Tuesday, November 30, 2004

Walzer and Catholic Just War Theology, Part II (Theory)

In my first comment on Walzer and Catholic just war theology (November 27, 2004), I suggested that one critical difference between Walzer and Catholic theology is that Walzer locates his theory of just war in modernity generally and the primacy of consent specifically. The medieval roots of Catholic just war theology would have found that a strange way to proceed, and themselves proceed on a natural law basis in which consent is far more circumscribed that Walzer's comments about wars that are not unjust would allow.

(I should be very clear, however, that Walzer does not endorse as a moral or aesthetic ideal John Ruskin's romanticized 'beautiful if sometimes fatal' games between aristocratic young men, but merely notes that they are not, on modernity's view at least, unjust. No one would think it criminal to organize a tournament in which jousting and other such dueling games were pursued, or a "war" pursued on those lines but simply on a larger scale, Walzer says. (p. 25) Curiously, however, that is probably not how American law would view it. Dueling is illegal, and if one played such games in such a way that one actually took aim at another participant, even under conditions of consent to the game, charges of assault or murder might well ensue - our notion of contact sports and the risks of contact sports does not extend so far. For that matter, my WCL colleague Susan Schmeiser has just written an article pointing out that the law does not really recognize the kind of violent actions that sado-masochistic relationships consensually involve - they, too, remain open to the possibility of charges of assault despite the fact of consent. Read it here at SSRN.)

Let me suggest a second important difference between Walzer's account of the just war and Catholic theology. I am not sure I can put it very well, so I may try it several times in a couple of different posts. Walzer does not offer - deliberately does not offer - a "full" theory of the just war, in the Catholic sense of all the conditions of a just war. It seems to me that his intent is narrower than that - it is, instead, that he offers a moral theory of the response to aggression or, in other words, he offers a moral justification for resistance. I realize that one can find in Just and Unjust Wars an account of each of the classic criteria of the just war - just authority, just cause, just intent, likelihood of success, and last resort. But it does not seem to me that Walzer is concerned with them in a categorical sense; instead, his account seems concerned with working out the response to aggression, which is resistance. The opening epigraph, for example, is taken from the Yad Vashem in Jerusalem, and it is a hymn to those who resisted the Nazis - the partisans, the Allied armies, and so on. Walzer's account seems to me driven by a concern to work out the moral justification for resistance to tyranny and aggression - and although the various elements of the just war criteria might, more or less, be thought to emerge from such a justification, Walzer is not very concerned with deriving them as such, as categories.

The question is whether this difference in emphasis actually means anything, or simply represents two slightly different, rhetorically different roads to the same end. Well, it does seem to me that the Christian theologian has a different aim fundamentally from Walzer. If Walzer's aim is to justify resistance - perhaps even to make it, under certain circumstances, an obligation - then the Christian theologian has a different aim, which is to justify the breaking of what are otherwise Christian commandments in the sight of God. It is true, the theory can be understood even as Christian doctrine - as Jean Bethke Elshtain does, for example, in her Just War Against Terror - to regard the undertaking of a just war as a form of Christian love, and hence to justify resistance. But I do not think that this is its primary function as Christian theology; it is, rather, to provide a basis on which soldiers and kings, before the bar of God, might justify themselves. It is, that is, about sin, rather than coercion and consent, aggression and resistance - which means, I suppose, that this difference in emphasis is perhaps just another aspect of the way in which Walzer has located his theory within the secular Enlightenment and taken it out of the hands of theology. Yet even if the difference is fundamentally one of rhetoric and emphasis, there is something different about a theory that is about sin and what avoids the charge of sin, and a theory that is about consent and resistance.

I am not sure I have captured what I really want to say about this; perhaps I will try again in another post.

Beyond Paradise and Power, ed. by Tod Lindberg

A year or so ago, Robert Kagan published a slim, elegant essay called Of Paradise and Power, an analysis of relations between Europe and the United States. It was based on a June 2002 essay in the Hoover Institution journal Policy Review, titled "Power and Weakness" (read it here). The article and book became best-sellers on both sides of the Atlantic, widely translated and the topic of many critiques, comments, and responses. The editor of Policy Review, Tod Lindberg, who originally commissed Kagan's essay, has just published an edited volume of essays commenting on Kagan's work, called Beyond Paradise and Power: Europe, America and the Future of a Troubled Partnership (Routledge 2004). The lofty cross-Atlantic ontributors include (in no particular order) Walter Russell Mead, Timothy Garton Ash, Ivo Daalder, Kalypso Nicolaidis, Anne Applebaum, Peter Berkowitz, Gilles Andreani, Steven Erlanger, Wolfgang Ischinger, Simon Serfaty, and Francis Fukuyama.

The collection of essays deserves wide reading - they are wonderfully sophisticated and remarkably blunt, without ever losing sight of the value of the Atlantic bond and the shared values that underlie it.

The issue that has since come to the fore since these essays were written is the question of an Islamacizing Europe, and what that means for both Europe and the United States. I will comment later on this. Meanwhile, everyone should consult this book as the latest advance in the discussion over the Atlantic relationship.

Monday, November 29, 2004

Nick Eberstadt on North Korea

Thanks to Nicholas Eberstadt of the American Enterprise Institute for coming to speak to my ethics and war seminar at National Cathedral School for Girls on the ongoing crisis with North Korea and its nuclear program. He gave a lucid explanation for where things stand today and how we got there, and then offered gloomy thoughts on the fact that there are no good options. He emphasized two important things, however. First, he noted that because the United States has very little leverage with North Korea on its own, other countries in the region - China in particular - must be brought into the effort to pressure North Korea. Second, he said, given the North Korean regime's unrelenting pursuit of nuclear weapons, the only real way to deal with the situation is for the regime to come to an end. As he acknowledged, of course, that is easier said than done.

Read Nick Eberstadt's advice to the second term Bush administration on dealing with North Korea from the November 29, 2004 Weekly Standard here.

Saturday, November 27, 2004

Breyer & Scalia to discuss foreign precedents at American University (Adv.)

US Supreme Court Justices Scalia and Breyer will be at Washington College of Law, American University, in Washington DC, where I teach law, to discuss the question of whether and to what extent foreign cases, such as constitutional decisions of European or other courts, should have a place in US constitutional law. The date is Thursday, January 13, 2005, at 4:00 pm, and as we get closer to the date, more information will be available at the WCl website. The event is jointly sponsored by WCL-American University and the US Association for Constitutional Law, which is a scholarly association for international and comparative constitutional law studies (it is the US affiliate of the International Association), of which I am treasurer and a board member. The discussion between the Justices will be moderated by Professor Norman Dorsen of NYU Law School, who is the founding president of the US Association.

In the last several years, the topic has become hotly debated by international and comparative law scholars. Justice Breyer has cited various foreign decisions in his opinions in recent years, and Justice Scalia has been critical of the trend. The issue is given an airing by Anne-Marie Slaughter in her new book, A New World Order (Princeton UP 2004), at chapter 3; it is a careful and fair-minded summary of the debate, although Slaughter herself is strongly supportive of Justice Breyer's position. I myself support Justice Scalia's view, and explain why in a review essay of Slaughter's book in a forthcoming (February 2005) Harvard Law Review issue.

We are still in discussion with the Justices as to what kind of press coverage they will allow; we would like CSPAN and a live internet feed, but it is unclear what will be permitted. My own preference is a live internet feed and various live bloggers around the scholarly world, but we shall see. I will keep this updated.

Walzer and Catholic Just War Theology (Theory)

In discussions with my NCS girls, I have been considering the differences between Michael Walzer's formulation of just war theory and the medieval Catholic tradition. (I will be posting several comments on this issue.) Just and Unjust Wars, note, at no point in the text marches through the classic Catechism criteria of the just war - just authority, just cause, just intent, just means, likelihood of success, and last resort (this is something that sometimes drives teachers of courses on just war theory like me crazy, relying on Just and Unjust Wars as a comprehensive textbook rather than a sustained essay). Why not? Because it is significantly different from classical Catholic just war theology - in ways that might perhaps surprise many who believe that Walzer essentially revived it.

One important clue is found early on in Just and Unjust Wars. Walzer identifies the specific moral problem war as being, he says, a "form of tyranny." (p.29) War is hell, he says, whenever men "are forced to fight, whenever the limit of consent is breached." (p. 28) The essential crime of war, therefore, is that war, almost all of the time, forces people to fight (and noncombatants to be coerced) in ways that breach their consent to take part in this social activity. We can add, too (I believe consistent with Walzer), that there is a moral crime - a violation of justice - by the party that is the aggressor (however that is specifically defined), but there is a closely related moral tragedy insofar as the party resisting aggression must likewise engage in acts of coercion by which to defend itself and its moral rights. But the underlying point is that the injustice arises from the lack of consent, from coercion, from tyranny. Indeed, Walzer emphasizes this point by offering examples of wars that "are not hell ... the first and most obvious example is the competitive struggle of aristocratic young men, a tournament on a larger scale and with no presiding officer in the stands." (p.25) These wars, he says, are not unjust even if they appear, as they might to many of us, to be young men throwing their lives away - what John Ruskin described as "beautiful - though it may be fatal - play." (p. 25)

By describing the essential moral problem of war as being lack of consent, Walzer has firmly aligned his theory of just war with modernity's emphasis of liberty over the earlier medieval values of hierarchy and status. The great importance of Walzer's formulation of the moral foundation for just war theory is that it makes just war theory a branch, in part, of rights and liberties, a branch of Enlightenment morality. This has the great virtue of both hooking it into modernity as well as making it part of modern secular morality. After all, it must be recalled that before Walzer, the just war tradition was really regarded as a mere historical relic of medieval Catholic theology - ignored in theory and practice of ethics, relegated to the backwaters of Catholic thought. (See, e.g., Christopher Lynch, The Triumph of Just-War Theory, Weekly Standard, November 3, 2003.) In the United States, at least (the situation is quite different in European intellectual thought), thanks to Walzer, no one can debate the ethics of war without at least acknowledging the terms of just war theory - and that is so because of his embedding it firmly as a part of the secular ethics of modernity.

Nevertheless, this is not, it seems to me, at all how traditional Catholic theology would conceive of the essential problem of war. Catholic theology would acknowledge the coercive and tyrannical nature of war, yes, but it would not do so by championing consent as the test of morality or even justice. The granting of consent, even when it is real, is not enough to absolve war of its immorality or even injustice, on the Catholic view - Ruskin and the Victorian Romantics were wrong to believe that the killing of human beings, even with consent, can ever be a merely beautiful game. The reason, of course, for Catholicism, is that morality, and even justice, do not stop with relations between human beings, but incorporate relations with God, and therefore even things to which one consents with one's fellows might still be a sin against God, the sin of wagering one's own or a fellow's life without justification.

But of course, this version of just war theory is genuinely theological, a theory of sin and God, and not secular or even very modern. (One could, to be sure, elaborate a secular theory with the same concern - along the lines of John Stuart Mill's arguments against selling oneself into slavery - a secular argument framed along the limits of consent or perhaps the limits of rationality; at some point, however, these supposedly liberal arguments start to look so transcendental in the deployment of such concepts as "rationality" that they begin to look distinctly theological, cf. most of Dworkin.) The point, however, is that Walzer's aim is to embed the tradition of the just war within a secular, Enlightenment morality, and that morality is founded around liberty and equality; libertas locates the theory around consent and coercion, while egalite locates the theory around the essential moral equality of soldiers on each side. If the most traditional form of Catholic just war theory makes the crime of war a sin, then Walzer makes it a matter of a secular morality to which all, at least in theory, can subscribe.