Tuesday, February 27, 2007

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.

Sunday, February 25, 2007

Categorizing theories of ethics of war

The usual way of setting out theories of ethics of war is realism, just war theories, and pacifism, corresponding to unlimited, limited, and prohibited with respect to undertaking war. I've gradually come to think that, while attractive in many ways, it is not really an exact correspondence. There are versions of realism that lead to the possibility of unlimited war, but you can also set out a form of moral realism that provides limits on war as well. Justice or rights based theories of war can lead to limits on war - but, as I suggested in the "superjustice" version of Sherman's "war is hell," a justice based or rights based approach can also lead to the possibility of unlimited war.

In addition, the classical division of realism, pacifism, and just war theories leaves out the quite important possibility represented by something we might call "positive law eschatology" - viewing positive international law as having replaced moral theories of war with positive law accounts, such as the UN charter or, more broadly, liberal internationalism, in which war disappears in favor of the "domestic analogy" and "police work" in place of war. I call it eschatalogical because it is a kind of end-time ideology, but whether that is a useful label or not, it is not adequately accounted for in the traditional version of things.

Perhaps it would be more useful to start the other way around, and classify theories of ethics of war as unlimited, limited, and prohibited. Then one could divide up realism, just war theories, rights based theories, and so on into smaller subdivisions, which seems better to fit the theories anyway.

Comparing Walzer's just war theory and the traditional Christian just war criteria, Feb 27 class notes

Here's what I propose to discuss in the February 27 class:

I asked you to read two different bodies of stuff. First, Walzer, chapters three and four. These chapters take up what Walzer thinks is essentially wrong with war. He says war is wrong because war is hell, but he gives war is hell a meaning fundamentally different from anything I mentioned in last class's gloss on Sherman's "war is hell." War is hell, for Walzer, fundamentally because it coerces people, combatants and noncombatants alike, in ways that are unjust and which violate their rights. War is hell because, as he says, war is a form of tyranny. This is quite different from any of the readings of that phrase I suggested last week.

This is to say, Walzer thinks that war is fundamentally wrong not because of its bad consequences primarily - of course he acknowledges them, but they are not the sum total of his objection - but because it violates rights. The question is how it violates rights, and Walzer says, well, one way to consider how it violates rights is to consider those (marginal) forms of warfare that do not violate rights - wars consisting of consenting participants who conceive of it as a game.

As we discussed last class, that participation might still be wrong - indeed wicked - but to kill in those circumstances is not necessarily unjust or a violation of rights. (We might think of duelling, for example.) But Walzer confines our consideration of what is wrong with war fundamentally to the question of rights. A theologian - not necessarily Christian, in fact - might object that this is not enough - you cannot give consent to kill or be killed as in a game, because you consent to something that is not yours to consent to. Whereas Walzer is focused on a contemporary and secular way of making out the argument against war, by asserting the idea that what matters in war, and what makes war wrong, is its violation of rights, as evidenced by the lack of consent in nearly all wars. Consent, liberty, freedom for oneself - these are all paradigmatically values of secular modernity - and very different, and providing a different account of the wrongness of war, from the religious view that one's life, and others' lives, belong to God.

This idea that war is a form of tyranny, and a deprivation of rights thereby is a powerful one. It allows Walzer to generate a powerful, and powerfully secular, form of rights discourse by which to talk about what is okay and not okay in deciding to make war, and in conducting war itself. But the move to limit the discourse to a rights discourse also limits the moral impulses, so to speak, on which Walzer's theory draws - and means that it is not really the whole tradition of just war thought and its criteria, which is presumably part of the reason that Walzer does not anywhere lay out the traditional criteria of the just war - the five, six, or more requirements that are usually asserted as the criteria of the just war. He does not do so - in a brief conversation with me at a conference once several years, he sort of said so - because although he is looking for a way to provide a secular theory of the just war that relies on rights but not on God, it is (deliberately) not a full theory of the ethics of war. It is concerned with a particular issue, the violation of rights, the violation of rights that arises from unjustified aggression, and resistance to aggression. Walzer's theory is really a theory of resistance to aggression. That is a very large consideration, to be sure. But the tradition of the just war, with its consideration of overall consequences, of prudence, of many historical, political, etc., factors that stretch far beyond a consideration of rights, even to resist aggression, is actually much broader than that.

2. This gets ahead of ourselves, however. Let us now turn from Walzer, and look at the addition readings I gave - from James Turner Johnson, mostly, who is a famous historian of religion and the just war tradition at Rutgers University - in order to state the tradition in its historical form. You'll notice that Johnson offers, in one of those readings, a critique of the limits of Walzer's rights based approach - notably that it is profoundly ahistorical. So, what are the traditional criteria? (We'll walk through them in class, first in summary, and then over the next couple of classes we'll go over them one by one.)

3. What are the differences you can see between these criteria and Walzer's theory? One example of the differences can be found in Walzer's very strong claim that all things being equal, one should resist aggression, and that one is always justified in doing so, even presumably in a losing cause. The traditional just war criteria do not say that. On the contrary, they say one should calculate the likelihood of success, and if it looks like a hopeless cause, one should consider the total consequences, even as against permitting injustice, and consider not fighting. Why are these things so different? I do not think this is a minor difference in assessing factors of just war theory - my view is that this goes to the very heart of Walzer's secular theory of the rights of political communities, versus a religious tradition in which the right action ought to be assessed from the point of view not of a political community, but trying to see with the eyes of God and the angels, as it were, - from the outside, looking down on the total conflict. Am I right about this? (I write about this a little bit on my blog - I'll post the reference later.)

4. Thus, Walzer is one version of a rights based just war theory; the religious traditions of Christianity offer not just one but several other possibilities. I stress that this is a tradition - it is a framework for arguing about war's ethics, not a calculus. You don't simply plop in some values for this or that and, click, out pops an answer. It is a tradition that invites very different moral conclusions about particular wars and their circumstances, depending on how you read the facts, of course, but also depending on how you interpret and read the moral values themselves. For one thing, in part this is a tradition about rights and justice, but it is also consequentialist - as, it would seem to most of us, any discussion of war must partly be - and also about prudence. It is about individuals and their rights, political communities and their rights, and consequences and prudence, and even including Thucydides 'argument upon your safety'. I would hate anyone to come away from this discussion thinking that this framework yields one simple answer; an essential part of this class is being able to articulate different answers that might come out of this same framework.

Okay, where we go from here is to walk back through the criteria one by one and fill in what they mean, or might mean.

Friday, February 23, 2007

Congratulations to J.B. Moore Society of International Law, University of Virginia

I'm blogging tonight from the University of Virginia, where I have just finished attending the J.B. Moore Society of International Law's annual symposium, this year titled, International Law at a Crossroads. It was an absolutely stellar conference, and my congratulations especially to the students who put it together - Melany Grout, the symposium director, and Adil Qureshi, society president. Wonderful hospitality, a wonderful group of panelists - and the presence of the JAG at UVA adds a seriousness and expertise that is quite startling.

John Bellinger, legal advisor to State, opened the conference with a defense of administration policy; former Navy general counsel Alberto Mora delivered a blistering, impassioned keynote address at lunch that, even though I didn't agree with all of it, was both moving and profoundly argued - I hope they pay him a lot as Wal Mart international general counsel, because his departure from government is a great loss to government service. I was on the opening panel, discussing executive power, the war on terror, and international law. The always terrific Elisa Massimino with whom, I am proud to say, I've recently co-authored an article; the distinguished national security law scholar John Norton Moore, who moderated and introduced several sessions; the JAG school's (and now Creighton Law School's) Sean Watts - a fabulous lineup. And my former WCL student, now JAG student, Katharine Brown, caught me during the break - I didn't so much as recognize her in army fatigues.

Among the many comments in the panels, I was particularly struck by - and heartily agree with - Sean Watts' call for the US to develop its own study of customary international law in war. He noted, as I have certainly noted, the astonishing silence on the part of the US government to the ICRC study, now two years old. I have long been concerned that the US government makes no apparent effort to assert its views on laws of war matters formally as opinio juris; this failure seems to me extremely damaging in this period in diplomatic and international law history. The ICRC study is a magnificent piece of scholarship; I've written about it before on this blog, but it has, from the US point of view certainly, grave problems in its methodology. Yet the United States makes seemingly no effort either to offer a serious, official critique - much less anything else in its place.

The other feature of this conference - true of practically all such conferences, but the fact that this one had so many JAG experts present with, presumably, a greater historical knowledge of wars, made it more striking to me - was the virtual absence - let me be stronger, the utter absence - of any reference to state practice, that of the US or anyone else, as state practice, as the international law source of law, state practice. That gap seems to me also a serious issue, when it comes to dealing with areas in which practically everyone seemed agreed that existing law in treaties or ordinary formulations of custom, did not seem workable.

Monday, February 19, 2007

Sherman's war is hell - just war theory class discussion notes, Feb 20

Sherman's 'War is hell'. I want to begin with Walzer's account of Sherman's famous expression, war is hell. The point here is to tease out multiple meanings and ways in which that phrase can be read to express different senses of the moral reality of war. I will give three readings, starting with a "zero" reading - ie, the context in which Sherman actually spoke.

0. Sherman's war is hell speech. Sherman seems not have to spoken the line famously attributed to him. Instead, speaking many years after the war to an audience of veterans but also younger men and boys in Columbus, Ohio in 1880, he said:

"There is many a boy here today who looks on war as all glory, but, boys, it is all hell. You can bear this warning to generations yet to come."

In this context - a post war context which was increasingly infusing the Civil War with a patina of martial glory and romanticizing battle - Sherman here neither justifies atrocities nor justifies war itself. It seems instead, rather, a reminder to veterans not to gloss over the horror of their experiences and to young men not to romanticize war.

On the other hand, it is also evident from Sherman's writings, his letters, and above all his superb Memoirs, that Sherman indeed regarded war as in immutable, entirely natural part of the human landscape. He was in no sense conventionally religious and, as Charles Royster has put it, for Sherman war was a "natural phenomenon, guided by nature's laws, which God had created but which operated with the consistency of mathematics, not by God's 'mere fiat'." Yet he was a firm believer in order, and that history tended toward order - this constituted progress. When humans, for example, willfully "defied the movment of history ... their deviation would inevitably be corrected either by political persuasion or by violence. In the latter case, combat was as natural, as scientifically explicable, as the thunderstorm or the movement of the planets; the ultimate result followed as ineluctably as did effects of the laws of physics."

In that sense, Sherman was profoundly religious, in a special sense, a believer in a telos of the universe in which even human actions had a purpose toward order even if battle itself partook of a disorder that could not be compassed by generals and their plans. "Wars are not all evil," Sherman wrote late in life, "they are part of the grand machinery by which this world is governed." (Charles Royster, The Destructive War.)

That latter sentiment is something quite different from a warning against the glorification of war; it does not glorify war, but it is altogether accepting of it - accepting of it as hell on earth.

1. 'War as hell' as an empirical assertion. One way of reading 'war is hell' is to treat it as an empirical assertion about the nature and experience of war. That is easy enough looking at battle, especially in the Civil War. However, we will also talk about wars, as Walzer notes, where war is not hell - it is a chosen experience, not that different from extreme sports, where the participants are voluntary and it is a conscious effort at self-testing. But those wars are the very, very rare exception - the question is what follows from the empirical observation that war is messy, nasty, brutal, hellish, etc.

The answer most often given is that wars, therefore, should be as short as possible. The most complicated and interesting factual and conseqeuntialist claim is, however, additional to what we've said so far - the claim that it is better to have a short, hellish war that might be a massive explosion of violence and horror, but which is short, than a long war which might be at most moments less violent and horrible but which, over time, is actually worse for the societies involved because of the evils of violent disorder.

There are many versions of this claim. Sun Tzu, for example, wrote of keeping wars short in order not to devastate the peasants who could not survive several years of campaigns without starving. Bertolt Brecht wrote his famous anti-war play, Mother Courage and her Children, against the backdrop of the Thirty Years War, in which the grand irony of the play is that the war itself has become the economic basis of so many people's lives that it's not clear that anyone is interested in peace - echoes of the long-running war in southern Sudan, in which over a twenty year time, international relief aid had become so built into the economy of the region that it had become a reason for continuing to fight.

Or the disasters of failed states, ruled by shifting gangs and clans and warlords - this was the world which Augustine surveyed in which he announced that the obligation of Christian rulers was to provide "ordinary" just order, with an emphasis on the virtues of order, tranquillitis ordinis, rather than dreaming of the eschatological peace of the end of days. One of the fascinating transformations in the current debate over the Iraq war has been the conversion of liberal idealists, previously taken with the idea of "no justice, no peace," coming to the realist view that order, just or not, can be a very good thing. (There is a scene arguing exactly this in the great Hungarian novel The Loser, at the time of the 1956 revolution.) So, goes this assertion, if you are going to have a war, then the best thing is that it be short and sharp, decisive even, because although war is hell, it is much better to experience that and avoid the greater disaster of long term disorder, which is the real hell.

So, in the end, this latter reading of 'war is hell' is an empirical assertion underlying a consequentialist judgment about what produces the best long term results - war is hell, but a short time in hell is better than long term disorder and violent insecurity.

2. 'War is hell' as realist argument for unlimited war. We have already walked through the argument by which descriptive realism becomes a moral justification for unlimited war - this is the Hobbesian spin on Thucydides that we discussed last time. I won't spend much time here on it, just to note that you can easily read 'war as hell' as shorthand for that argument. War is hell, you are, when in war, in the state of nature itself, and so it cannot be limited. This is realism as an argument for unlimited war.

3. 'War is hell' as argument from 'superjustice'. The final way I propose to read 'war is hell' is, strikingly, an argument not from realism but from justice, and yet an argument for unlimited war. It is probably the argument closest to Sherman's deepest views on the moral nature of war - and while it an argument for unlimited war, it is not an argument from realism. Sherman argues that because the South has rebelled against the Union, it has violated what might be seen as natural law. The consequence is a reaction that Sherman himself seems to contemplate in almost physics-like terms - a violation of the natural moral order begets an opposite and equal reaction, and it is one that is irrespective of the agency of those who carry it out. Notice how Sherman, in Walzer's summary, denies responsibility for the things that his army does to the South - because they morally did the wrong, he says, the consequences are both as natural as an opposite and equal reaction to reestablish the status quo, and not in any sense his fault or even doing - what he does is simply what the South did to itself.

Now, this argument is troubling on many grounds, starting with the peculiar and untenable shifting of agency. It will obviously not do for Sherman simply to deny that he and his army had any choice or agency in the matter; of course they did. They could have let the South secede.

More interesting is the claim of natural law that underlies the denial of agency. It is not a claim of necessity in the realist sense, not even in the Hobbesian sense. It is not an argument from the necessity of our survival. It is, on the contrary, an argument from the most profoundly offended sense of justice. And the sense of offense is so great that it permits any form of response - war unlimited in every sense - to right the wrong. We are accustomed to thinking of the concept of justice in war as one which limits war, both its causes and its conduct. But that is not necessarily the case - justice, instead, can also be a profound argument for denying that war can have limitations. No justice, no peace, taken to a very grave extreme. And that is what, at bottom, Sherman is saying. He affects the passive equanimity of a hammer in the hands of a 'natural' response; it is not his doing or his agency. But what drives the hammer blow, it turns out, is a sense of justice that will not admit of any limitation on its drive for justice.

The drive for absolute justice, without limit, is the subject of much literature from the Greeks, who, with their sense of moderation, as hubris and a source of traged, down to today. Durrenmatt's The Visit of the Old Lady, for a modern example; or Albert Camus' very great essay, The Rebel. But Sherman - and this seems to be pretty close to what the man actually believed - was not finally a realist, but a fanatic for justice. I want us to bear this in mind as we look at moral claims to limit the scope of war - the standard account of the ethics of war tends to see, with Walzer, realism as the primary way by which unlimited war is justified. But in many ways, it is even easier to get there with a claim of genuinely unlimited justice.

The other thing we will discuss, or start discussing, on Tuesday, February 20, is why war is wrong. I will follow Walzer's discussion quite closely. The fundamental question is what makes war wrong for Walzer - the key is that it is a form of tyranny, of coercion, of denial of natural liberty to individuals as to a political community. And I will suggest that it is this element of Walzer - this focus on the denial of liberty - that most importantly makes Walzer's account of just war theory a secular one. It is not merely that Walzer seeks an account that does not explicitly appeal to God or God's laws or commandments - it is, even more, that Walzer's seeks a theory that affirms the basic secular tenets of modernity, starting with liberte, egalite, and fraternite. I will start off into this discussion in class.

Sunday, February 18, 2007

"Secular eschatologies" - thanks Glenn for the Instalanche!

Instapundit has been kind enough on occasion to post a link to something on this blog, and boom, a couple of thousand visitors. It's incredibly cool. But today Glenn was kind enough to link to an academic article, actually a book chapter, of mine posted on the Social Science Research Network, SSRN. Larry Solum, my old and dear friend, and publisher of the very great Legal Theory Blog, had posted a reference to it on his blog, and it had immediately had a very respectable 20 downloads, almost certainly by law professors. Then Glenn gave it the Instalanche, and it has been downloaded an addition hundred times or so - and this with an article that, because it is a scan of a chapter, takes a while for the pdf to download.

Think about this for a moment in the distribution of legal scholarship. The article is an obscure book chapter in an obscure book from the late 1990s, Religion and Human Rights: Competing Claims?, ed by Peter Juviler and Carrie Gustafson; it's a very fine book, in fact. That article received some attention at the time because it got picked up as a foil by Michael Ignatieff in a New York Review of Books article on the "midlife crisis" of the human rights movement. It's not a long article, less scholarship than a somewhat satirical essay applying New Class theory to what was then just starting to bill itself as 'global civil society'.

I finally posted it to SSRN in a long running attempt to get my published stuff all in one downloadable place. It gets noticed by Larry and Glenn, and revived. I daresay it has more new readers today than it had when the book first came out.

You can, by the way, get to the article at SSRN, here. It takes a little while to download. Glenn and Larry, thanks!

Thursday, February 15, 2007

Does blogger seem to be working again?

(Okay, the picture loaded without the error message, so that's good. But the text is all squinched up. Oh well, better than nothing.)
(Huh, that one worked, too. Maybe it really is fixed. Okay, let's try a picture - and maybe it will even load without messing up the justification of the type face, which is why I stopped using pictures in posts a while back - the type got all squinched up in blogger beta, although it didn't in old blogger. Okay, so here is a picture of Renee from last year, in the British Museum. Notice how happy she looks, which is to say, notice how happy she looks, out of and away from her school.)

(Okay, that one worked. Now let's take longer and add more text below and see what happens.)

I haven't been doing too well with blogger in the last few weeks, getting error messages whenever I try to post. It seems like if I post fast enough, it will go through, otherwise the error message. It's annoying, and I may change to some other service if the problem doesn't go away.

Test text:

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.

Michael Ignatieff
Blood and Belonging:
Journeys into the New Nationalism

Wednesday, February 14, 2007

Walzer and realism - notes for Just War class, February 13

Below are discussion notes I circulated to my law school just war theory class for February 13. Because not everyone has had a basic undergraduate course in ethics, I usually start out with some basic ethics 101 discussion, before moving to ethics and war.

Essential ethics theory background. I want to go back (big surprise!) and add one more element to the thumbnail sketch of the moral theories at play in discussing the ethics of war.

I first raised something that is not actually a "moral" consideration at all - prudence, self-interest, what's good for me - in order to distinguish it from moral considerations, questions of good and bad, right and wrong.

Second, I divided the moral questions into two main theories - two main ways of answering the question "what is right and good?" - into consequentialist theories and deontological (for our purposes, rights based) theories. The difference between those two? Very (very) roughly:

Consequentialism says, the right or good action is the one that produces the best consequences in the real world - usually some slogan like, "greatest good for the greatest number," or, as Mr. Spock put it (as he was dying), "the needs of the many outweigh the needs of the few or the one." Utilitarianism is perhaps the most widely known version of this theory, and Jeremy Bentham or Mill its classical exponents, with someone like Peter Singer as a contemporary adherent.

In many ways, this is a deeply attractive philosophy and applied by many social reformers in ways that continue to benefit all of us. However ... it also leaves this considerable problem, what I identified as the "Let's chop Forrest up for his body parts" - our needs might outweigh his, but somehow we still generally think it's wrong. We don't think he "owes" us his body - it's him and it's his - and we usually express this by saying that people have certain fundamental rights. Including not to get snatched for your body parts even if it would save the rest of us. Rights theory is not the only deontological - duty-based - theory, but it's the one that will principally interest us in exploring Walzer's rights-based theory of the ethics of war.

So we have consequentialist answers to the question of what the right and good should be. But we also have answers which say, well, sure, consequences are important, but they do not always settle things - in at least some circumstances, we look not to consequences but to a person's rights, which effectively override what a consequentialist answer would be. An assertion of rights is one form of this alternative to consequentialism. Note that even a rights-theorist is not indifferent to consequences - but holds that they do not always settle things.

What I now want to add to this picture builds on something I mentioned in class and moves in a quite different direction. Viz., that when we deal with groups of people - political communities, for example - then the prudential thing can also be, in a certain sense, also a matter of morality. When you act in a way that, in one sense, is self interested, in your own interest, but do so on behalf of people to whom you owe obligations, for whom you have responsibility, then those actions also take on a very important moral quality.

Here's the new wrinkle. When it comes to war, very often, responsibilities for others, for the political community, is very important. But it is more than just a "responsibility." It is, indeed, a bond of emotion, feeling, bonds of affection, and genuinely love. Yet, strikingly, although what appear to be "prudential" considerations are able to encompass bonds of affection, neither of our two genuinely "moral" theories has a very easy time doing so. It is a problem which has been much discussed in moral philosophy in the past 25 years.

If you are a consequentialist, you should be looking for best total consequences - and it should not matter that you save or don't save your husband, your wife, your child, your anything. Consequentialism is very unforgiving of personal relationships.

Yet the same is true of rights theories - and that strand of deontology that arises from Kant - it is an ethics of duty alone, irrespective of affection. Did anyone read that little snippet of Arthur Rex that I posted in the discussion board? It was my ironic Valentine's Day post, a snippet in which Arthur says to Merlin that he will marry Guinnevere and remain faithful to her, whether he loves her or not because, if he has made a vow, her "identity being irrelevant." It turns love into an impersonal duty, and Merlin is highly skeptical. It is as though Arthur proposes to marry not Guinnevere, but instead his marriage vow itself. It's an amusing exchange because we, with Merlin, understand that this is a matter of love, not duty, and that in love identity of person always matters.

The point is that when it comes to war, the sacrifices of war, what persuades people to march off to war, is often the belief in bonds of affection. It is very hard for an ethics of war to really account for how we actually feel about war without taking into account the feelings people in a political community have for one another and that community. Sometimes it blinds them to fighting for an unjust cause, or to fight unjustly, but often it is what motivates them to resist evil on the other side.

As we move into the ethical discussion, one of the very difficult questions for our two moral theories is how affection is built in. Christian tradition says that war can sometimes be an aspect of Christian love, the defense of another; Christianity, unlike our two moral theories, is not an ethics of consequences nor even, surprisingly, an ethics of duty, but an ethics of virtue and acting from the proper virtuous motivation.

Walzer's realism. That said, we turn to realism, both IR realism and ethical realism. In Tuesday's discussion, I want to consider two different parts of Walzer's discussion in order to understand his view of realism and how it connects the prudential realism of a descriptive theory of international relations and an ethical realism that provides, in Walzer's view, the warrant for unlimited war. So:

The Melian dialogue. What is it, what are the claims on both sides? In particular, what is the meaning of those very, very slippery terms - necessity, nature, the nature of necessity, a necessity of nature, and natural necessity? Walzer reads the Melian dialogue in light of Hobbes especially. The argument connects IR realism with ethical realism in the following way. IR realism asserts that the world of international relations, the world of international states, is essentially the Hobbesian state of nature, anarchy, nasty, brutish and short, as Hobbes said, and as someone else said, 'every man for himself and God against all'. If that is the correct description, and if there is no possibility of coming out of that state of nature into an ordered society ruled by a sovereign to impose the rule of law, then we are governed by nature. And the law of nature is that whatever you do to survive is okay. This is natural necessity. A descriptive predicate about the state of the international order is conjoined with a moral predicate about what is morally okay in the state of nature, and the result is, well, anything to survive - and the result is the possibility of unlimited war.

We will try to look back to the Melian dialogue and see if this helps to explain the arguments made there.

(Notice that the Hobbesian argument in the context of political communities in international anarchy makes, in some respects, an even stronger argument for unlimited war in the state of nature than mere individuals do. This is so if one accepts, as I mentioned above, that the apparently merely prudential argument for survival is actually partly a moral argument insofar as the political community bears responsibility for the safety of its members. An individual in the state of nature might take risks with his or her individual life that, as a moral matter, the trustees (literally) of the political community might believe they have no right to take because of their obligations to their members. The result might be an even greater propensity to war.)
(Notice that the moral argument introduces the possibility of another solution to the ethics of war - one that Walzer does not seriously consider, but which is the preferred liberal internationalist solution - let us leave the anarchy of the international system and create a genuine society that will have a sovereign and the rule of law. We will talk about this later in the term; I am very skeptical of this, but it, liberal internationalism is the preferred alternative for many.)

Next week: Sherman's 'war is hell'. I want you to think imaginatively about ways in which this phrase can be understood as an argument about the morality of when and how to fight wars. I will suggest three - only two of which are, curiously, really truly "realist." But you may come up with others.

It's not fixed

Dang, this is irritating. I just lost yet another long post. Why didn't I save it?

Tuesday, February 13, 2007

I've had problems posting to blogger of late

I've been busy with other writing projects, so I haven't been looking to post much - but unfortunately, for the last couple of weeks, I've been unable to post anything to Blogger at all - just got error messages. Let's hope it's fixed. Actually, sometimes I think about migrating to typepad - that seems to be what all the cool law prof bloggers like Larry Solum use.