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.)

David Martin's TLS review of 'The Price of Peace'

David Martin, the eminent LSE professor (now emeritus), has an outstanding review of what appears to be an outstanding (I just ordered my copy) new book on just war theory - The Price of Peace: Just war in the twenty-first century (Cambridge paperback), eds. Charles Reed and David Ryall - in this week's TLS, June 29, 2007, No. 5439, p 24-25. As it's not online anywhere, I'm afraid you'll have to take my word for it.

***
I'm moving this comment from the comments up to the main text to make it more visible in case anyone wants to respond to it. As I said above, I'm waiting for my copy of The Price of Peace to arrive, so I can't respond to what is said here about the book; I will do so once I've received and read it. But I have very considerable respect for David Martin's views, and I think the review an outstanding short essay - I'm very sorry it is not online, even for a fee (eventually it will show up in the TLS subscriber only archive). If anyone else wants to comment, by all means, and I will comment on the book once I've read it.

***
I would be very interested in hearing others' comments on the review (which I've not seen) and the book (which I have). The book has some fresh faces, and also, usefully for critics, provides recent pieces by "just war" theorists who've helped bring just war theory into disrepute by appropriating it to support the war in Iraq: James T. Johnson, Jean Bethke Elshtain, George Weigel. Sorry, no Michael Novak or R.J. Neuhaus, but the family resemblances within this group are strong enough that the general picture emerges.

One feature of the picture is the trashing of in bello considerations. Others are its romantic attachment to "precision weapons" and the ongoing assault on the American bishops. Omitted from the book, unfortunately, is this group's disdain for the Peace of Westphalia, for the Catechism's worries about "modernorum destructionis mediorum potentia," among other topics.

They dislike Westphalia because it strengthened state sovereignty, which they generally view as merely a troublesome impediment to selective American efforts at regime change. They seldom tell us why Westphalia was desirable: it's as if one man's 30 Years War is another man's (or woman's) humanitarian intervention.

The book omits any reference to Ann Orford's work on humanitarian interventions. Jeffrey Sachs is nowhere to be found.

This does not mean there are not good contributions here. And it is a service to history, if not to the cause of peace, to include Elshtain, Weigel and Johnson. (That Johnson, a real expert on just war, should be as optimistic about "precision weapons" as he is, is damning testimony to the power of academic compartmentalization.)

I'm providing my address because I would be interested in feedback.

Dan Tompkins
Temple University
pericles@temple.edu

Richard Hopton's History of Duelling reviewed by Jon Latimer in the TLS

I am eager to read this book, Richard Hopton, Pistols at Dawn: A History of Duelling (Portrait 2007, and it doesn't seem to be on Amazon US), particularly on account of the lovely review essay by Jon Latimer in the May 11, 2007 Times Literary Supplement. It is not online, but will eventually show up in the subscriber only archive.

Duelling interests me for a several reasons.

One is that my childhood sport was fencing - I read the Three Musketeers as a boy and discovered that the college town where I spent my cavity-prone years, Claremont, just outside Los Angeles, had in residence a world class fencer and fencing coach, Francis Zold, a Hungarian who had been on the Hungarian Olympic team before the Second World War. He had gone on to become a professor of intellectual property and copyright at the University of Budapest. He and his family fled Hungary in 1956, and settled in Claremont. Discovering that a specialist in Hungarian copyright law and whose English was so-s0 - although, like so many Hungarians, he was in fact a gifted linguist and was fluent in at least five languages - was not in great academic demand, he went back to coaching fencing at various southern California colleges, including Pomona College.

He also took on high school students in a local community club. He was one of the greatest teachers I have had in any field - others include the UCLA professors Rogers Albritton, Philippa Foot, Herbert Morris, and David Rapoport - and on account of spending all my time fencing, I didn't learn many other sports. At one point, he wanted me to come spend time in the afternoons with the Pomona College team; I was a freshman in high school, and this entailed asking permission of the fearsome head football coach and PE teacher, a huge bear of a man who would tell you to drop and do 50 pushups without thinking twice. I very shyly explained what my fencing coach had in mind - the football coach broke in and said, you are a student of Francis Zold? I said, yes, not sure what that meant. He said, Master Zold is one of the great coaches in this country, and whatever he wants, you do. Now get out and make sure you make him proud. Not being especially good, I didn't, although I tried hard.

Later on, when I finally got around to college at UCLA - I was 24 or 25 years old, I had spent several years working blue collar jobs in LA and a couple of years as a Mormon missionary in Peru - I joined the UCLA fencing squad. It didn't last long after I joined and was cut in a budgetary overhaul - however, I met some genuinely wonderful people there, in particular the LA television writer, Tim Maile, who is a successful writer of teen shows, including dreaming up the Lizzie McGuire Show. Also I received a UCLA letter and handsome leather letterman's jacket, which never failed to impress girls until they found out the sport involved.

All that by way of saying that fencers are often interested in subjects like duelling. I have a second, quite different reason for interest in the subject, however.

In Just and Unjust Wars, Michael Walzer raises the question of wars - fighting, killing - that are not unjust. He offers examples of aristocratic young men who fight each other as a grand game, by choice, perhaps as a rite of passage, and says that a death in such circumstances of choice and autonomy is not unjust. It is a very careful locution, because it qualifies the judgment in two ways. One is that although the death may not be contrary to justice, it might be contrary to other moral virtues and rules - such as not killing or being killed in what is merely a game - a Catholic theologian, for example, would surely reject the notion of "autonomy" here. That is to separate justice from other virtues. The second qualification, however, is that Walzer does not say that such a death is just - merely that it is not contrary to justice, which is a quite different thing.

Duelling, whether with swords or pistols, personalizes the game. It also puts honor, or some notion of it, ahead of justice and other virtues. It is, as the review notes, a practice that in Western societies has long been forbidden by authorities, especially in the military, apparently largely on grounds that it weakened the fighting ranks. At any rate, duelling is one of those social practices that tests the limits of how far we are willing to admit of autonomy.

Robert Wright's Easter Sermon in the NYT

Robert Wright, writing in the Saturday, April 7, 2007 New York Times, on the op ed page but behind the Wall, offers an account of how the teachings of Jesus can be understood to be strategically good for dealing with terrorism - "Jesus as a counterterrorism strategist," in the words of the headline. Wright is a writer who is often too clever for his own good, and this column is no exception.

I leave aside the incentive problem - see, in the post below about my reading list, the If you give a mouse a cookie entry about the incentive problem in turning the other cheek. The real issue in Christian ethics concerning the use of force is one that is not in the least unique to Christian ethical theory, but has a prominent place in it because of the history of a religion that began as a despised mystery cult of the lower orders that eventually became the religion of all society, including the Roman Empire's rulers. That is the question of trusteeship.

When you act for yourself - negotiate for yourself, for example, make deals for yourself - you can afford to take risks that are, so to speak, yours to take because you can decide for yourself. But the nature of diplomacy and international politics, the negotiations over war and peace, are never so easy, because the inherent nature of negotiations is that negotiators and diplomats and poltiicans and presidents and even, one might hope, Speakers of the House speak on behalf of a political community, with whose safety and security they have been entrusted. When you speak and negotiate for others, for their safety, the ability to take risks with the safety is necessarily curtailed by the nature of the fiduciary role you play. It is a common error of international relations modeling games - to assume that the same level of risk and safety that a non-fiduciary can negotiate is the same as that of a fiduciary. What you might risk for yourself - to turn the other cheek, to engage in the highly personal, individual, person to person ethical stance of Jesus' teachings - is not something a fiduciary can afford to do. Christian rulers have understood this - and so have Christian theologians, in elaborating a theory of just war under natural law that comprehends that war can be an aspect of Christian love for others in protecting them.

It might be possible to do what Wright recommends, and might be a good idea as a matter of strategy. But that's not because it is Christian or comes from the sayings of Jesus of Nazareth. A ruler, including one who takes the obligations of Christian ethics seriously, must consider the safety of others than himself. In a pluralistic society, this is actually an even greater ethical obligation. A committed Christian community might commit itself, including its children and infants, to martydom in the arena, although today we would no longer countenance it; the leader of a pluralistic community cannot make such a commitment on behalf of others. But the ethical consequence of being a fiduciary means that it constrains even actions that the political actor, acting for himself or herself alone, might be willing to risk. Not completely, of course, because prudence and safety can also counsel compromise, but the range of action of a fiduciary is significantly constrained.

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.

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.

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.

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.

On the differences between Catholic just war theory and Michael Walzer's just war theory: the criterion of likelihood of success

I am reposting here a discussion in moral theory of the just war, from two years ago, of differences between Catholic just war theory and other versions of the theory, notably that of Michael Walzer in his celebrated Just and Unjust Wars. I have been thinking about these differences in reading the commentary on the Lebanon conflict, particularly that of the Catholic law professor Stephen Bainbridge, here, and also in a Tech Central Station article that I can't at this very moment find. (Let me insert as a footnote, for those of you who go to the link, that I do not at all agree with Ed Morrissey's straight-out rejection of proportionality and, really, the core of just war theory, either.)

One important, although hard to describe, difference lies in the point of view of the moralist. Catholic tradition has a sort of "as though seen by the angels in heaven" standpoint to it - I think of it almost as just war theory as a "managerialist" way of approaching conflict, not exactly neutral, but removed from the parties. There is an important intellectual history to this; one which draws upon the Church as the moral arbiter, at least sometimes, among the squabbling princedoms of Christendom. It also, of course, draws upon the Christian conception of a God who is no respecter of persons. I do not mean by this that the Vatican sees itself, as Joseph Bottum, editor of the Catholic journal First Things, wrote last week in the Weekly Standard, as having a foreign policy agenda, one which happens, at this moment, to be deeply interested in placating and finding common ground with Muslims - although certainly that is true. I mean a deeper, theological commitment to just war theory as a managerial theory whose moral standpoint is, in Thomas Nagel's famous phrase, the "view from nowhere." (If you find I am making no sense here, well, you may be right. Did I say this blog is all first draft?)

Walzer presents an alternative version of theory - in some respects different as to the normative criteria of the just war, but perhaps more importantly different with respect to the 'moral point of view'. Not so very different, in one sense, but very different in another. I discuss it below; the brief point is that Walzer, as he once remarked to me at the end of a conference a couple of years ago, is not presenting a "full" theory of justice and war. That, despite the name of his book. It is, rather, a theory of resistance to aggression. It takes, in subtle and not subtle ways, the point of view of the resistor, not that of God in his heavens. Despite being a theory of rights in war, it is not a Kantian theory. It does not take the wholly objective point of view; it seeks to apply objective moral criteria, but seeks to do so from the viewpoint of a particular actor, those who resist aggression. Nowhere is this distinction more important than in Walzer's insistence - as un-Catholic just war a sentiment as one could make, one distinctly alien, for example, to Professor Bainbridge's moral remove - that all things being equal, a political community is not only entitled to resist aggression, it should do so. That is not a Catholic sentiment, not a Christian sentiment. I don't mean here Christian in the sense of turn the other cheek but, rather, Christian in the sense of the Christian seeking to stand in the moral position of a removed God. And it is that aspect of Walzer's thinking that makes it secular, rather than religious - not the fact that he does not invoke God, but the fact that the moral viewpoint never leaves the planet earth.

As I say below, this element of Walzer's thought - I acknowledge that I am reconstructing Walzer's meta-thought to construct my own position here, and don't want to suggest that he would necessarily agree with the 'moral point of view' point - draws us back to three figures who might not otherwise seem very related - Lincoln, and two Frenchmen, Albert Camus and the poet and contemporary and great friend of Camus', Rene Char. (I have said a lot about Char on this blog - I have more or less taken over his terribly expressive phrase for the moral condition of war - "this time of damned algebra," Char called it in his WWII diary as a Resistance fighter, Leaves of Hypnos.) I won't try to explain the relationship with Char here. But Camus insisted, especially in the closing sections of The Rebel as well as in letters in the collection Resistance, Rebellion, and Death, that our moral task was to find a way to be simultaneously of the earth and yet, in some sense, objective - objective in our judgments and yet committed in our human engagements, including our political ones.

As for Lincoln, well, I refer to the Second Inaugural Address, and the most difficult passage in it, in which Lincoln says in nearly the same breath, let us press on to finish the work we are in - the most sanguinary war this country has yet seen - sure in the right, as God gives us to see the right. Lincoln seems here to be seeking to steer a course between moral relativism and moral absolutism. He concedes neither to the proposition that however we see the right, it is how we see it and anyway it is what God gave us; nor does he concede that we should unthinkingly go forward in war to its bloody conclusion, unreflectively. (I once tried to express this better in a Times Literary Supplement review of books on the Second Inaugural Address - not on SSRN, but available from my law school academic site, here.)

What I mean to say, here, and in the reposted comments below, is that there are versions of just war theory that are subtly different, at the metalevel, from Catholic versions of the theory. Not just the doctrinal collapse of Catholic just war theory in the hands, for example, of American bishops into a form of what George Weigel has aptly called, in his marvelous book Tranquillitas Ordinis, functional pacifism - or what Joseph Bottum describes as the Vatican's foreign policy adventures. But different versions of the theory that take seriously rights, while differing on how much the theory should take into account the moral point of view.

I should add, too, that apart from Walzer, the scholar from whom I have most learned about the just war is James Turner Johnson, who, unlike Walzer, puts just war theory firmly within an intellectual and moral tradition rather than, as Walzer does, making it an essentially ahistorical theory of rights (this sounds peculiar, given that Walzer proceeds by historical cases, but the cases are there for casuistry, not as a source of the intellectual history of the doctrine).

The repost:

***
Judith in London asks a good question concerning the traditional criteria of the just war. Where, she asks, does the "likelihood of success" criterion come from?

The traditional criteria - they can be stated and parsed in different ways, of course - are (1) just cause (2) just authority (3) just intent (4) just conduct (5) likelihood of success (6) good outweighing evil consequences. You can state these differently and you can add several more, such as the requirement, popular nowadays in some circles, of a "just peace."

As I've stated them here, however, numbers 5 and 6 are consequences-based criteria. That is, they are concerned not with rights as such, but instead with the consequences that might occur even if one is, indeed, exercising one's moral rights. Christian just war theory has traditionally accepted that the criteria of the just war are "mixed" as between those which are about the enforcement and defense of one's rights and the rights of a political community - just cause, for example - and those which are about taking into account ultimate real world consequences. Sometimes the consequentialist criteria are referred to as "prudential," although that has seemed to me to underplay that they are indeed moral criteria, albeit of a different sort.

Likelihood of success matters, on traditional just war theory, because, it is said, if you can predict reliably in advance that your fight is suicidally destined to lose, then you should not engage in the evils that will inevitably result from the fact of fighting alone. The fight might be a just attempt to vindicate your moral and political and legal rights - but if it is obviously doomed from the start, then you should avoid it even at the price of injustice.

Judith asks why Michael Walzer does not give an account of this in Just and Unjust Wars. In part the answer is that the book is not really concerned with accounting for the traditional criteria of the just war at all; it is a narrower theory than that (in a certain sense, and a wider one than just war theory, in another), a theory of resistance to aggression. More importantly, however, Walzer does not accept this traditional Christian constraint on the attempted vindication of rights. Walzer might say that this is because, as a factual matter, apparently lost causes turn out not to be lost after all - who would have thought, for example, that Churchill would come back to win and, for that matter, Europe was quite convinced that the North could never win the civil war and thought it a matter of moral obligation to intervene to end the killing.

But in fact Walzer means something much stronger in moral rights terms - his argument is not factual in principle, but a matter of basic moral principle. He says, at the opening of chapter 4, p. 51:

"The wrong the aggressor commits is to force men and women to risk theirlives for the sake of their rights .... Groups of citizens respond in differentways to that choice, sometimes surrendering, sometimes fighting, depending onthe 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 preferred moral outcome."

Walzer grants that citizens may decide not to fight, and likelihood of lack of success may be their motivating reason, but he reserves to them the right to fight absolutely and lauds the preference to fight no matter what. Indeed, he goes on to say that it is the "justification and the [moral] preference" for fighting that "account for the most remarkable features of the concept of aggression." (p. 51) (It is hard to believe that Walzer was not thinking in this passage of the failure of the French to fight in the Battle of France.)

Given this kind of language, it seems evident that Walzer does not regard the criterion of likelihood of success - a consequentialist criterion - as having the power to modify how people should act to vindicate rights in the way that the medieval Christian theologians did. Given that Christian theology is not exactly warm to consequentialist arguments much of the time, what might account for the fact that Christian theology accepts it here as against rights-language more than Walzer will allow?

The deepest reason, I believe, has to do with the moral viewpoint from which one views war - the moral place on which one stands to look at war. The Christian fathers, by the nature of their moral place, inevitably see war from the standpoint of God in Heaven, from above, and this "outside" of humanity standpoint makes it much easier for them - altogether curiously, I emphasize - to consider the costs and consequences of war without regard to rights, given that so many innocents in war suffer. It is easy to imagine the angels in heaven simply writing off the right and wrongs of war and instead seeing only the costs of war - calling for an end to the bloodshed as being the most important thing, even if there are indeed rights and wrongs - they, after all, will get sorted out later, in the final judgment of souls. (I am reminded just a little of the great Swiss playwright Friedrich Durrenmatt's 1950s play, An Angel Comes to Babylon.)

Unsurprisingly, this is how Christian theologians of mainstream persuasion tend to see war today - they tend to leave aside the actual reasons for war in order to focus on the costs to innocents and hence rarely find war justified, finding nealry always that it fails that other test of consequences, greater good than evil.

Walzer, by contrast, is in his moral "location," if I can describe it as such, much more like the great secular moralistes, Albert Camus above all, and Rene Char as well, who refuse to depart, as it were, to the heavens, but remain on earth and locate themselves morally in the struggle between right and wrong, good and evil. In that case, the consequentialist considerations about war, so easily visible from the remoteness of heaven, seem much less important than the nearby, concrete causes of war here on earth.Yet we want it both ways - and this is true of Walzer as it is true of the ancient theologians. The differences are in degree - profound differences of degree - but certainly Walzer will not say that consequences are irrelevant, nor do the ancient theologians write off the discourse of rights which is, after all, the natural language of natural law. Far from it; all hands admit it is a mixed theory, seeking to vindicate plural moral goods.

Michael Walzer on just war and the Lebanon conflict

Michael Walzer writes in The New Republic on just war and the Lebanon conflict - addressing both jus ad bellum and jus in bello issues. Here.

Consequentialist or realist theories?

David Luban, in a paper on preventive war that I will discuss directly later (download from SSRN here), characterizes the divide of moral theories of war using the ordinary distinction in ethics between rights based theories, such as Walzer's, and consequentialist theories. One example of a consequentialist theory of jus ad bellum, resort to force moral theory, he observes, is the justification for a no-first-use-of-force rule in the general conception of the UN. Consequentialism - reducing the incidence of war - rather than Walzer's defense of sovereign political rights argument, according to Luban, is the actual moral basis of the UN charter on the use of force. Leaving aside whether Luban is right about that for a later discussion, it seems to me a better way to characterize the debate over moral theories about war as being

• nonmoral, such as what I described as amoral realism.
• consequentialist, including various versions of what I described as moral realism and with varying degrees of realism built in.
• rights based theories of the just war, including both Walzer's theory of self-determination, sovereignty, defense of political community, and resistance to aggression; but also more traditional Christian theories from natural law.
• pacifism and nonviolence, rooted either deontologically (e.g., a command from God), or consequentially, as in a thoroughly realist account of the horrors of any war outweighing anything else.
• the positive law domestic analogy.

I'm now thinking it makes the most sense to key off the traditional division in moral philosophy of consequentialism and rights based theories, and then fit realism into it, rather than sticking with Walzer's debate between realism and just war theory. The category of realism seems to me to be too heterogenous to be very useful in categorizing moral responses to the question of war. It works for Walzer in the context of a more narrowly focused essay, but doesn't seem to me the conceptually comprehensive approach.

Partial Consequentialism (Theory)

Further to what I described earlier as "partial (or parochial) consequentialism," as a form of realism, responding to the question of whether, and under what circumstances, war is morally permissible:

It is a peculiar category, and I might at some point be persuaded to abandon it. However, what it responds to is the view, usually regarded as realist, which says that war is not simply a matter of power or desire; it is not amoral or outside of the realm of morality in that sense. There is a morality at issue in engaging in war (whether the question of resort to force or conduct in war), but that morality is a matter of consequences - and, in particular, the consequences to you and yours. It is not a matter of all the consequences, but rather the consequences to those in whom you have an interest.

Is this actually a moral rather than a merely prudential approach to the question of the permissibility of war? It can be framed as a purely interest-based, prudential account, and in that case would be essentially outside morality. This is the usual way in which it is regarded as "realist" - as about power and interest.

But there is a second way of framing the question of "you and yours" which takes it beyond interest and prudence into a genuinely moral obligation to your own. Which is, I think, how most of us think of it. We do tend to regard ourselves has having particular moral obligations to those who are close to us, part of us, part of our political community, and society, even at the expense of others. If that can be counted as part of morality, then looking solely to the consequences for those relationships and obligations in war, while a "partial," in the sense of "partial to," morality, is a morality nonetheless. It is consequentialist in the sense that it looks to consequences rather than paying attention to rights, but it is concerned with obligations (and in some versions might be concerned with the rights of your political community, while not worrying about the rights of others).

What about this idea of a morality that is partial to you and yours? It is our everyday morality, but, as Peter Railton, among others, has pointed out, it is not accounted for in principle under either utilitarianism or Kantian morality, each of which is "universal" and "impartial" and, hence, as Railton pointed out in his article in Philosophy and Public Affairs, alienated from ordinary human relationships. An ethics which takes account of ordinary human partiality we might call "attachment ethics," and one of the many tasks for such an ethics is to describe when partiality is okay and when, instead, impartiality must apply. And, then, what of this question of partiality and impartiality in ethics and war?

It seems to me that many of the views that we lump together as "realist" would be better described as consequentialist-attachment ethics. At least part of what is treated as prudential interest on a realist account would be better described as communal attachments viewed as genuinely moral obligations - deep enough to cause people to sacrifice their lives and the lives of loved ones for them. Isn't this a better meaning for Hobbes' (and Thucydides') 'necessity of nature' than a purely prudential account? Maybe.

I realize it must seem that I am going very far off the beaten track of just war theory, but the question of what to defend, my community or something broader, and partiality versus impartiality, as a matter of not merely prudence but morality, is more important in war than in most matters, at least drawing on my field experience in human rights conflict monitoring. People don't tend to think of their struggles as mere interest or prudence or even amoral necessity, and I am not inclined to think that in many circumstances they should. For example, when I think of the many aid workers I have known in the field, or myself as a human rights monitor in various conflicts, this question of partiality was central. I write more about this question of impartiality and neutrality in the context of humanitarian relief work in war in an article on humanitarian neutrality and inviolability here, in .pdf format (see especially the last part of the article).

More to follow on this question.

Realism and Consequentialism and Just War (Theory)

Thinking over again my earlier post on how to categorize the just war tradition and its rivals. Traditionally it is divided into realism, just war theory, and pacifism.

I made things more complicated by adding a fourth category, the Positive Law Domestic Analogy, on which either war itself disappears into police action on analogy to a domestic society, or else becomes the exclusive prerogative of a political authority - e.g., the Security Council - that operates as a supreme authority in the question of the use of force analogous to political authority in a settled domestic society.

I also made things more complicated by subdividing realism into an "amoral realism" and a "moral realism"; and also by subdividing the just war category into traditional Christian theology of the just war and Walzer's resistance-grounded, modern secular account. And finally by breaking nonviolence into nonviolence and pacifism.

I am now thinking that although it breaks with how just war theory has traditionally conceived its categories, it would be better to rethink and rename the category of realism. I am beginning to think (I may change my mind about this again, although I have been thinking about this point for several years) that it would be better to regard the realist category as instead consequentialist. Or more exactly, and more complicatedly:

Amoral realism - its all just desire and your power to make it so, without reference at all to morality.

Partial (or paraochial) consequentialism, as a version of realism: Morality is relevant to war, but what matters are the consequences. However, the consequences that matter are those for your side, for your political community alone. This is a moral consideration in the sense that you owe special obligations to your community, rather than to the world at large, and so the consequences that matter are those that affect your community.

Impartial (or universal) consequentialism, as a version of realism: This is just pure consequentialism applied to ethics in war, but taking into account all the consequences for all sides and everyone, impartially and universally. It departs from just war theory in not taking account of rights at all, either rights of political communities, as Walzer means it, or even rights of individuals, either in the question of the resort to force or the question of means and methods of fighting.

A question, of course, is whether partial consequentialism is genuinely a consequentialist theory, or whether it is something else, given that it depends for its partiality on a notion of what you owe to you and yours and not to others.

I will revise this (and maybe throw it out) down the road. But I have never been very satisfied with the account of realism - it always seems to involve too many mixed up strands of moral and nonmoral thinking to be coherent. When Sherman says, "war is hell," it means many, many different things, and realism alone does not capture it. Walzer is right in his discussion of realism to point out that a large amount of bad faith enters the talk of generals on these matters, but if we try to take it seriously, the different moral considerations captured by a single concept, realism, appear to be quite different in origin and implication.

Walzer and Resistance, Take Two (Theory)

Let me try again briefly on the question of Walzer, resistance to aggression, and Christian theology of the just war.

Traditional Christian theology of the just war is a doctrine fundamentally about offering a justification before God for having done things that otherwise violate Christian commandments. And because it justifies what is otherwise an exception to natural law, it is also willing to accept that one might not fight - pace Elshtain's argument that war can be a form of Christian love. Even if the theory of the just war is seen as providing a genuine justification for fighting and not merely an excuse, such as necessity or duress, it is still something short of an obligation to fight.

Walzer's notion of resistance is much, much stronger than that, because it comes out of a different sense, that of the obligation to fight for one's rights and the rights of one's political community. As he says at the beginnng of chapter 4, the "wrong that the aggressor commits is to force men and women to risk their lives for the same of their rights ... Groups of citizens respond in different ways to that choice, sometimes surrendering, sometimes fighting, depending on the moral and material condition 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." (p 51, emphasis added)

It is hard to imagine, that is, the Christian theologian saying as a general matter that "fighting is the morally preferred response." Fighting is permitted, in some circumstances more than others, but "morally preferred"? It is hard to imagine that formulation. (Or is it that hard to imagine? I can actually more easily imagine Augustine or Aquinas saying it, far more than today's American or Anglican bishops, but maybe that is simply because I know, in advance, that they are what George Weigel has called "functional pacifists." Surely it is easy to imagine Niehbur saying exactly this.)

Again, what is the difference? The Christian theologian seems to be saying, under certain circumstances it is permitted - not sinful - to fight. Walzer, however, is instead saying something very strong about the nature of political community, the common life - so strong that he says that the defense of its rights to exist obligates one to fight, if necessary, to protect it. So maybe the difference is less in the view about war than it is a difference about the object of just war theory - individual justification or the political community. (Of course, I am exaggerating the difference here; there is a strong strand of Christian just war theory that also emphasizes the object of just war theory being defense of community. But it seems to me that Walzer has in mind something more narrowly, more secularly focused, on the rights of political communities, than Christian theology does.) Perhaps this is merely to say, no more and no less, that Walzer's theory is not concerned with sin, as such.

I still don't feel I have got this right.

Categories of response to the moral question of war (Theory)

Is it ever morally permissible, and if so under what circumstances and conditions, to engage in war?

The theory of the just war, as found in Walzer's Just and Unjust Wars, or in Christian moral thought, is one response to that question. There are other ways of responding to that question, however, and the short version of that list is as follows:

Realism

Amoral realism - the doctrine that it is morally permissible to engage in war, whenever and however you like, because war lies outside of morality and law altogether, inter arma silent leges. It is a question of desires, glory, gain, whatever moves you and a matter of your power.

Moral realism - the doctrine that it is morally permissible to engage in war, yet war is still governed by morality. The morality that governs war, however, is strictly one of consequences and, moreover, consequences to you and yours. It therefore is not constrained by any rule on when you decide to resort to force or the methods and means of using that force; it is governed solely by your assessment of the consequences to you and your interests, however you define them.

Nonviolence

Complete nonviolence - the doctrine that it is never morally permissible to engage in war, because it is never morally permissible to engage in violence of any kind, whether war or any other kind of violence.

Pacifism - the doctrine that it is never morally permissible to engage in war, specifically, although it might be morally permissible to engage in other kinds of violence, such as the violence or threat of violence used by police to maintain order within a society. Pacifism, as used here, distinguishes between war and certain other forms of violence.

The Just War

The doctrine that it is sometimes morally permissible to engage in war, provided that certain moral criteria are met with respect to the resort to force, and that the means and methods of war used also meet certain moral criteria. The classical criteria are just authority, just cause, just intent, likelihood of success, and last resort. It is a theory of rights, rather than a theory that looks solely to consequences, and this is what distinguishes it in the first place from moral realism - just war theory looks not to consequences first or solely, but instead to the violation of the rights of a political community by aggression (per Walzer). As developed as Christian theology, it as a doctrine of natural law (as distinguished from the doctrine of positive international law discussed below).

The Positive International Law Domestic Analogy

The first three theories are all found in Just and Unjust Wars, although I have separated out different strands within each of realism and nonviolence. The fourth is alluded to by Walzer, but does not play a significant role in his argument. In the years since Just and Unjust Wars was published in 1977, however, and especially since the end of the Cold War, this fourth theory has become (perhaps) the greatest competitor to the tradition of the just war.

It is the doctrine that war, as such, is never morally permissible because positive international law has done away with the category of war between sovereigns and replaced it with police action (even if police action of a war-like kind) to force compliance with international law, on analogy to the enforcement actions of police in a domestic society. (An alternative formulation might say that war is morally permissible only when it is authorized as an enforcement action under positive international law to enforce positive international law as embodied in international organizations such as the UN Security Council, again on analogy to the actions of police in a domestic society.) The point of calling it "positive law" is that it relies upon positive, codified international law as its source of authority; the point of calling it a "domestic analogy" is that it relies upon an analogy with how force is used by police in a domestic society.

In my experience, it is what Western Europeans reach to as a theory about morality and war -essentially, the moral question has been supplanted by a regime of law on analogy to a domestic society - a messy and unsettled law, in many respects, but one in which the moral question drops out in favor of positive law. For that reason, the just war tradition is regarded as a sort of quaint moral theory by most European intellectuals I know - or, more precisely, a dangerous calculus that allows Americans to justify any war they feel like, a rhetorical flourish. This is ironic, in one sense, because the just war tradition is used equally by people on both sides of any debate over war in America - but in European sensibilities, it is deeply worrisome, because it threatens what they see not as a matter of morality, but of positive law, the law of the UN Charter.

In my own writing on just war theory, the book manuscript I am working on, I emphasize the central current debate as being between just war theory and the positive law domestic analogy; I think the debate has shifted in exactly this way since the end of the Cold War.

Other

It is possible to come up with other approaches, and I'll detail some of them in a later post.

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.

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.