paradigms remains an open issue. If you offer a rights theory - and the Western, Nato militaries buy into it - then you invite violation in the form of asymmetric warfare on the one hand, and pressure from the purists of the human rights movement to forever shrink the claims of military necessity because of the moral hegemony of rights, on the other. The rough and ready balance does not hold, and you either wind up with an (unfulfillable) utopianism of rights or else a shrugging off of rights and a commitment to win.

3. This invokes the increasingly important gap between "universalist" theories of jus in bello and "bargain" theories of the same (see Eric Posner over at Opinio Juris on this topic). The law of jus in bello has elements of both, as John Bellinger pointed out in his Opinio Juris comments. But there is a question as to whether, under pressure of the violations of the rules occasioned by asymmetric warfare, the universalist "rights" model can survive in its current form. I don't suppose very many people want to go back to a model of reprisals against innocents as a means of enforcing the "bargain" of humanitarianism in war, especially when dealing with enemies for whom it would likely not act as much as an enforcement mechanism. Certainly I would reject that on rights grounds. Yet I am also highly skeptical that a one-sided universalism, in which only one side is under any meaningful pressure to follow the supposedly mutual and reciprocal and universal rules - and, moreover, is expected to compensate in its own behavior for the failure of the other side, thus inviting ever greater failures as the non-compliant side sees a way to weaken its complying adversary through its very compliance - can survive in the long term in its current form.

4. Just war theory is not necessarily a theory of rights, in the sense that Walzer offers it. In Walzer's hands, just war theory is a function of accommodating modernity's virtues of liberty, equality, and fraternity into the special hell of war through the device of rights. Put another way, Walzer's "war convention" is essentially a contractualist device for showing how we agree to the terms of rights in the special hell of war. Walzer's "war convention" asks us what we would agree to if we were consenting to its conditions - and then says, under the conditions of aggression, coercion, and tyranny that constitutes the crime of war, let us take those as the conditions that ought to establish rights in war. Yet just war theory need not be contractualist. One of the enormous differences between Walzer's theory of just war and traditional Christian just war theory is that although Christian just war theory is fundamentally about justice, through the device of natural law, it is not fundamentally about rights, at least not in the social contract sense. Traditional just war theory, as set out in the traditional criteria, is about justice, and about justifying oneself in terms of justice before God, but it is not about rights as such. It is not a theory from modernity that would seek to frame itself in the language of rights as such. It is, rather, a theory of natural law, independent of contractarianism.

5. The secularism of Walzer's theory, in other words, is not merely about taking God out of it and substituting some other transcendental term - human rights - and then coming up with an account of those rights from contractarianism or any other source. It is much, much deeper than that - an account that seeks to affirm the fundamental values of modernity and the Enlightenment. Natural law theory can be used to that purpose, but is broader and older than that. The appeal of Walzer's theory is not merely that it appeals on the ground of reason to those who will not accept God as the justification; it is, rather and much more deeply, that it is a theory that partakes directly and affirmatively of modernity's values.

6. Just war theories, whether natural law theories such as Christian just war traditions, or Walzer's rights-based theory, are not the only basis for an ethics that limits war, both jus ad bellum and jus in bello. Realism, the moral realism that is offered in extreme form out of a Hobbesian reading of Thucydides - "an argument upon your safety" - can also generate an ethics that limits war. If one reads the international world as something less dangerous than a full-blown Hobbesian brutality, but as something in which a less extreme condition applies, then one can propose a limit on the readiness to go to war. And if one can imagine a bargain theory of war's conduct, a humanitarianism based upon the recognition that not all brutality is required for victory, then limits can be understood as a matter of humanitarianism. It is not a rights theory with respect either to limits to the resort to force or with respect to the conduct of war, and its limits depend upon assessments of safety and the willingness, through convention, bargain, custom, or any other mechanism, to follow certain rules in conduct. But it does generate at least the possibility of limits. This moral realism, note, is historically that which has generated limits on and in war - not just war theory, which has historically actually been a sideline theory until the remarkable success of Walzer's book which, seen over the long run, is part of the general triumph of the human rights paradigm. The historical paradigm for limits in war has actually been, over the long run, moral realism.

7. Moral realism has been the characteristic approach of the United States to ethics on and in war, starting from the Civil War through Vietnam. The basic formula has been, if you fight, fight to win, but confine your damage and collateral damage (in a very broad sense) to that necessary to win. This is what gets to Sherman's campaign in the Civil War - the acceptance by the Union leadership that only a war that widened the targets to treat civilian property, if not precisely civilians themselves, as legitimate objects of destruction, would be able to win. This is not just war theory, but moral realism; Lincoln was a moral realist in his willingness to go to war and his willingness to embrace a harder and harder ethic of fighting in order to win. This moral realism can encompass certain criteria of the just war as what Walzer calls "rules of thumbs," but it will not accept them as matters of rights.

8. Walzer's theory begins as a theory of rights. As many people have noted, however, by the time he adds the special proviso of "supreme emergency," it rather starts to look not like a theory of rights, but instead moral realism - a return, in extremis (and, given his startling choice of examples, the Allied bombing of Germany, not so extremis) to "an argument upon your safety."

9. Walzer's theory is also one which treats political communities not as the pooled rights of their individual members, rather than corporate entities which have rights as communities as such. My sense is that this is likely not the correct approach; we think of political communities as having rights as such, mostly because we think of them as surviving as bearers of moral values over time, beyond the time of individual members. This is a risky line of rights-talk, because it rapidly undermines individual rights, but some notion of the political community as more than just the sum of today's members individual rights seems to me right, and necessary to the strong arguments that many would make for why a political community that faces aggression has a right, and more, to respond.

10. Next week we take up Walzer's arguments on the importance of winning. I would put the point something like this: winning is important not merely as a realist 'argument upon your safety', but, in a war that is justified in just war terms, as a moral proposition. We contrast limits in war against "military necessity," and by the use of the term "military necessity" have a tendency to think of that concept in purely realist terms, necessity terms, doing that which is necessary to survive and win, for the safety and survival of the political community. Obviously a large part of "military necessity" is exactly that. But another part of it, the deeper meaning in a system of just war theory, is that military necessity is the moral proposition that if you are fighting for a just cause, winning is not 'merely' survival, but an affirmative obligation, an affirmative moral obligation. That more "justice"-based account of winning might well - perhaps, anyway - affect how you see the way you fight. Of course, it will do the same even if you have merely convinced yourself, wrongly, that your cause is right. So the question is what role to grant military necessity in a moral framework in which winning is morally, and not just practically, important - but in which every side, every time, will convince itself that it has this moral justification to win on its side.