Jeff McMahan on morality and the law of war

Jeff McMahan, Rutgers-Philosophy, has a new paper up over at University of Pennsylvania titled The Morality of War and the Law of War - h/t Larry Solum. It is a very fine paper, and I strongly recommend it to those considering Walzer and just war theory generally. I don't think I agree with all of it, but it is an excellent paper.

One point made close to the beginning serves as an excellent springboard into discussion of what Walzer calls the "moral equivalence of soldiers." It is the idea that if you shoot at them, they can shoot at you, and vice-versa - that which defines participation in the "game" of war, so to speak. But, as McMahan says, it is actually quite wrong as a moral principle. When it comes to policework, for example, what we might otherwise think of as jus ad bellum - the reason you undertake violence - makes all the difference in the world. Criminals have no equivalence to shoot back at police. Why should it be different in war? Shouldn't the cause for which you fight matter to whether you are entitled to use violence at all?

It is a problem with very practical ramifications, for example, as countries that contribute troops to international peacekeeping and peacemaking of various kinds look at the rules of war and wonder why their soldiers should be liable to getting shot at under the ordinary rules of war.

My own sense of this very good question? First, the problem is a central one in ethics of war. I discussed it once a long time ago in a very different setting, trying to describe the moral and legal differences between being a soldier and a policeman, back in the 1990s, in a review of Nicholas Shakespeare's The Dancer Upstairs (very fine film, by the way). (This was in an AJIL conference, I'll try to post it to SSRN as a pdf one of these days.)

One traditional answer is that in time of war, law is silent - and even if that is not completely true, it is enough to silence law on this particular point.

A second traditional answer in the law of war comes from a certain form of moral relativism - who is to say who is right and who is wrong under jus ad bellum? Lacking some overarching moral or political or legal authority, no one is entitled to judge. This leads to a certain form of neutrality as moral relativism - something I discuss toward the end of this academic article, and a little bit in this Wall Street Journal book review of the Swiss writer Friedrich Durrenmatt, here. My experience of staff of the ICRC over the years is that some of its people, individually, do have a strong sense of genuine moral relativism. In discussions with them about Iraq or Afghanistan, or pretty much any other war except, perhaps, Bosnia, the attitude among many staff seems to be a shrug, anyone with a position on war is by definition partisan and partial, and we at the ICRC have the superior moral position of neutrality. (The two articles above sharply attack the idea that neutrality is the higher virtue; I describe as necessary but always residual, and criticize those who always want the ICRC but never Churchill.)

As an organization, however, I would describe the ICRC's attitude as not precisely relativism with respect to jus ad bellum, but a quite sensible attitude of suspension of public disbelief as to questions of jus ad bellum in the service of another value, that represented by the humanitarian imperatives of jus in bello. This is thus a third answer to the question. But the morality and moral psychology of this suspension of (public) disbelief stand in need of much more theoretical work, and one of these days I hope to organize a Telos symposium that would take up the theory of neutrality from multiple standpoints.

Fourth is Walzer's own answer to this question - one of his answers, anyway - which is that war is a form of tyranny and coercion. War coerces the non-aggressing side to do things and act in ways it would not otherwise do, both in respect of civilians, its own people, and people on the other side. And one of the forms of coercion is the participation in war of many people who are coerced in the sense that they cannot be said to be responsible for the actions which they are required to carry out. We set limits in the laws of war on what those actions might be, but in general we do not hold them responsible for the policies of superiors because we see them in some fashion as coerced.

This does not set aside the "moral equivalence" concept that goes with the game of war, above. But, note, one of the peculiarities of Walzer's moral equivalence of soldiers is that this "game" idea of war of war is drawn from what the moral conditions of fighting would be if it somehow were uncoerced. How would freely consenting, freely participating combatants fight if it were a consented to game? As moral equivalents.

Why is this latter idea important in Walzer's overall moral theory of war? I think it can be made out best as this. Walzer's primary value is the preservation of liberty through rights, in which resistance to aggression is not just a right but, all other things equal, a moral obligation on behalf of a political community. (He says, flatly, all things equal, it is always okay to fight to resist aggression - not merely that one is entitled to do so. This is a very long way from the "from heaven" view of Catholic just war theory, in which overall good and evil must be taken into account.) War coerces; war is tyranny. But a fundamental purpose of the idea of morality in war is not merely to oppose aggression, but to do so in a way that best preserves rights and liberties. And one way to do that is to structure the acceptable rules of fighting as those which would be consented to by free participants - and they would accept the moral equivalence of soldiers. Soldiers are coerced, even when they volunteer; but they fight according to a convention as though they were free.

(I'm not sure Walzer would agree this is the argument, and I'm sure it has problems, but I do think this is the basic idea. There is some kind of linkage between liberty, tyranny, aggression, and the moral equivalence of soldiers.)

However, it is possible to go with the moral principles that McMahan says correctly are the normal operant moral principles of justice. What happens in that case? Well, it is still a justice-based one. Indeed, it can be called the "super-justice" position and it is made out most dramatically, surprisingly, by William Tecumseh Sherman, of all people.

This may seem surprising, since Sherman is most closely associated with the phrase, "war is hell," and following Walzer that is usually taken as an expression of uber-realism. But if one reads Sherman's quite remarkable memoirs, it becomes clear that Sherman, far from a realist, has a quite extraordinary sense of justice. Overdeveloped, in fact. A genuinely metaphysical sense of justice, in fact. Believing that he has jus ad bellum on his side, anything he does to the enemy is accounted as natural justice playing itself out against the original violator of the just order. He is the hammer of natural law, and at some points in the memoirs disavows any moral responsibility for what he does; it is in the nature of a reaction. It is a remarkable sense of karma, almost, in which Sherman disowns responsibility for his own actions and sees them in a sort of physics of natural justice. But it is distinctively a theory of natural law and right, although vastly different from Walzer's rights-theory and the Catholic version of natural law.

The effect is to reach what Walzer describes as 'realism' in war - but what he really means is a conduct of war that can recognize no moral limits on conduct - through the absolute belief in the jus ad bellum rightness of one's cause. Combined with the other side thinking exactly the same thing, all limits on war cease. But it is not a 'realist' result (i.e., no limits) reached on prudential or consequentialist grounds - entirely to the contrary.

(I've been working for a while on this topic on the backburner, under a tentative title of Sherman's 'War is hell': Three readings. I haven't got as far as I would have liked. There is more discussion of these issues on this blog, some of it overlapping with what is said here, under the just war, Walzer, and laws of war tags.)