The Justice of War: Its Foundations in Ethics and Natural Law 1498590551, 9781498590556

Table of contents :
Dedication
Table of Contents
Introduction
1 A Defense of Just War Theory
2 Normative Ethical Theory I: Preliminary Matters
3 Normative Ethical Theory II: Teleological Theories
4 Normative Ethical Theory III: Deontological Theories
5 A Brief History of Natural Law I: Ancient Doctrine and Theory
6 A Brief History of Natural Law II: The Scholastic Theory
7 A Brief History of Natural Law III: The Modern Theory
8 A Critique of Natural Law
9 Natural Rights
10 A Brief History of Just War Theory
11 Contemporary Just War Theory
12 Ethical Foundations of Just War Theory with Attendant Moral Issues
13 Josiah Royce on the Justice of War
Afterword: Peripheral Matters
Bibliography
Index
About the Author

Citation preview

The Justice of War

The Justice of War Its Foundations in Ethics and Natural Law Richard A. S. Hall

LEXINGTON BOOKS Lanham • Boulder • New York • London

Published by Lexington Books An imprint of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowman.com 6 Tinworth Street, London SE11 5AL Copyright © 2020 by The Rowman & Littlefield Publishing Group, Inc. All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Names: Hall, Richard A. S., 1946- author. Title: The justice of war : its foundations in ethics and natural law / Richard A. S. Hall. Description: Lanham : Lexington Books, 2019 Identifiers: LCCN 2019951222 (print) | ISBN 9781498590556 (cloth) LC record available at https://lccn.loc.gov/2019951222 TM

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992.

To my wife, Louise, who through her persistent urging brought this book to completion.

Table of Contents

Introduction

ix

A Defense of Just War Theory Normative Ethical Theory I: Preliminary Matters Normative Ethical Theory II: Teleological Theories Normative Ethical Theory III: Deontological Theories A Brief History of Natural Law I: Ancient Doctrine and Theory A Brief History of Natural Law II: The Scholastic Theory A Brief History of Natural Law III: The Modern Theory A Critique of Natural Law Natural Rights A Brief History of Just War Theory Contemporary Just War Theory Ethical Foundations of Just War Theory with Attendant Moral Issues 13 Josiah Royce on the Justice of War

1 7 15 29 53 69 77 89 107 123 147

Afterword: Peripheral Matters

227

Bibliography

247

Index

255

About the Author

263

1 2 3 4 5 6 7 8 9 10 11 12

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Introduction

“And ye shall hear of wars and rumors of wars: see that ye be not troubled: for all these things must come to pass, but the end is not yet.” Jesus’ grim prophecy as recorded in the twenty-fourth chapter of Matthew’s Gospel has come to pass. As a species we are sorely beset by wars. To name just a few which have occurred since the Middle Ages: The Hundred Years’ War, The Thirty Years’ War, The French and Indian War (War of the Austrian Succession), the Napoleonic Wars, the two World Wars, the wars in Afghanistan and Iraq. And there is no end in sight. Because wars are so massively destructive of human life and limb, of property and artefacts, and of the flora and fauna of the environment, one feels a moral revulsion to them. Consequently, they have elicited two moral responses: One is that they should be outlawed outright or, barring this, at least conscientiously objected to or not willingly engaged in—this is pacifism. The other is that since some wars are unavoidable, say, in national self-defense, they should observe strict limits to their declaration and execution. That is, they should somehow be morally justified, and in fighting them, combatants ought to strictly abide by stringent moral or humane standards—this is the theory of a just war. Just war theory, then, formalizes attempts to apply ethical standards to the waging of war so as to ensure that it is warranted, to minimize civilian casualties, to prevent unnecessary destruction of and damage to the environment, to restrain the force exercised by combatants, and to secure a just and lasting peace. It has evolved in response to changing political and historical exigencies, and in so doing reflects different philosophical and religious ideas.

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A DEFINITION OF “WAR” Since just war theory is about war, it is appropriate at the outset to have at hand a definition of “war,” at least a provisional one, upon which the application of theories about the justice of war depends. It is important to understand what qualifies as a war so that the theory as to the justice of war can be legitimately applied to it to determine whether it is just. If the action does not so qualify, just war theory does not apply. If, say, it is a crime, the procedures and standards appropriate to policing would then be applicable instead. Moreover, the word “war” is used loosely these days such as in “the war on drugs” or “the war on terror.” These are, at best, metaphoric uses and, at worst, misleading ones which typically result in failed strategies and unclear goals in curtailing the consumption of illicit and dangerous drugs and in weakening and destroying terrorist groups. If, for instance, the war on drugs qualifies as a war, then the deployment of military force to fight it would be appropriate. However, if it does not, then such deployment would be inappropriate and even counterproductive since the job would be more appropriate for other agencies such as the police. If for nothing more than the sake of formulating and implementing workable policies, we should be clear about what conditions must be met for an action to qualify as war. War is traditionally and typically thought of as hostilities occurring between nations or states, or between rival political factions within a single nation such as in civil war where a political faction seeks to wrest power from the ruling regime or separatists seek independence of the parent nation and set up their own autonomous state. Although “nation” and “state” are terms often used interchangeably, or compounded as “nation-state,” a distinction between them ought to be drawn. “Nation” refers to a social group that thinks of itself as a unified people bound together by blood, ethnicity, language, common culture, religion, etc.; it finds its identity and solidarity as a nation in one or another or combination of these factors. “State,” on the other hand, denotes the polity of a nation, that is, the various legal, economic, and political institutions that make up its system of governance. Thomas Paine distinguishes between nation, or what he calls “society,” and state, what he calls “government,” according to their different origins: “Society is produced by our wants, and government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices.” 1 By saying that the function of the state is to restrain, Paine suggests that it has the prerogative of using force which for Max Weber defines a state, that is, “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” 2 Properly speaking, then, a state of war exists only between states, or between a state and a rival political faction within it as in a civil war. Moreover, a state alone has the authority to declare and wage war.

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What then is war? Brian Orend defines “war” as “an actual, intentional and widespread armed conflict between political communities.” “Actual” means the opposite of “cold war”; “intentional” refers to the deliberate intention of those authorized to declare and wage war (not an accidental border scuffle, for example); “widespread” means, among other things, the mobilization of massive forces. 3 Douglas Lackey adds to this definition by stipulating that in war the force used is controlled “by persons organized in a functioning chain of command.” 4 Political communities are states; revolutionary or separatist movements within them aspiring to the status of statehood are incipient states. According to Orend, wars are fundamentally about who has the authority or power to govern a nation—“all warfare is precisely, and ultimately, about governance.” 5 This is congruent with Carl von Clausewitz’s definition of “war” as “merely the continuation of policy by other means.” 6 Orend, moreover, amends Clausewitz by maintaining that war goes deeper than merely the continuation of policy: it is “about the very thing which creates policy, i.e., governance itself.” 7 What, though, might it mean to say that “all warfare is precisely, and ultimately, about governance” which is a political objective? It could mean the usurpation of a vanquished nation’s government by a puppet government compelled to execute the will of the conquering nation as in the case of the Vichy Government installed by the Germans in France during the Second World War. Or it might mean the annexation and occupation of part of a nation’s territory as occurred when the United States annexed and occupied the Philippines during the Spanish American War. Or it might be the provision of military or economic support for a rebel force aiming to achieve independence from a colonial government as when the United States intervened in Cuba during that same war. In neither of these cases did the United States seek to usurp the power in Madrid, but only to restrict Spain’s territorial sovereignty and curtail her imperial ambitions. Whether the objective of military force is to usurp a national government, or to limit its sovereignty, or to support revolutionaries seeking independence from it, it is nevertheless about who has the prerogative to rule, an issue of governance. War, then, is essentially political in nature, a contest over who has the power and right to govern. If so, then technically speaking a state of war can exist only between states, not nations, since war is not so much a conflict between the peoples constituting nations but a conflict over statecraft or who should govern them. According to the above definitions of “war,” then, to qualify as a war a conflict must, ideally, meet all the following criteria: (1) it must be an armed conflict between political communities; (2) it must be duly authorized by those governmental officials within a state vested with the authority to declare war; (3) it must involve the mobilization of massive forces on both sides of the conflict; (4) the personnel involved must be organized in a functioning chain of command; (5) it must aim ultimately at the political

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objective of who should rightfully govern. However, some historical conflicts classified as wars meet only some of these criteria and so might be designated as bellicose conflicts rather than as full-fledged wars. The above definition of “war” excludes some conflicts conventionally referred to as wars. One such conflict is the so-called “war on drugs.” This is highly misleading. The enemy here is not pharmaceuticals, many of which like aspirin are benign and beneficial. Rather, the enemy is the cartels that manufacture and distribute illicit drugs like heroin. If so, then the conflict between governments and drug lords does not qualify as a genuine war because it meets none of the five criteria above. Consequently, the manufacture and distribution of illicit drugs is not an act of war but a crime appropriately addressed by law enforcement, not by the armed forces. A second conflict excluded by the above definition of “war” is the so-called “war on terror.” This, by the way, is a misnomer since terror is a state of mind afflicting people which is the purpose and result of terrorist attacks. The enemy in this case is not terror as such but its perpetrators. Thus there is a global and ongoing conflict occurring between the Western nations and terrorist organizations like Al Qaeda, the Taliban, ISIS and their affiliates and offshoots. However, this conflict does not qualify as a bona fide war because it fails to meet one or another of the above criteria that a war must meet. More particularly, it fails to meet the first criterion, namely, that it be an armed conflict between political communities like states. The Western nations in this conflict are political communities but not the various terrorist organizations since they act independently of and not in the name of any state or nation. The apparent exception is ISIS, the self-proclaimed Islamic State of Iraq and the Levant that thought itself a caliphate. But it was not recognized as such by the Western nations, and now, having been decimated, it has been reduced to just another terrorist organization. Nor does the conflict between the West and various terrorist organizations meet the second criterion, namely, that it be authorized by a duly constituted political authority. Certainly that authority exists on the side of the Western nations, but not on the side of the terrorists since they are not formally associated with any state. And as for the third criterion, that the conflict involves the mobilization of massive forces on both sides of the conflict, only the West has done this to a certain degree, but not the ragtag collection of terrorist groups that fight for different causes in an uncoordinated manner and with relatively small groups of individuals. The Western nations and some terrorist groups like ISIS have enlisted in the fight personnel organized in a functioning chain of command, the fourth criterion, but this is not the case with all terrorists such as Timothy McVeigh and the Chechen brothers, Dzhokhar Tsarnaev and Tamerlan Tsarnaev, lone wolves who engaged in terrorist acts alone and on their own initiative.

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The conflict, then, between Western nations on the one hand and terrorists on the other is not symmetrical, as are conventional conflicts like that between the Allied and Axis Powers in the Second World War, because only one side meets the criteria for a conflict’s being considered a war. Rather these conflicts are between bona fide nations and stateless groups and individuals, international in scope, which do not fight under any particular flag but embed themselves parasitically in nations. Finally, as to the fifth criterion that a conflict must meet to be a war, to wit, it must aim ultimately at the political objective of a change in governance. This means that to qualify as an act of war, a terrorist act must have as its goal the political one of a forced change in the governance of a nation, that is, coerced regime change. For example, Timothy McVeigh’s bombing at the Alfred P. Murrah Federal Building in Oklahoma City was a terrorist act of war since it targeted federal officials with the political objective of inciting a rebellion against the United States’ government. Alternatively, if McVeigh had decided instead to blow up a shopping mall for no other reason than the pleasure of killing people, then his act would not have been an act of war since its aim was not political; rather, it would have been nothing other than a crime. Similarly, Al Qaeda’s 9/11 attack on the Pentagon and its aborted attack on the Capitol, though not the attack on the World Trade Center, were acts both of terrorism and of war because of their political targets. By contrast, the Chechen brothers’ bombing at the Boston Marathon, though a terrorist act, was not an act of war since it was neither directed against nor threatened the nation’s system of governance. Terrorist acts lacking a political objective, i.e., a change in governance, are crimes. The proper response to them is not the mustering of armies but deploying the police, both national police forces and INTERPOL. Only those terrorist acts that are acts of war aiming at regime change merit a military response; those that are not merit more appropriately a police response. To respond militarily to just any terrorist act, without discriminating between those that are genuine acts of war and those that are not, risks waging a war that might prove ineffectual at best and disastrous at worst. It should be kept in mind that meeting with military force terrorist acts which are not acts of war but simply crimes, however violent, is an illegitimate intrusion of military authority in civilian affairs, a dangerous precedent to set in a democracy. BELLIGERENT STATUS Related to the question as to what qualifies as a war is the question as to who is legally entitled or “competent” to fight in it as a combatant or belligerent. According to the Protocols of the Geneva Conventions of 1949, they are, “Members of the armed forces of a Party to a conflict (other than medical

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personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.” Additionally, combatants are entitled to be treated as prisoners of war upon capture: “While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war.” 8 Combatants, then, in the terminology of international law, enjoy “belligerent status.” Combatants include, other than personnel in the armed forces, members of militias or volunteer corps joining with the armed forces. Members of organized resistance movements are also included if they, among other requirements, are under the command of competent officers and conform to the laws of war (jus in Bello). By contrast, unlawful combatants, those lacking belligerent status, are ones who fight but in violation of the Geneva Protocols as specified above. Such include the following: those who had belligerent status but have lost it because of their violating the laws of war, e.g., deliberately targeting civilians for attack, feigning surrender, killing surrendering enemy combatants; spies, mercenaries, children under arms, and civilians who fight but are not members of a volunteer corps or organized resistance group. However, civilians who spontaneously resist with arms the sudden attack of an invading army would have belligerent status conferred by the right of self-defense (jus ad bellum). If it is doubtful whether captured personnel previously engaged in fighting deserve belligerent status, they should be held as prisoners of war pending their cases being heard by a “competent tribunal.” If it is determined that they are ineligible for belligerent status, they should be tried and punished under civilian law. To illustrate the difference between combatants who have belligerent status and those who do not, take the case of civil war or a revolution against a government. According to the Protocols of the Geneva Conventions (1974–1977), where the conflict is an internal one between a government and “dissident armed forces or other organized groups” which are “under responsible command, exercise such control over part of its [the country’s] territory as to enable them to carry out sustained and concerted military operations,” 9 then the dissident group qualifies for belligerent status and the conflict qualifies as a civil war. However, in “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, and other acts of a similar nature,” belligerent status is withheld from their perpetrators and these acts fail to qualify as acts of war. According to these criteria, then, says Lackey: The American Confederacy in 1860, by virtue of its military organization and control of territory, qualifies for belligerent status, whereas the Symbionese

Introduction

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Liberation Army, which controlled no territory, and the Newark rioters of 1967, who obeyed no commands, fail to qualify. By this standard, the American Civil War was war but the Patty Hearst kidnapping was a crime, verdicts with which most people would agree. 10

Thus, to qualify for belligerent status, revolutionaries or combatants arrayed against the state in a civil war must be hierarchically organized, and hold territory enabling them to continually undertake long-term and unified military operations. However, there are problems with both the application and adequacy of the conditions for assigning belligerent status as specified in the Geneva Protocols. First, with respect to their application, there is the difficulty of determining who in particular among combatants are eligible for belligerent status and who are not. One cannot be both a lawful and unlawful combatant at the same time. Thus, the British Manual of Military Law stipulates: Both these classes [armed forces and peaceful population] have distinct privilege, duties, and disabilities. It is one of the purposes of the laws of war to ensure that an individual must definitely choose to belong to one class or the other, and shall not be permitted to enjoy the privileges of both; in particular that an individual shall not be allowed to kill or wound members of the army of the opposed nation and subsequently, if captured or in danger of life, pretend to be a peaceful citizen. 11

During some conflicts people live a double life as both civilians and as guerillas, members of resistant groups, partisans, or revolutionaries in clear violation of the British Manual. And then there is the case of criminals who commit crimes while posing as legitimate combatants. For example, was Pancho Villa a true revolutionary or a mere brigand? Second, with respect to their adequacy, the Geneva Protocols are perhaps too stringent. Lackey notes, for example, that the resistance movements in France and Czechoslovakia during the Second World War hardly exercised such control over part of their country’s territory as to enable them to carry out sustained and concerted military operations, yet their militant actions could hardly be disqualified as legitimate acts of defensive warfare because they failed to meet that condition of belligerency. Moreover, it might happen that a rebel group engaged in a civil war against a state might hold territory one day but lose it another, as has been the case with the Free Syrian Army in its conflict with Bashar al-Assad’s regime during Syria’s Civil War that began in 2011. Yet one could hardly deny it belligerent status because of its shifting control of territory. Territorial possession is too restrictive a condition for conferring belligerent status on guerrillas, partisans, and revolutionaries.

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The Geneva Protocols further stipulate that to qualify for “belligerent status,” the agents must engage in “sustained and concerted military operations.” 12 However, doubts may be raised about the adequacy of this condition. For some revolutionary groups, instead of engaging in such operations, sporadically commit uncoordinated terrorist acts against government buildings and functionaries. One such group was the National Liberation Front (NLF) in Vietnam which assassinated village chiefs and other allies of the Saigon government. It would be overly precious to deny the NLF belligerent status, and so competency for war, because its members were not engaged in “sustained and concerted military operations.” But what of terrorists like jihadists? Do they qualify for belligerent status meaning that, among other things, if captured they should be treated as prisoners of war with their attendant rights? According to stipulations laid down in the Geneva Protocols, they do not. One stipulation is that to qualify as belligerents the combatants must either be members of a national armed force or of a group officially recognized by and allied with it. However, terrorists typically operate across national boundaries and are not, at least officially, personnel in any nation’s army or based solely in any one nation. Another stipulation is that belligerent status may be withheld if the combatants violate the laws of war such as those proscribing the deliberate targeting of civilians for attack. Obviously, terrorists routinely violate these laws since the targeting of civilians is part of their modus operandi. Terrorists are nothing more than international outlaws whose crimes should be met with policing, not military action. An alternative and less restrictive condition for belligerent status might be suggested, namely, that the combatants have the support of the populace they represent in the fight. Public support confers upon them legitimacy as bona fide combatants with their associated rights, just as it confers legitimacy on regular soldiers who act in their military capacity at the behest of the civilian population: “But any significant degree of popular support entitles the guerrillas [if captured] to the benevolent quarantine customarily offered prisoners of war (unless they are guilty of specific act of assassination or sabotage, for which soldiers, too, can be punished.)” It is this public support, not territorial gains, that accords guerrillas “belligerent recognition.” Usually, says Michael Walzer: The [belligerent] recognition follows upon the establishment of a secure territorial base by the rebels. For then they actually function like a government, taking on responsibility for the people who live on the land they control. But this assumes a conventional or near-conventional war. In the case of a guerrilla struggle, we may have to describe the appropriate relation between the rebels and the people differently: it is not when the guerillas look after the people that they acquire war rights, but when the people “look after” the guerrillas. 13

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Making public support for their cause a condition for elevating guerrillas and the like to the status of belligerents has implications for counter-insurgency against them. A principle of counter-insurgent operations is that guerrillas ought to be separated as much as possible from the general civilian population so as to deprive them of the protection that it would afford and to give civilians immunity from combat. However, if this separation cannot be made, then for moral (as well as strategic) reasons the anti-guerrilla counter-insurgency should not be undertaken. For then the war against the guerrillas, who oftentimes are indistinguishable from and even identical with civilians, would be a war against an entire people, and the distinction between civilian and combatant would become moot. Walzer succinctly sums up the problem as follows: The war [of counter-insurgency] cannot be won, and it should not be won. It cannot be won, because the only available strategy involves a war against civilians, and it should not be won, because the degree of civilian support that rules out alternative strategies also makes the guerrillas the legitimate rulers of the country. The struggle against them is an unjust struggle as well as one that can only be carried on unjustly. Fought by foreigners, it is a war of aggression; if by a local regime alone, it is an act of tyranny. The position of the antiguerrilla forces has become doubly untenable. 14

It is important to be clear as to who should be given belligerent status because it determines, among other things, how terrorists should be treated upon capture. If they are deemed “belligerent,” then it would be legitimate to incarcerate them as prisoners of war and have military tribunals determine their fate. However, if they are not deemed so, then they are criminals who should be prosecuted under criminal law and whose cases should be heard in civilian courts. This is a matter of legal justice. However, that terrorists are not legitimate combatants and that the conflict between them and national states does not qualify as a war in no way diminishes the enormity of their crimes or extenuates their guilt. As a wholesale and nondiscriminatory attack on everyone within a political community, not excluding civilians who typically are specifically targeted, acts of terrorism are an “abomination” in the biblical and so strongest sense of that term. As Walzer says, “In its modern manifestations, terror is the totalitarian form of war and politics. It shatters the war convention and political code. It breaks across moral limits beyond which no further limitation seems possible, for within the categories of civilian and citizen, there isn’t any smaller group for which immunity might be claimed.” 15 Acts of terror are nothing less than mass murder and ought to be dealt with accordingly.

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NOTES 1. Thomas Paine, Common Sense, in The Writings of Thomas Paine, ed. Moncure Daniel Conway (New York: G. P. Putnam’s Sons, 1894), 1: 69. 2. Max Weber, Politics as a Vocation, in Max Weber: Essays in Sociology, ed. C. Wright Mills, trans. H. H. Gerth (New York: Oxford University Press, 1946), 4. 3. Brian Orend, The Morality of War (Peterborough, ON: Broadview Press, 2006), 2, 3. 4. Douglas Lackey, The Ethics of War and Peace (Englewood Cliffs, NJ: Prentice Hall, 1989), 30. 5. Orend, Morality of War, 3. 6. Karl von Clausewitz, On War, ed. Michael Howard, trans. Peter Paret (Princeton, NJ: Princeton University Press, 1976), 87. 7. Orend, Morality of War, 3. 8. International Committee of the Red Cross, Geneva Conventions of 1949, Protocol 1, Articles 43, 44. https://ihl-databases.icrc.org/ihl/WebART/470-750053?OpenDocument. 9. Ibid., Protocol II, Article 1. 10. Lackey, Ethics of War and Peace, 30–31. 11. War Office, Manual of Military Law (London: His Majesty’s Stationery Office, 1914), 238. https://babel.hathitrust.org/cgi/pt?id=mdp.39015031059614;view=1up;seq=11 12. Lackey, Ethics of War and Peace, 31. 13. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, Inc., Publishers, 1977), 185, n. 185–86. 14. Ibid., 195–96. 15. Ibid., 203.

Chapter One

A Defense of Just War Theory

Right away war ineluctably confronts us with a moral dilemma: On the one hand, war results in the wanton killing of masses of people as well as the mass destruction of property and the environment, all proscribed by virtually every moral code. On the other hand, a people if attacked by an external or internal power apparently have the right to defend themselves by retaliating in kind—kill or be killed. War invariably confronts its combatants with a variety of moral issues to be resolved, not unthinkingly or emotionally, but rationally, wisely and—above all—humanely. Just war theory provides an escape from the above dilemma and the means of resolving the moral issues raised by the conduct of war. Just war theory is one of three competing philosophical traditions informing discussions of ethics and war, the other two being realism and pacifism. I shall begin with a critique of realism, the default position of many national leaders. Realism maintains that morality has nothing to do with the conduct of foreign policy and warfare. It is epitomized in Carl von Clausewitz’s remark, “War is an act of force to compel our enemy to do our will. . . . Force—that is, physical force, for moral force has no existence save as expressed in the state and the law. . . . To introduce the principle of moderation in the theory of war itself would always lead to logical absurdity.” 1 Realists dismiss “moral foreign policy” and “moral warfare” as oxymorons. Realism is a form of realpolitik insisting that a nation’s sole duty in war, as in all its foreign dealings, is to survive and prevail. All other considerations, such as moral scruples, are not only irrelevant but counterproductive as well. Realists conceive of nations as existing in a state of nature wherein war is justified if the national self-interest such as security demands it, and that might makes right. Politics has nothing to do with ethics. Realists are a varied group which spans 1

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history from the ancient world to the modern. They include such figures as Thucydides, Niccolò Machiavelli, and Thomas Hobbes, and more recently Hans Morgenthau, George Kennan, Reinhold Niebuhr, Henry Kissinger, and Kenneth Waltz. A distinction, though, needs to be drawn between descriptive and prescriptive realism. Descriptive realism is an empirical theory maintaining that nations in fact do not behave morally and are constitutionally incapable of doing so. Though despite the realists’ claim that they do not behave morally, it does not follow that they cannot do so. Nations are necessitated to behaving amorally in a state of nature; to think of them as possibly behaving otherwise is a category mistake—it is tantamount to applying moral codes to the behavior of animals hunting for prey or competing for territory in the wild. Nations cannot be expected to abide by the same codes of conduct that ought to govern the behavior of individual persons and survive. 2 Hobbes goes so far as to argue that morality is not even possible in the “dog-eat-dog” world that is the state of nature. Morality can emerge only when people leave the state of nature and compact together to form a civil society. Prescriptive realism, by contrast, is a normative theory independent of the empirical claim that nations are incapable of behaving morally. It simply stipulates that a nation ought, for prudential reasons, to act amorally in order to advance its best interests, otherwise it might become easy prey for other nations lacking moral scruples. More particularly, if victory is the aim of war, then all means should be used to achieve it—it would be at most “immoral” and at least imprudent not to do so. This is the doctrine of “military necessity” which was used to justify dropping the atomic bombs on Hiroshima and Nagasaki and lay behind Sherman’s scorched-earth policy during the American Civil War. It should be noted, though, that prescriptive realism is incompatible with descriptive. It makes no sense to say that we ought to do what we are incapable of doing such as demanding that the wolf show compassion for the lamb it is about to kill. Obligation presupposes the ability to meet it. Thus, a prescriptive realist cannot logically be a descriptive one, and a descriptive realist need not be a prescriptive one. Indeed, in stipulating that nations ought to pursue their interests amorally, the prescriptive realist is denying the truth of descriptive realism by presupposing that nations do have the capacity to act either morally or not and that they should choose not to do so. However, realism in both its forms is objectionable on several grounds. To begin with descriptive: That nations are incapable of acting morally is an empirical claim and as such requires evidence in its defense. It may be true from an historical perspective that nations so far have generally not behaved morally, but this does not mean that they are incapable of doing so in the future. Moreover, many, if not most nations do conduct themselves at least

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on a minimal moral level by honoring promises in the form of treaties and covenants, by committing themselves to alliances and aiding allies under attack, and by intervening in a nation’s affairs on humanitarian grounds to curb genocide and other crimes against humanity, or to provide relief after natural disasters. As for prescriptive realism, this is objectionable for a variety of reasons, foremost among them is its manifold inconsistencies. To begin with, it is itself a covert ethical theory. In maintaining that morality has no place in foreign policy and war, realists have taken a position vis-à-vis the limits of ethics. In defending that position, which they must to qualify as rational, the burden of proof is on them to explain exactly why ethical considerations should be excluded from decisions relating to these political areas. In so doing they are necessarily engaged in the meta-ethical activity of talking about ethics with respect to its limitations, which qualifies as doing ethics. And if in their defense they cite the obligation of leaders to promote the interests of their citizens to whom they are beholden, they are appealing tacitly to utilitarianism, a bona fide normative ethical theory. Prescriptive realists, then, though marching under the banner of realpolitik, show their true colors as utilitarians at heart! Thus, they cannot escape, try as they may, the necessity of taking a meta-ethical position of sorts in delimiting the domain of ethics, and of committing themselves to the utilitarian theory of ethics in their advocacy of politicians’ promoting the public interest at all costs. Second, even the most hard-nosed realists would presumably acknowledge what Douglas P. Lackey calls “salient equilibria,” 3 commonly accepted conventions that minimize the death and destruction of war. They would prudentially agree that treaties should be kept (at least provisionally), and allow that humanitarian aid should be delivered when feasible to relieve distress. In doing so, realists are tacitly maintaining that nations do have moral responsibilities towards others, however minimal they may be, and so are not entirely excluding moral considerations from the domain of realpolitik. And if realists feel even the slightest compunction at ignoring or excusing (in the name of realpolitik) actions mala in se, like the intentional slaughter of innocent civilians or the use of biological and chemical weapons, at least in their hearts they are tacitly conceding that war necessarily has a moral dimension—to deny it is to risk being haunted by it. Third, even the language used to describe war, language used by realists themselves, is inescapably normative. Michael Walzer picks out as examples “aggression, self-defense, appeasement, cruelty, ruthlessness, atrocity, massacre,” which are implicitly moral terms. Additional examples are “war crimes” and “crimes against humanity,” which are also legal terms. Walzer assumes (and correctly, I believe) “that we really do act within a moral world; that particular decisions really are difficult, problematic, agonizing,

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and that this has to do with the structure of that world; that language reflects the moral world and gives us access to it, and finally that our understanding of the moral vocabulary is sufficiently common and stable so that shared judgments are possible.” 4 Even to declare that combatants did not die in vain is to invoke a moral end; and if that cannot be said, those blamable for a war that turned into a debacle are brought to book in the name of justice. Apart from the above inconsistencies, prescriptive realism is objectionable on other grounds. Nations, especially liberal democracies, are already anti-realist, at least on principle, in their moral stance. If they subscribe to a constitutionally mandated Bill of Rights, as does the United States, or to the United Nations’ Universal Declaration of Human Rights, as do liberal democracies, they are committed to the moral ideals enshrined therein. Thus to act as the realist prescribes, such a nation would be abandoning the very ideals upon which its political identity depends and so lose its integrity and its soul. A nation whose sole raison d’être is survival at all costs in the struggle for political existence—moral precepts be damned—and whose only commitment is to getting and spending, thereby laying waste its moral powers, would lose its self-respect and moral authority and, ironically, put its own survival at risk by alienating and losing the trust and support of its citizenry still committed to those foundational ideals. Another objection to the realist position is that it greatly exaggerates the struggle for existence in which nations are supposedly locked; in other words, the state of nature in which nations exist is not that savage and lawless after all. Nations are hedged in by all manner of treaties, covenants, and alliances, and are restrained by the hand of international law. A rogue nation like North Korea or Iran is subject to economic sanctions if it crosses a legal or moral line. Though there is not as yet a comity of nations linked together in a world federation as envisioned by Gottfried Wilhelm Leibniz, Immanuel Kant, and Woodrow Wilson, they are hardly in Hobbes’ absolutely lawless state of nature. Moreover, war itself, as paradoxical as it may seem, far from quashing them gives scope for the exercise and strengthening of moral virtues such as loyalty and courage—as hellish as it is, war is a theater for displaying moral heroism, though this is merely one of the few redeeming features of war and certainly not a justification. Echoing Kant, Walzer states, “in the context of a terrible coerciveness, soldiers most clearly assert their freedom when they obey the moral law,” 5 though there is every temptation in the name of expedience or convenience to disobey it. Finally, realism is vulnerable to a reductio ad absurdum. If a nation’s sole legitimate aim in its dealings with other nations is its own survival, then no moral restraint would prevent a superpower from pre-emptively attacking a weaker nation simply because of a perceived threat to its existence. Realism as an international policy, far from furthering the interests of nations, would

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threaten them with the ever-present possibility of war. Realism then would foment war. On the opposite side of the spectrum of discussions about war and peace is pacifism. Contrary to realism, pacifism avers that public policy cannot escape the dictates of morality; politics for it is a branch of ethics. Since war necessitates the killing of people, proscribed by virtually all moral codes, war of any kind is always and everywhere morally wrong and so must be stopped. Pacifism, though morally admirable, is simply not practicable and negates the indefeasible right of a people to defend itself against unwarranted aggression. Reinhold Niebuhr realized this when he rejected his earlier pacifism by defending the necessity of waging a just war against monstrous evil as represented by the Third Reich. However, though pacifism is far from a feasible stance for a nation to take, it is so for individuals whose religion demands it such as Quakers and Mennonites. Both realism and pacifism are untenable: realism, because of its inconsistencies, its underestimating the capacity of nations to act morally, its ignoring the fact that nations have adhered to certain moral norms, however minimal; pacifism, because of its naiveté concerning the human capacity for evil and its impracticality. Midway between these extremes is just war theory. It agrees with pacifism that foreign policy cannot be divorced from ethics, and with realism that war is sometimes a terrible necessity. It affirms that some wars can be justified on moral grounds and not merely on prudential or expediential ones. It appeals to normative ethical theory, and applies standards derived from it to the conduct of war so as to minimize harm to civilians, prevent unnecessary damage to property and the environment, and restrain violence against combatants. It understands that the battlefield is bound by a moral horizon. Just war theory, though not unproblematic, is more defensible than either realism or pacifism. Moreover, according to James Turner Johnson, the present time seems propitious for developing and implementing an adequate just war theory based on universally shared moral standards in the global society of the twenty-first century: for the first time since the Middle Ages there is a rudimentary international community that is universal in membership. This suggests that a universal value system is not so far off as it was throughout the intervening centuries. We are now at a good point in history to try again the limitation of war by restraints based in ideological [ethical] standards, with the hope and intent that a new and just war doctrine can result. 6

At the outset, though, a distinction ought to be made between the terms “just war doctrine” and “just war theory.” The term “just war doctrine” refers to those unsystematized reflections on the morality of war scattered in the philosophical and theological literature of the ancient world. The term “just war theory” incorporates the ideas of just war doctrine and both develops and

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systematizes them. Just war theory as such first emerges in the thirteenth century with Thomas Aquinas, and continues into the seventeenth century with Hugo Grotius and Samuel von Pufendorf among others. Lackey notes that the term “just war theory” is something of a misnomer, since justice is only one of several primary moral concepts, e.g., natural law, human rights, and the public good, all of which must be considered in a complete moral evaluation of war. 7 Perhaps, though, “just war” is not a misnomer after all. The term “justice” may be used synecdochically to refer to any or all moral concepts so that the term “just” in “just war theory” could be understood in this broader sense. Given that the justice of war has to do with the moral justification of war and moral restraints on its conduct, it necessarily presupposes certain normative ethical theories of which it is the expression and practical application. It is to these I shall now turn. NOTES 1. Karl von Clausewitz On War, trans. Michael Howard and Peter Paret (Princeton, NJ: Princeton University Press, 1976), 75, 76. 2. Reinhold Niebuhr, in his Moral Man and Immoral Society: A Study in Ethics and Politics, contends that the moral precepts that ought to govern one’s private life cannot apply to nations in their international life. 3. Brian Orend, Michael Walzer on War and Justice (Montreal: McGill-Queen’s University Press, 2000), 68. 4. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, Inc., Publishers, 1977), 3, 20. 5. Ibid., 206. In asserting that “soldiers most clearly assert their freedom when they obey the moral law,” Walzer is iterating Kant’s definition of “freedom” as obedience to the moral law. See the section on Kant in chapter 4. 6. James Turner Johnson, Ideology, Reason, and the Limitations of War: Religious and Secular Conceptions, 1200-1740 (Princeton, NJ: Princeton University Press, 1975), 274. 7. Douglas P. Lackey, The Ethics of War and Peace (Englewood Cliffs, NJ: Prentice Hall, 1989), 28.

Chapter Two

Normative Ethical Theory I Preliminary Matters

Preliminary to discussing the ethical theories presupposed by and justifying just war theory, it is necessary to come to some understanding as to what the discipline of ethics is; its differentiation from the cognate fields of morality and law; the distinction between meta-ethics and normative ethics, and between theoretical and practical ethics; and, finally, the evasion of ethics by moral relativism and subjectivism. ETHICS AND MORALITY Consider first the meanings of the cognate and often interchangeable terms “morality,” “ethics,” and “moral philosophy.” The term “morality” is derived from the Latin “moralis,” meaning “moral,” which in turn originated in the Latin “mos/moris,” which means, among other things, “custom, practice, law,” and in its plural form of “mores” means “behavior, character, morals.” As its etymology implies, “morality” refers most broadly to the totality of human relationships. More particularly, it is the entire system of laws, principles, rules, and values by which we regulate our individual and social lives and conduct. It specifies our duties or obligations to others and to society at large, prescribes standards of right and wrong conduct, and reflects society’s understanding of the nature of good and evil. Some of these principles and values are enshrined in the moral codes of the world’s great religions, such as the Decalogue (Ten Commandments) common to both Judaism and Christianity, or in the codes of civil law found in any civilized society, such as the Constitutional Law of the United States and 7

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the Common Law of Great Britain. They are embodied in the treaties and covenants made by nations, in the body of international law, and institutionalized in the United Nations and the International Court of Justice in The Hague. Others, however, are so fundamental and pervasive in our thinking and living that they hardly need to be formalized in any code. Such is the principle of fairness. The youngest children, as soon as they are verbal, are quite capable of understanding and exclaiming, “It’s not fair!” It is almost as if certain moral judgments were innate in or imprinted on our minds from birth. Morality, then, is fundamentally a social system wherein we find ourselves. It originates in and is necessitated by society which enjoins responsibilities and obligations on its members. None can escape its domain, because, as Aristotle long ago observed, human beings are by nature gregarious: “So it is manifest that the city is among the things that exist by nature, that the human being is by nature a political animal, and that anyone who is cityless by nature and not by chance is either of a depraved sort or better than a human being.” 1 We are inextricably bound up in what Joseph Butler, an eighteenth-century Anglican bishop and moral philosopher, called the “moral institution” of civic life, that is, “a moral institution of government, in the strictest sense moral, visibly established and begun in nature.” 2 Jonathan Edwards, America’s premier philosopher and theologian, declared, “Moral agents are social; affairs of morality are affairs of society.” 3 The moral realm is thoroughly social with respect to its origins, functions, and sanctions: Its laws and values originate and abide in society; among its principal functions is to promote social cohesion, stability, peace, and prosperity; the infraction or flouting of moral laws and values can bring into play sanctions enforced by public opinion and civil codes. The shipwrecked Robinson Crusoe was outside this moral milieu until, of course, he met Friday, whereupon was created a society of two members. The term “ethics” is derived from the Greek “ethos,” meaning variously “customs,” “habit,” “character.” Ethics, or moral philosophy, though, belonging to the moral institution of life, is a step removed from morality. It takes within its purview all the elements of morality, i.e., moral laws, principles, values, with the aim of reflecting on them critically: specifically, establishing criteria for sound moral judgments, justifying rationally our moral principles; and arbitrating disputes over moral issues. According to A. I. Melden, “The history of moral philosophy can be summed up as the history of the attempt of philosophers to clarify the conditions and criteria of moral reasonableness, of that reasonableness in conduct and attitudes that distinguishes the moral person, in the best sense of that term, from the non-moral or immoral person.” 4 Incidentally, something of the etymologies of “morality” and “ethics” is reflected in their current meanings. “Ethics” still connotes

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character, and “morality” customs, and both refer ultimately to human character and behavior. Though “ethics” and “moral philosophy” are often used synonymously, “moral philosophy” can also mean something other than “ethics.” It is the old term, having currency well into the eighteenth century, for all that is referred to today as the social sciences, viz., history, psychology, sociology, anthropology, political science, and economics, as distinct from the natural sciences, viz., mathematics, astronomy, physics, chemistry, and biology, which were earlier referred to as “natural philosophy.” However, here “moral philosophy” is to be understood as a synonym for “ethics.” It should be noted that theorists as to the justice of war up through the eighteenth century would have been thought of as engaging in “moral philosophy” in both its meanings, narrowly as ethics and more broadly as the study of human nature. MORALITY AND LAW The term “law” is ambiguous. Most simply it means “precept or principle.” In referring to the precepts or principles of morality, it is qualified as “moral law” or “natural law.” In referring to those statutes or regulations designed, among other things, to regulate commerce and the transfer of property, to protect civil and human rights, and to promote the public safety, and which are made by legislatures, interpreted by courts, and enforced by police, it is “positive” or “statutory” law, which may be further qualified as “civil,” “criminal,” “common,” or “international.” 5 But “law” has a quite different meaning when it refers to statistically determined regularities in nature, in which case it is qualified as “physical law” or “natural law,” such as Newton’s Laws of Motion and Boyle’s Law of Gases. Now there is a fundamental difference between laws dictated by society and physical laws discovered in nature. Moral and statutory laws are purely prescriptive; they prescribe what ought to be done. By contrast, physical or natural laws are purely descriptive; they simply describe what is the case. Human laws presuppose normative judgments or judgments of value, and carry sanctions for their violation; the laws of nature do not. There is, moreover, a special category of law designated as “natural law” (also referred to misleadingly as “law of nature”) used as a synonym for “moral law.” This conflates both the descriptive and prescriptive meanings of “law” by both describing what is in fact the case and prescribing what ought to be, though natural law, in its prescriptive sense, is sanctioned by no human authority but typically by divine. I shall here leave the topic of natural law for a subsequent chapter. My concern here is with the distinction between the moral law, as embodied in moral codes of conduct, and statutory law, as found in state legal

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codes. To some extent the moral and legal codes overlap. Thus, laws proscribing murder and theft are found in both the Decalogue and criminal codes. Codes of international law as they pertain to the honoring and enforcing of human rights are congruent with moral codes. However, there is not necessarily a one-to-one correlation between the precepts of moral codes and those of legal ones. Some moral injunctions, e.g., Christ’s commandment to love one’s enemies, are not included among any civil statutes, and many statutory laws, e.g., the rules of the road, find no correspondence in any moral code. The moral institution of life, then, is distinct from the legal institution. This is further evident in three ways: First, moral laws are typically thought to be universally binding on all human beings in all times and places; statutory laws not duplicating moral laws are not. Laws proscribing murder and theft have universal import, but the laws, say, setting highway speed limits, do not and change from jurisdiction to jurisdiction. Second, the moral law may conflict with statutory law. The Jim Crow laws of the American South, the apartheid laws of South Africa, and the many laws restricting Jews in Nazi Germany, though all perfectly “legal” and arrived at through due process, were clearly unjust and so immoral. The potential conflict between moral and statutory laws makes possible and validates cases of “liberty of conscience” or “civil disobedience.” Henry David Thoreau, Mahatma Gandhi, and Martin Luther King, Jr., all broke statutory laws which they believed violated the moral law. They thought that obedience to the higher moral (natural) law required disobedience to the statutory law; doing otherwise would have violated their conscience. Third, the moral law applies not only to our overt actions but equally to our inner dispositions and motives, something deontological ethicists would affirm but teleological ethicists deny. It is not enough merely to refrain from doing evil, but we ought not to even will or intend it. Merely our desire or intention of doing it, though we do not carry it out or are thwarted in our efforts to do so, is sufficient for us to stand condemned by the moral law. The moral law’s powerful hold over the human heart is expressed in Christ’s admonition, “You have heard that it was said, ‘You shall not commit adultery.’ But I say to you that everyone who looks at a woman lustfully has already committed adultery with her in his heart.” 6 The moral law’s tight grip is a matter of common experience. Many of us have felt the pangs of conscience even after doing morally dubious but quite legal things or simply by harboring malevolent thoughts. By contrast, statutory law is concerned solely with our overt actions, not with the quality of our character. Only if we actually break the law are such things as our motives and character considered either to establish or mitigate our guilt. Moreover, breaking the law by exceeding the speed limit or parking improperly will hardly afflict our conscience, though it may result in our regret if we are caught. When Dietrich

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Bonhoeffer, the Lutheran pastor, theologian, and martyr, conspired to kill Hitler, it is unlikely that he had a twinge of conscience. THE EVASION OF MORALITY One form taken by the evasion of morality is the doctrine of moral relativism. This doctrine is untenable because it is logically incoherent, leads to a reductio ad absurdum, and entirely obviates the discipline of ethics. Moral relativism is now very fashionable, particularly among social scientists and undergraduates. It takes into account moral, religious, and other cultural differences among peoples and is ostensibly a plea for toleration. Simply stated its argument is this: The moral institution of life, including practical codes of conduct and widely accepted values, are specific to the societies from which they emerge and to which they are suited. Therefore, all systems of moral belief are equally legitimate or good insofar as they serve the ends for which they arose, and there is no way of establishing objectively the superiority of one over the others—moral authority lies solely in the will of a people. This means that there is no Archimedean point from which we might rightly adjudge the rightness or wrongness of a culture’s moral precepts and values. Moral relativism, of course, is absolutely contrary to moral objectivism or realism (and, as we shall see in a subsequent chapter, the theory of natural law) which maintains that there do exist certain moral principles woven, as it were, into the very fabric of the universe, or ordained by God, which are objectively true, transcending all social mores, and binding on all persons and holding them accountable. 7 Moral relativism, though, is objectionable on several counts: First, it is logically fallacious. Its conclusion, namely, that all moral codes, though reflecting differences in their social origins, are equally valid or good, does not follow from the premise, namely, that morality is specific to the societies from which it emerges and to which it is suited. The premise is a factual statement which is open to empirical verification or falsification. But the conclusion is a normative statement that commits two fallacies. To say that a moral code is good because of its point of origin is to commit the genetic fallacy, that is, the origin of a belief does not confer truth (or falsity) or, in this case, moral legitimacy on it. Further, given, say, that a moral law originates in and suits a particular society, it may still be asked whether it is a good law that ought to be obeyed. Thus, female circumcision is practiced in some Muslim societies being sanctioned by religion and custom. But the question yet occurs, “but is it right?” To answer that it is so because the practice originates in, belongs, and is appropriate to that society is fallaciously to beg the question since the question remains unanswered. Moreover, the very possibility of raising this question as to the genuine goodness or right-

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ness of a moral code presupposes that there is a moral standard above and beyond the mores of any particular society by which to evaluate them. Finally, factual differences among moral codes by no means imply equality of value. A second objection to moral relativism is that it renders impossible the practice of the discipline of ethics, understood as critical reflection on the precepts contained in moral codes, since there is no higher vantage from which to reflect on them. The critique of morals presupposes that there is a standard of judgment lying outside them according to which they can be adjudged. But the moral relativist denies that there is any such standard. This forecloses all ethical discussion. Any dispute on a moral issue comes down to nothing more than a face-off between opposed codes over which there can be no adjudication as to merit. The one that prevails does so on the basis not of reason but of force—might makes right. Thus, moral criticism of slavery, apartheid, and even genocide becomes nugatory. Thus it is that China tacitly assumes the relativist position when it responds to the West’s criticism of its human-rights record by accusing it of inappropriately applying Western standards of justice to Chinese polity where they are inapplicable. As would Islamic nations were they to defend the stoning of adulterers against the West’s abhorrence of this practice by appealing to Sharia Law. Consequently, Americans have no legal, let alone moral, right to condemn such draconian punishments on the basis of the Eighth Amendment. There is an amusing story, perhaps apocryphal, but illustrative of the point at hand. It is said that Lord Arthur Balfour, in attempting to arbitrate a dispute between some Palestinian Muslims and Jews, quipped, “Why can’t you settle your differences like good Christian gentlemen?” One imagines that the disputants in response took the relativist tack! Yet it is possible to make normative judgments about codes of conduct, which we often do spontaneously, and that can be shown to be reasonable. Moral relativism, moreover, might legitimate a nation’s starting an unjust war and ignoring the strictures of the Geneva Convention in its conduct of it because its “moral” code sanctioned such measures. It could declare that there is no law higher than its own. Thus Hitler, from his “moral” perspective, could justify the invasion of Poland and genocide in order to unite Europe (Napoleon’s dream) under the German Reich and eugenically cleanse its population of “inferior races.” And this might lead to the moral reductio ad absurdum of other nations accepting the moral legitimacy of, say, genocide, if permitted by their moral codes and so precluding humanitarian intervention on behalf of the victims. It should be noted that political realists could appeal to moral relativism to justify excluding ethics from realpolitik and relieve themselves of the responsibility of making moral judgments. Since any moral code has authority solely over the nation subscribing to it but not over other nations, then no

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nation can legitimately criticize the moral conduct of another by invoking its own moral code. NORMATIVE ETHICAL THEORIES Normative ethical theories may be classified, most fundamentally, according to whether they are dispositional or decisional. A dispositional theory focuses on those dispositions or habits and their acquisition that constitute a good character, a sine qua non for achieving happiness or a flourishing state of existence. The paradigm of a dispositional theory of ethics is Aristotle’s aretaic or virtue ethics. A decisional ethical theory, on the other hand, focuses instead on a principle whereby a moral decision or judgment should be made. Paradigms of a decisional ethical theory are John Stuart Mill’s utilitarianism with its principle of utility, Immanuel Kant’s deontologism with its principle of the categorical imperative, and W. D. Ross’s intuitionism with its principle of prima facie duties. Normative ethical theories may also be classified according to whether they consider the consequences of an act or its motive as conferring moral worth. According to consequentialist or teleological theories like Aristotle’s and Mill’s, the rightness of an act depends wholly upon the personal or public benefits likely resulting from it. Whereas according to deontological theories like Kant’s, the rightness of an act depends not at all on any benefits that might redound to the individual or the public, but solely on whether its motive was respect for the moral law. Bear in mind that a normative ethical theory to pass muster should meet the following conditions. First, it should be consistent with the generally held beliefs about the world, with the prevailing world-view. This means, among other things, that it must not be in conflict with the currently accepted findings of natural science, and it ought to be especially conversant with facts and theories of human nature from the social sciences. An ethical theory should be informed by current science. Second, an ethical theory ought not to fly in the face of what, for lack of a better term, I call “moral common sense,” which reflects a sort of consensus among civilized people as to the inviolableness of certain moral norms. For example, there is, I should think, broad general agreement among rational and decent people that rape, and torturing children and animals are unexceptionably and objectively wrong. In the next three chapters I give, first, expositions of five dominant normative ethical theories and, second, critiques of them. The critiques have negative and positive parts: The negative part identifies defects in the theory and the positive considers its merits.

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NOTES 1. Aristotle, The Politics of Aristotle, trans. Peter L. Phillips Simpson (Chapel Hill: The University of North Carolina Press, 1997), 46. 2. Joseph Butler, The Analogy of Religion, in The Works of Joseph Butler, ed. W. E. Gladstone (Oxford: The Clarendon Press, 1897), 1:63. 3. Jonathan Edwards, “On the Medium of Moral Government—Particularly Conversation,” in Miscellaneous Observations on Important Theological Subjects, Original and Collected, in The Works of President Edwards, ed. E. Hickman (Edinburgh: The Banner of Truth Trust, 1979), 2: 486, #7. 4. A. I. Melden, “Editor’s Essay,” in Ethical Theories: A Book of Readings, ed. A. I. Melden, 2nd ed. (Englewood Cliffs, NJ: Prentice-Hall, 1967), 5 5. I use the expression “civil law” in its general nontechnical sense (unless otherwise noted) to refer to laws made by human beings, as distinct from “scientific law” and “natural law.” 6. Matthew 5:27–28 (Revised Standard Version). 7. Historically, moral relativism is traceable to the pre-Socratic philosopher, Democritus, who held a positive relativism based on common human psychology according to which “man is the measure of all things.” The same idea is found in Hamlet’s remark that “there is nothing either good or bad, but thinking makes it so.” In other words, moral values are relative not only to particular societies, and so differ accordingly, but to the human mind as such.

Chapter Three

Normative Ethical Theory II Teleological Theories

ARISTOTLE’S ARETAIC (VIRTUE) ETHICS Aretaic ethics is the most ancient normative ethical theory in Western philosophy, though it is not completely original with Aristotle since many of its elements are derived from Plato. However, it is given its most complete and systematic formulation in his Nicomachean Ethics. Aristotle’s ethics can be classified variously as virtue-based, because of its emphasis on the cultivation of virtues; as aretaic (arête is the Greek word for excellence), because the virtues are examples of excellence; as dispositional, because of its stress on the inculcation of certain good dispositions or habits disposing us to act well; as teleological, insofar as it is geared toward the attainment of a certain purpose or goal; as eudaemonistic, insofar as that purpose for human life is happiness or a flourishing state of existence; and, most generally, as the ethics of being, because of its focus on the reality of who we are or the quality of our character. The virtues are good habits, dispositions or traits of character which, if they govern our conduct, are a necessary means to our overall well-being. 1 But what for Aristotle is it exactly that makes a particular habit virtuous or good? To find out, consider what makes courage a virtue. To understand that consider what courage is not. Obviously it is not cowardice or shrinking from danger. Nor is it foolhardiness, a taking of unnecessary risks or complete indifference to danger, such as playing Russian roulette or playing a game of “chicken” with your car. Cowardice falls short of courage, whereas foolhardiness overshoots the mark. Courage, then, occupies the midpoint or mean between too little or too much of an inclination or disposition. 15

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Aristotle’s definition of “virtue” or a “good habit” can be generalized from its example of courage. Virtue is the habit of occupying the middlepoint or mean between the extremes of an inclination, emotion, or action. One extreme is a deficiency in what makes for the virtue in question, the other is excess. It is a matter of balance or proportionality. The story of Goldilocks and the three bears provides an analogy that clarifies Aristotle’s understanding of virtue. Father bear’s porridge was too hot for Goldilocks, mother bear’s porridge too cold, but baby bear’s porridge was just right, that is, the mean between the extremes of temperature: Virtue, therefore, is a characteristic marked by choice, residing in the mean relative to us, a characteristic defined by reason and as the prudent person would define it. Virtue is also a mean with respect to two vices, the one vice related to excess, the other to deficiency; and further, it is a mean because some vices fall short of and others exceed what should be the case in both passions and actions, whereas virtue discovers and chooses the middle term. Thus with respect to its being and the definition that states what it is, virtue is a mean; but with respect to what is best and the doing of something well, it is an extreme. 2

Aristotle’s ethics is open to several objections. I shall confine myself here to four, two of which are to his conception of virtue as the mean between extremes of deficiency and excess. One such objection concerns the concept of the mean. This is a mathematical concept that in its form as the “Golden Mean” (“Golden Section”) is an aesthetic concept applied to classical art. However, the propriety of Aristotle’s application of it to the human soul as a regulatory principle for human conduct, thereby making it a psychological and ethical concept as well, might be questioned. Undoubtedly, regulating our lives by this moral mean makes good psychological sense, being conducive, as Aristotle observes, to a successful and happy life. Yet, though living by the moral mean makes for psychological health and contributes to the good life, the question may well be asked as to what is specifically moral about the moral mean, or the virtues which represent nothing more than, analogously, a mathematical relation. Psychological health and the good life are unquestionable natural goods, but how are they specifically moral goods as well? Aristotle’s moral mean, then, seems to be more a matter of prudence and good taste than of ethics. Albert Schweitzer, alluding to the role played by the Golden Mean in art, aptly characterized the Aristotelian conception of virtue as “an aesthetic of the impulses of the will.” 3 A second objection concerning the moral mean is that though determining the mathematical mean can be done with precision, the same cannot be said for determining the moral mean. How is the precise mean between the extremes of deficiency and excess in behavior to be determined? Aristotle,

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though, does allow for this imprecision. Toward the beginning of the Nicomachean Ethics he concedes that the human sciences such as psychology and ethics do not lend themselves to the same degree of precision and accuracy as the natural sciences: But let it be agreed to in advance that every argument concerned with what ought to be done is bound to be stated in outline only and not precisely— . . . , that the demands made of given arguments should accord with the subject matter in question. Matters of action and those pertaining to what is advantageous have nothing stationary about them. . . . And since such is the character of the general argument, still less precise is the argument concerned with particulars, for it does not fall under an art or any set of precepts. Instead, those who act ought themselves always to examine what pertains to the opportune moment . . . .

Moreover, he supposes that, even with this handicap, a well-educated person should be able to make sound moral judgments such as determining the moral mean: “Each person judges nobly the things he knows, and of these he is a good judge. He is a good judge of a particular thing, therefore, if he has been educated with a view to it, but is a good judge simply if he has been educated about everything.” 4 A third objection, concerning the adequacy of the moral mean to define the whole of virtue, is that Aristotle presupposes a criterion of virtue other than the mean between deficiency and excess, a presupposition that he neither acknowledges nor explains, as in the following excerpt from the Nicomachean Ethics: “But not every action or every passion admits of the mean, for some have names that are immediately associated with baseness—for example, spitefulness, shamelessness, envy, and, when it comes to actions, adultery, theft, and murder. For all these things, and those like them, are spoken of as being themselves base, rather than just their excesses or deficiencies.” 5 What Aristotle is saying here is that emotions such as envy and actions such as adultery are bad, not because they represent either excess or deficiency, but because they are bad in and of themselves. Thus envy is not bad because we feel it either too much or too little, and adultery is not bad because we commit either too much or too little of it, but they are bad if moderated. There is no mean between too much or too little, say, of envy or adultery that represents virtue in these cases. Envy and adultery, even in moderation, are vices, period. But, if this is so, a virtuous character is one that not only observes the mean represented by the various virtues but also eschews certain vices, which is not a matter of observing any mean. In one place, Aristotle identifies vice with a lack of proportion, represented by deficiency or excess, with respect to certain emotions or actions; however, elsewhere he identifies it with the emotions or actions themselves such as envy and adultery, respectively. Yet he does not explain what, exactly, the badness

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of emotions such as envy, spite, and shamelessness or the badness of actions such adultery, theft, or murder consists in. Why are they vices? Cowardice and foolhardiness are bad because they are disproportionate, but Aristotle gives no corresponding explanation of why envy and adultery are bad. Aristotle, then, appeals to two distinct criteria of vice. The one he explicitly identifies as being disproportion with respect to emotions and actions. But the other criterion he neither identifies nor acknowledges; he simply gives examples of it, such as envy and adultery. And on the opposite side with respect to the virtues of justice and wisdom, they are not good because they occupy the mean between deficiency and excess. They may be deficient but never excessive for there cannot be an excess of justice or wisdom. These virtues are good simply in and of themselves. But Aristotle does not identify that criterion of virtue, other than the moral mean, which justice and wisdom meet thereby making them intrinsically good. Schweitzer again takes Aristotle to task with respect to this very point: In the chapter on temperance—in the third Book of the Nicomachean Ethics— he has to admit that the theory which makes the ethical a mean between two extremes cannot be completely developed. The love of beauty, he says plainly, however strong it becomes, remains what it is; there can never be any question of excess. He throws out this admission without seeing that he thereby undermines his feeble definition of the ethical as the appropriate relative mean, and, like Socrates and Plato, acknowledges that there can be something which its content allows to be reckoned as good in itself. 6

Though in extenuation of Aristotle’s silence as to this second unacknowledged criterion of vice or of virtue, one might appeal to his concession that precision in such matters is not to be had. Any knowledgeable person, he might say, judges intuitively that certain emotions and actions are intrinsically bad and others intrinsically good—“Each person judges nobly the things he knows, and of these he is a good judge. He is a good judge of a particular thing, therefore, if he has been educated with a view to it, but is a good judge simply if he has been educated about everything.” Finally, a more general objection that might be made to Aristotle’s aretaic ethics is that it does not provide us with any firm practical rules to guide us in our moral decisions and allow us to escape moral dilemmas. This, of course, is to be expected from a theory in which our character, instead of our moral choices, has the spotlight; Aristotle’s ethics, after all, is a dispositional, not a decisional ethics. On the aretaic theory, if we have cultivated the virtues, we need not overly worry about deciding what is best to do; presumably we cannot help but make the morally right decision, which will simply be a spontaneous and natural result of our character, as good fruit is the result of a sound tree. However, as Aristotle fully appreciates, the cultivation of a virtu-

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ous character takes time and painstaking practice and is achievable only through a strict regimen of moral education beginning in early childhood. Yet even the virtuous, the beneficiaries of moral education with ample opportunities for practicing the virtues thereby inculcated, might sometimes need recourse to rules or principles in making moral decisions. Consequently, more than their having a good character is requisite for politicians and generals making the right decision regarding the commencement and conduct of war. These objections to it notwithstanding, Aristotle’s aretaic ethics has much to recommend it beyond his conception of virtue. For one thing, it allows and explains that being moral requires more than simply knowing and following certain moral rules or precepts and so is in accord with our moral common sense. We sense that there is more to morality than merely acting mechanically on principle for principle’s sake. It is not enough for us to act morally, to do what is right out of principle, but we should also be moral, which means being actuated by good motives and habits, constituting a good character, thereby disposing us to act rightly. A second merit of Aristotle’s ethics is its recognition that knowledge of virtue is not sufficient to make us virtuous, that knowledge of the good is not enough to make us good; we must also will to be so and habituated to its practice. 7 An adage has it that you can lead a horse to water but you cannot make it drink. Though we may know perfectly well what we ought to do, we neglect doing it; though we may know perfectly well what we ought not to do, we do it anyway. And turning knowledge of the good into the doing of it is no easy task, as Portia remarks in Shakespeare’s The Merchant of Venice: “If to do were as easy as to know what were good to do, chapels had been churches and poor men’s cottages princes’ palaces. It is a good divine that follows his own instructions. I can easier teach twenty what were good to be done than be one of the twenty to follow mine own teaching.” 8 There is a diremption between our intellect and our will which carries weighty consequences. Aretaic ethics provides a remedy for our unwillingness to do what we know we ought to do, which is moral education and conditioning. The hope is that having steeled our wills with good habits or virtues, we shall be naturally disposed to do the right thing. Moreover, a virtuous person presumably will be more flexible and responsive to the nuances of a complex moral dilemma than one who is prepared only to apply one or another rigid principle or rule. Though dispositional aretaic ethics has for a long time been ignored in favor of various forms of decisional ethics, it is now commanding increasingly greater interest and respect. Indeed, some recent philosophers such as Alastair MacIntyre, G. E. M. Anscombe, and Mortimer Adler think that the modern tradition of teleological (utilitarian) and deontological (Kantian) ethics was wrong-headed from the start and is now moribund, and that a revival

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of aretaic ethics is the last best hope for moral philosophy. Anscombe, for one, has written as follows concerning key concepts in the ethical theories she opposes: the concepts of obligation, and duty—moral obligation and moral duty, that is to say—and of what is morally right and wrong, and of the moral sense of “ought,” ought to be jettisoned if this is psychologically possible; . . . . It would be a great improvement if, instead of “morally wrong,” one always named a genus such as “untruthful,” “unchaste,” “unjust.” We should no longer ask whether doing something was “wrong,” passing directly from some description of an action to this notion; we should ask whether, e.g., it was unjust; and the answer would sometimes be clear at once. 9

The genera, in these cases, would presumably refer to vices, the opposite of the virtues of truthfulness, chasteness, and justice, respectively. Aristotle’s ethics has particular application to just war theory. His conception of virtue as a mean between the extremes of deficiency and excess is reflected in, and justifies philosophically, the principle that the force used in military operations should be proportional to their object—neither too little nor too much. His idea that the inculcation of good habits or virtues as components of good character requires education and practice, and that thus equipped a person will be more likely to make the right decision as to how to act, is relevant to the training of those having the authority to declare and fight wars. MILL’S UTILITARIANISM I turn now from Aristotle’s dispositional ethics founded on character to Mill’s decisional ethics founded on an ethical principle, the principle of utility. Mill’s ethics has much in common with Aristotle’s inasmuch as it is eudaemonistic, identifying happiness as the sole intrinsic good and as the goal of moral conduct and of life, and teleological, being oriented to goals or purposes. Mill’s normative ethical theory is a form of utilitarianism, alternatively referred to as the “Greatest Happiness Principle” or the “Principle of Utility.” It first emerged as a bona fide ethical theory in Great Britain during the first half of the eighteenth century. Rudimentary forms of it are to be found in the moral philosophies of Anthony Ashley Cooper, 3rd Earl of Shaftesbury; Francis Hutcheson; John Gay; David Hume; Adam Smith; and William Paley. But it receives its completest and most systematic statement in Jeremy Bentham’s Introduction to the Principles of Morals and Legislation. After it was attacked by such as Thomas Carlyle who dismissed it as a “pig philosophy” 10 because of its implied hedonism, Bentham’s disciple, Mill, rejoined

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with his Utilitarianism, a defense of his master’s doctrine, which serves as the locus classicus for contemporary discussions of the theory. “Utilitarianism” is derived from the Latin term, utilitas, meaning “usefulness,” “expediency,” and “advantage.” The utilitarian decides on, justifies, and evaluates actions or moral precepts by pointing to the beneficial consequences likely accruing from performing or following them. Utilitarianism determines the moral worth of an action, or rule of action, solely on the basis of its public benefits. Because of its focus on the consequences of actions or moral precepts in determining their rightness, utilitarianism is sometimes referred to as a consequentialist theory. The utilitarian stipulates that before we act we should first carefully calculate all the probable social consequences of our contemplated course of action. If we determine that the action will likely benefit more people than not, or will hurt the fewest people than not, then we ought to perform it. That action is right. But, if we determine instead that the action will likely harm more people than not, or benefit the fewest people than not, then we ought not to perform it. That action is wrong. Mill sums up utilitarianism’s fundamental principle as follows: “. . . actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure, and absence of pain; by unhappiness, pain, and the privation of pleasure.” 11 Bentham’s formulation of the principle adds the rider that it should be a principle determining public policy as well as the conduct of private individuals: By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the happiness of the party whose interest is in question; or . . . to promote or oppose that happiness. I say of every action whatsoever; and therefore not only of every action of a private individual, but of every measure of government. 12

This, of course, would include political policies relating to war and peace, thereby making utilitarianism particularly applicable to just war theory. Those with the authority to declare war, whether they realize it or not, use, or should use, a utilitarian calculus in weighing the pros and cons of their contemplated declaration. Utilitarianism is epitomized in the well-known maxim coined by Hutcheson, “that Action is best, which procures the greatest Happiness for the greatest Numbers.” 13 Bentham rephrased it as, “the greatest happiness of the greatest number that is the measure of right and wrong,” 14 making it the “fundamental axiom” of his ethical system. 15 Several objections can be made to utilitarianism, but I shall limit myself to those that bear directly on its application to just war theory. These have to do with its consequentialism; its overlooking of motives and intentions in

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determining the merits of an action; its overriding of prior obligations when expedient; and, most serious of all, its potential threat to justice and human rights. One objection is the problem of accurately predicting all the probable consequences of an action which are relevant to the public good, and then of accurately determining whether they in actuality would be good after all. The course of events can play tricks on us and might be fraught with irony. Expected events fail to occur, and unforeseen events do. This is especially true in war. It was confidently predicted that the First World War would be over by Christmas of 1914, and that the American invaders of Iraq in 2003 would be greeted with open hearts and flowers. Moreover, the necessity of having each time to calculate the possible results of a morally significant action, in order to decide whether to perform it or not, can be impractical, time-consuming, and liable to error. A second objection to utilitarianism is its assumption that only the consequences of actions are relevant in determining their moral worth. This overlooks the no less morally relevant criteria of motives and intentions. Motives seem to count for very little in utilitarian calculations. 16 Yet they definitely do count in just war theory which stipulates that for a war to be just the nation declaring it must have the right intention in doing so. However, an illintentioned nation, bent on territorial acquisition, might flout this stipulation and justify itself with the principle of utility. A third objection is that utilitarianism tempts us to disregard, or even override, the moral force of prior obligations and promises whenever expedient. Thus obligations should be met and promises kept as long as they produce a greater balance of good over evil (or a lesser balance of evil over good), but not if they produce the opposite result. Note, it is not a question of whether they might be reneged on if doing so would yield more public benefits than not, but they must, since the moral merit of actions depends solely on their consequences. A nation, therefore, might think itself justified, on the same consequentialist principle, in breaking treaties and striking a rival nation pre-emptively. In other words, utilitarianism could be used by political realists, in a cynical nod to ethics, to undercut just war theory. They might argue that the advantages accruing to a nation by its ignoring ethics in the conduct of war significantly outweigh the disadvantages. (Again, ironically, realists cannot escape some tacit commitment to ethical theory, i.e., utilitarianism, even in their rejection of a role for ethics in foreign policy.) Perhaps the most serious objection to this ethical theory is that it invites injustice. Justice is no less a value than utility or the public good. Consider the case of scapegoats, where innocent people might be punished for the sake of some social benefit. In retaliation for guerrilla attacks by the French Resistance, the German occupiers would randomly round up a group of civilians and execute them. This was intended as a deterrent against future attacks

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thereby to ensure public peace and security. Scapegoating is graphically illustrated in Shirley Jackson’s short story, The Lottery, which is about how once a year a community makes a human sacrifice of an innocent person chosen at random. It is an ancient custom, hallowed by age, which, it is superstitiously believed, ensures a bountiful crop every autumn. It is feared that if this custom were not observed the harvest would fail. The potential conflict between the “Greatest Happiness Principle” and justice is memorably illustrated by William James in the following thought-experiment: If the hypothesis were offered us of a world in which . . . millions of us [were] kept permanently happy on the one simple condition that a certain lost soul on the far-off edge of things should lead a life of lonely torture, what except a specific and independent sort of emotion can it be which would make us immediately feel, even though an impulse arose within us to clutch at the happiness so offered, how hideous a thing would be its enjoyment when deliberately accepted as the fruit of such a bargain? 17

In addition to illustrating the potential incompatibility between utility and justice, this scenario exposes the fact that there is more to moral value than people’s happiness. Related to its potential for injustice, utilitarianism might ride roughshod over human rights like the right to life, or the right to be treated fairly or justly. The rights of individuals have no less moral standing than the public good, but may be infringed in pursuit of the latter. Thus during the Second World War, Japanese-Americans were wrongfully interned in camps in the interest of national security. Drones are deployed in the fight against terrorists with the full knowledge that innocent people will die accidentally (socalled “collateral damage”) from their use, though their deaths are not intended and every precaution taken to avoid them. Such infringement of human rights may be justified on utilitarian grounds. To meet these objections, utilitarianism has undergone revision which has gone some way to redeem it. To meet the objection that it is difficult to predict accurately the probable consequences of a particular act and to assess their benefit, utilitarians have proposed that instead of looking to the likely consequences of a proposed act we look to the likely consequences of acting on the rule that the act would either violate or observe. Take promises, for example. To realize that I ought to keep a promise and not break it I need not be concerned with the consequences of doing either. I need look no further than the rule or moral law that stipulates that promises should be kept since the overall consequences of keeping them benefit society and those of breaking them do not. We ought to obey the moral laws prescribed in codes of conduct like the Decalogue because of the advantages to society of doing so and the disadvantages of not. The Ten Commandments are morally authoritative not because they are God’s commands but because of their social utility.

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Mill seems to have something like this in mind in his reply to critics of the principle of utility who object “that there is not time previous to action, for calculating and weighing the effects of any line of conduct on the general happiness.” He reminds them, that there has been ample time, namely, the whole past duration of the human species. During all that time, mankind have been learning by experience the tendencies of actions; on which experience all the prudence, as well as all the morality, of life are dependent. . . . It is truly a whimsical supposition that, if mankind were agreed in considering utility to be the text of morality, they would remain without any agreement as to what is useful, and would take no measures for having their notions on the subject taught to the young, and enforced by law and opinion. . . . Mankind must by this time have acquired positive beliefs as to the effects of some actions on their happiness; and the beliefs which have thus come down are the rules of morality [italics mine] for the multitude, and for the philosopher until he has succeeded in finding better. 18

These “rules of morality,” or moral laws, have proven effective, when followed, in promoting the public happiness from which they derive their moral worth. This shift of attention away from particular acts and their consequences to general rules or moral principles and theirs is the basis of rule-utilitarianism, as distinct from act-utilitarianism which focuses on acts. Rule-utilitarianism has several advantages over act-utilitarianism. First, it is more efficient, insofar as it spares us the necessity of having to figure out all the positive versus negative consequences of each of our choices when deciding how to act, and so reduces the chances of miscalculation. Second, it is more practicable. Moral rules have the advantage of being clearly stated, reflect the cumulative moral wisdom of generations, and bear the authority of our collective moral experience. Moral rules are neat rules of thumb which have proven their utility over time. And third, rule-utilitarianism is more consistent with our commonly held notions of justice and commitment to human rights. Ruleutilitarians would enjoin us to act on just principles, honor the rights of individuals, and meet our moral obligations because historical experience has shown that doing so leads to better social and political results overall than doing otherwise. Governments that flout the canons of justice and trample on human rights sow the dragon’s teeth of revolution and civil war and invariably reap the whirlwind. And nations that transgress the laws of war typically come to a bad end, along with their victims. Though having a distinct advantage over act-utilitarianism, rule-utilitarianism is nevertheless problematic. Rules of conduct can be vague, or come into conflict, or admit of exceptions. In such cases our only recourse is to

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consider the consequences of the exceptional act proposed which brings us back to act-utilitarianism and its attendant risks. Mill’s approach to something like the rule-utilitarianism in his justification of expedience in rare cases. Acting out of expedience might violate a moral law or rule, but is justified if and only if it would serve the public interest better than the strict observance of the moral law. However, violating a moral law out of expedience is never justified if it is to advance the interest of some private party. Mill illustrates this point with the example of telling the truth which, as a rule, should always be done, though it too admits of exceptions for the sake of expedience: But inasmuch as the cultivation in ourselves of a sensitive feeling on the subject of veracity is one of the most useful, and the enfeeblement of that feeling one of the most hurtful, things to which our conduct can be instrumental; . . . we feel that the violation, for a present advantage, of a rule of such transcendent expediency is not expedient. . . . Yet that even this rule, sacred as it is, admits of possible exceptions . . . ; the chief of which is when the withholding of some fact . . . would save an individual . . . from great and unmerited evil, and when the withholding can only be effected by denial.

However, Mill cautions that exceptions to moral laws and rules in the name of expedience should be carefully circumscribed. He stipulates, again relative to honesty: But in order that the exception may not extend itself beyond the need, and may have the least possible effect in weakening reliance on veracity, it ought to be recognized and, if possible, its limits defined; and if the principle of utility is good for anything, it must be good for weighing these conflicting utilities against one another, and marking out the region within which one or the other preponderates. 19

By extension, then, any moral rule or law, not just that enjoining truthtelling, is as a general principle to be observed for the sake of the public good, though exceptions in special cases may be allowed if expedient, again for the sake of the same public good. To illustrate the distinction between act- and rule-utilitarianism, consider its application to the case of war. Suppose a nation is trying to decide whether to initiate a pre-emptive war against another because of a perceived threat. Act-utilitarians, in comparing the possible consequences of action and inaction, might think it feasible to strike now rather than be struck later by the foe. The consequences in the short term of that strike might be foreseen and judged advantageous, but not those in the long-term that might in fact prove disastrous to the nation. This was the case with the second Iraq War the consequences of which were woefully miscalculated. By contrast, rule-utilitarians would counsel that the better part of wisdom is to consider not the

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particular act itself and its consequences but the rule prescribed in the United Nations Charter proscribing such preemption. 20 They might conclude that based on an historical survey of what happens when nations do initiate preemptive wars, the negative consequences of violating that rule generally overbalance the positive, whereas the positive consequences of following the rule against initiating pre-emptive wars generally overbalance the negative. Yet despite objections to it, some of which Mill himself addressed, utilitarianism has much to recommend it. It is a very adaptable ethical theory and readily emendable, as in shifting the focus away from acts to rules in response to its critics. It is eminently practicable. It recognizes that actions have consequences that cannot be ignored. And in its locating the moral good in public benefits, it furnishes us an apparently clear and effective criterion by which to resolve moral conflicts such as those between equally binding duties. Utilitarianism is inclusive and egalitarian. As happiness is the goal of moral action and the basis of moral standing, there are no logical or just grounds for excluding the happiness of some, or ranking their happiness lower or higher than others’. The point is, if any being is sentient, i.e., has the capacity for feeling pleasure or pain, or experiencing happiness or misery, then it has moral standing and its well-being counts. The utilitarian theory is impartial in the application of its “Greatest Happiness Principle.” Impartiality is an aspect of justice. Although utilitarianism has been criticized for exalting utility and expedience at the expense of justice, at least foundationally it is a just ethical theory. It is humanistic insofar it takes seriously human happiness for which by nature all humans strive, as Aristotle well understood. Finally, it is humanitarian for its commitment to the public good. The application of the “Principle of Utility” to public affairs promises the crafting of more just and humane social and political policies. Utilitarianism, then, explicitly links moral philosophy to social and political philosophy. It is no accident that the classic utilitarians, Bentham and Mill, were social and political reformers, with Mill serving as a Member of Parliament. The “Principle of Utility” lends itself readily as an instrument of social and legal reform, with which it was undoubtedly associated in their minds. For this reason it has become an ethical mainstay in just war theory and other matters concerned with foreign policy. In sum, utilitarianism is eminently adaptable, practicable, inclusive, egalitarian, impartial, humanistic, and humanitarian— merits ideally possessed by any normative ethical theory. NOTES 1. Aristotle defines “virtue” as follows: “So it must be stated that every virtue both brings that of which it is the virtue into a good condition and causes the work belonging to that thing to be done well. . . . If indeed this is so in all cases, then the virtue of a human being too would be that characteristic as a result of which a human being becomes good and as a result of which

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he causes his own work to be done well.” From Aristotle’s Nicomachean Ethics, trans. Robert C. Bartlett and Susan D. Collins (Chicago: The University of Chicago Press, 2011), 33. 2. Aristotle, Nicomachean Ethics, in Aristotle’s Nicomachean Ethics, trans. Robert C. Bartlett and Susan D. Collins (Chicago: The University of Chicago Press, 2011), 35. For Aristotle’s full discussion of his conception of virtue as a mean between the extremes of deficiency and excess, see Book II, Chapter 6, of Nicomachean Ethics. 3. Albert Schweitzer, The Philosophy of Civilization (Buffalo, NY: Prometheus Books, 1987), 125. 4. Aristotle, Nicomachean Ethics, 28, 4. 5. Ibid., 35. 6. Schweitzer, Philosophy of Civilization, 127. 7. St. Paul illustrates this point with his lament, “I can will what is right, but cannot do it, for I do not do the good I want, but the evil I do not want is what I do.” See Romans 7:18-19 (Revised Standard Version). Note that Aristotle’s insistence that to qualify as being virtuous we must intentionally will to be so and habitually act accordingly are decisional and behavioral elements in his ethical theory thus qualifying it as not being a strictly dispositional theory. 8. William Shakespeare, The Merchant of Venice, in The Complete Works of Shakespeare, ed. David Bevington, 4th ed. (New York: Longman, 1997), 1.2.12–17. References are to act, scene, and line. 9. G. E. M. Anscombe, “Modern Moral Philosophy,” Philosophy 33, no. 124 (January 1958), 1, 7, https://www.pitt.edu/~mthompso/readings/mmp.pdf. 10. Thomas Carlyle, ed., Latter-Day Pamphlets (London: Chapman and Hall, 1850), 271. 11. John Stuart Mill, Utilitarianism, in Essays on Ethics, Religion and Society, ed. J. M. Robson (Toronto: University of Toronto Press, 1969), 210. Mill, as well as Bentham, use “pleasure” and “happiness” interchangeably, though there is a distinction between them, which Aristotle makes. 12. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in Ethical Theories: A Book of Readings, ed. A. I. Melden, 2nd ed. (Englewood Cliffs, NJ: Prentice Hall, 1967), 368. 13. Francis Hutcheson, An Inquiry into the Original of our Ideas of Beauty and Virtue, ed. Wolfgang Leidhold, rev. ed. (Indianapolis, IN: Liberty Fund, Inc., 2004), 125. 14. Jeremy Bentham, A Comment on the Commentaries and A Fragment on Government, in The Collected Works of Jeremy Bentham, ed. J. H. Burns and H. L. A. Hart (Oxford: Oxford University Press, 1977), 393. 15. Bentham is unambiguously a quantitative hedonist—all that matters in evaluating actions is the quantity or amount of pleasure accruing from them. On the other hand, it is unclear as to what Mill is. Like Bentham, he speaks of the pleasure resulting from actions as the determinant of their value. However, there are two things that suggest he is, more accurately, a qualitative eudaemonist. First, he remarks that it is better to be Socrates dissatisfied than a pig dissatisfied. Second, unlike Bentham, Mill says that it is not just the quantity of pleasure that determines its overall value, but also its quality. 16. However, I do not think Mill discounts motives completely. By his insisting that “the motive has nothing to do with the morality of the action, though much with the worth of the agent,” he is saying that the moral worth of the action lies entirely in its utility, but the motive may confer worth on the agent. He seems to be allowing that actions and the agent’s character are to be judged according to different criteria, i.e., actions are to be judged by their beneficial consequences, whereas the agent’s character by the quality of his/her motives. See Mill, Utilitarianism, 219. 17. William James, “The Moral Philosopher and the Moral Life,” in Essays in Pragmatism, ed. A. Castell (New York: Hafner Publishing, 1954), 68. 18. Mill, Utilitarianism, 224. 19. Ibid., 223. It bears noting that Mill’s insistence on general obedience to well-established moral precepts is akin to Kant’s similar insistence, though for quite different reasons. 20. “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner

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inconsistent with the Purposes of the United Nations.” From UN Charter, Article 2, Section 4, http://www.un.org/en/sections/un-charter/un-charter-full-text/.

Chapter Four

Normative Ethical Theory III Deontological Theories

Opposed to the teleological theories of Aristotle’s aretaic ethics and Mill’s utilitarianism is the deontological theory of ethics. “Deontological” is derived from the Greek root, “deon,” meaning “obligation” or “duty.” The locus of moral value for deontologists is not the consequences of our acts with human happiness as their ultimate goal, but our motives in conformity to the moral law which it is our duty to obey unconditionally—for them, consequences and happiness are irrelevant to the determination of moral value. There are three forms of this normative ethical theory, viz., Kantian ethics, Ross’s ethical intuitionism, and natural law (in its ethical sense), distinguished according to their different conceptions of the locus of moral value. Since natural law theory is complex and so fundamental to discussions of just war theory, I shall reserve the whole of the next chapter for its discussion. I shall restrict myself here to its other two forms, beginning with Kant’s. KANTIAN ETHICS Kant’s moral philosophy is the very paradigm of deontological ethics, so much so that it has become synonymous with it. Whereas classic utilitarianism is founded on the “Greatest Happiness Principle” or the “Principle of Utility,” Kant’s ethics is founded on what he calls the “Categorical Imperative,” an unconditional command, which he defines as follows: “Act only according to that maxim by which you can at the same time will that it should become a universal law.” 1 When we act, we act on a principle or precept—a 29

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maxim—that it might or ought to be done. Kant is saying that if we can universalize the maxim behind any act, thereby giving permission, as it were, to everyone else to act likewise, then we may or ought so to act; but, if we cannot, we ought not so to act. When we act on a maxim we are enacting, as it were, a universal law which commands universal obedience or allows one to act in certain ways. What makes an imperative or command “categorical”? It is one unconditionally binding on all persons in all places and times and permits no exceptions or qualifications. It is to be obeyed for its own sake alone, without reference to any external end or result, such as happiness. An action ensuing from obedience to it is deemed intrinsically good. Kant distinguishes the categorical imperative from so-called “hypothetical” imperatives. As imperatives they too are commands concerning what we ought to do; but they are hypothetical insofar as complying with them is incumbent upon us if and only if we desire to reach a certain goal. Their incumbency is conditional upon our desired goal, so unlike the categorical imperative they are not unconditional. If we desire reaching a certain goal, that goal, as it were, demands or commands that we take specified steps to gain it. However, if we have no such desire, then the demand is nugatory and our compliance with it is not obligatory. Thus if I desire to become a military officer, then it is imperative that I submit to a certain regimen of education and training to reach that goal. But if I do not desire it, then it is not imperative that I do so. Moreover, failure to achieve our desired goals is not morally blameworthy. By contrast the categorical imperative is unconditional; our obeying it does not depend on the desirability of any goal. It is an absolute imperative, not a contingent one. It is not merely a means to another end, as the hypothetical imperative, but an end-in-itself. It is to be obeyed not for the sake of anything else but for its own sake alone. Thus the imperatives never to murder or steal, or always to tell the truth and keep promises, are categorical. Obedience to them does not depend on any personal goals we might set ourselves. And, we are morally blameworthy if we fail to obey them. Kant formulates his foundational moral principle in three different ways, which he thought amounted to the same thing. 2 One, as we have seen, is the categorical imperative, namely, that we ought to act only on those maxims we could rationally will as universal laws. This is the principle of universalizability. A second formulation is what he designates the “practical imperative,” which reads as follows: “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.” 3 To treat persons as means to an end is to use or manipulate them, either against their will or without their knowledge, in order to realize some end or purpose of which they are either ignorant or did not freely choose as their own—in other words, it is to use them as pawns or steppingstones

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without their consent. To manipulate others without their consent or to trick them into doing things is to deprive them of their freedom and to allow them no opportunity of exercising rational thought about their actions. It is to treat them as if they were little more than brute animals or inanimate objects which are neither free nor rational agents. By contrast, to treat persons as ends in themselves is to allow them ample opportunity to exercise their uniquely human endowments of reason and free will and so to honor them as rational and free agents. Human beings, insists Kant, must be treated “only as beings who must be able to contain in themselves the end of the very same action.” 4 This means that humans are beings who have freedom to choose their own purposes or ends and are competent to frame and implement them, and it is these capacities that constitute their personhood. Thus, to treat them as ends is to give them ample scope to exercise their freedom in choosing, and their reason in framing and implementing, their purposes. Consistent with the practical imperative, we should not even allow ourselves to be treated as means to an end, even if done knowingly and willingly, if that end is base. Thus, a prostitute should not consent to be treated as a means to her client’s sexual satisfaction since this would debase not only her but also the very humanity of which she is the image. However, we might voluntarily and knowingly permit ourselves to be used by others as means to honorable ends. For example, recruits, by enlisting, which is a voluntary not compulsory act, tacitly give permission to their officers to use them as means to the accomplishment of missions, as long as every precaution is taken to ensure their safety. This is morally permissible, but not the impressment of recruits since this is compulsory. Conscription, presumably, is morally permissible, if citizens have the option of leaving the country conscripting them or of conscientious objection. A presupposition of Kant’s practical imperative is our intrinsic value or dignity as persons. One basis of our inherent worth is our unique possession of reason and free will, making us valuable “above all price.” 5 Of all known creatures we alone are endowed with these capacities. All other animals are determined in their behavior by the blind force of instinct. Because of our unique endowment, we are competent to discover the moral law (the highest function of reason for Kant), and so know our duty, and are free to act upon it, thereby making us the only moral beings in nature. An implication of Kant’s idea of human dignity (other than we should treat one another “always as an end and never as a means only”) is that a person ought to be beneficent, to “endeavor, so far as he can, to further the ends of others.” 6 Another basis of our intrinsic value is that all other things have value only because of their relationship to us, to our particular desires, needs, and ends. Thus, science and technology have value solely because they serve our desire to know and our need to control nature; the fine arts have value simply because they entertain and edify us; and the planet’s various resources have

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value only because they are indispensable to our survival. All things other than persons, then, have merely extrinsic or instrumental value, that is, their value depends on and is derived from something other than themselves. By contrast, our human value is utterly independent of and not derived from anything else. We have value in and of ourselves. 7 Kant’s third formulation of his moral principle is what he calls the “principle of reversibility,” which states that in our moral dealings we ought always to treat others as we ourselves would want to be treated, a restatement of the Golden Rule. Kant, then, lays down three distinct principles, tests, or criteria that we ought to apply to enable us to decide what we ought to do in any given case, viz., the categorical imperative (principle of universalizability), the practical imperative, and the principle of reversibility. Although they are ostensibly three distinct principles, Kant thought them simply three different formulations of the same principle, like the different facets of the same diamond or the different colors of the spectrum refracted by a single beam of sunlight. Whichever they are is an issue in the interpretation of Kant’s ethics that need not detain us. Yet, there is a common thread running through them inasmuch as they equally demand consistency on our part in making and acting on our moral judgments. Thus, according to the categorical imperative, we must ascertain what unexceptionable maxim we could rationally will everybody else to follow and then, to be consistent, we ought to follow ourselves. According to the practical imperative, we must treat all persons as being equal in dignity, which means our moral conduct toward others must be the same or consistent. And according to the principle of reversibility, our treatment of others should be consistent with how we would wish to be treated ourselves. Now whatever is stipulated by the moral law it is our duty to do. Kant distinguishes two kinds of duty, perfect and imperfect. A perfect duty is such that universalizing the maxim behind its violation would be contradictory and nullify the object of the duty. An example is keeping a promise. This is a perfect duty because its violation would entail both pledging to do something while intending not do it, a palpable contradiction. In willing promise-breaking as a universal law, the very concept of a promise would be nullified and so disappear: “For the universality of a law which says that anyone who believes himself to be in need could promise what he pleased with the intention of not fulfilling it would make the promise itself and the end to be accomplished by it impossible; no one would believe what was promised to him but would only laugh at any such assertion as vain pretense.” By contrast, an imperfect duty is such that universalizing the maxim behind it would not nullify the object of the duty but is simply one that one could not rationally will as a universal law. Kant’s example is the imperfect duty of cultivating our talents:

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[A man] finds in himself a talent which could, by means of some cultivation, make him in many respects a useful man. But he finds himself in comfortable circumstances and prefers indulgence in pleasure to troubling himself with broadening and improving his fortunate natural gifts. Now, however, let him ask whether his maxim of neglecting his gifts, besides agreeing with his propensity to idle amusement, agrees also with what is called duty. He sees that a system of nature could indeed exist in accordance with such a law, even though man . . . should let his talents rust and resolve to devote his life merely to idleness, indulgence, and propagation—in a word, to pleasure. But he cannot possibly will that this should become a universal law of nature or that it should be implanted in us by a natural instinct. For, as a rational being, he necessarily wills that all his faculties should be developed, inasmuch as they are given to him for all sorts of possible purposes.

Kant summarizes the distinction between perfect and imperfect duties as follows: Some actions [violations of perfect duties] are of such a nature that their maxim cannot even be thought as universal law of nature without contradiction, far from it being possible that one could will that it should be such. In others [violations of imperfect duties] this internal possibility is not found, though it is still impossible to will that their maxim should be raised to the universality of a law of nature, because such a will would contradict itself. 8

In enacting the maxims of our duties as universal laws in obedience to the moral law, we act, as it were, as legislators of laws binding all persons including ourselves in a “systematic union of different rational beings under common laws,” or a “realm of ends,” wherein persons are treated as ends in themselves. The categorical imperative stipulates that we “act according to the maxims of a universally legislative member of a merely potential realm of ends.” Membership in this realm means that we are subjects voluntarily submitting ourselves to its laws as well as sovereigns freely legislating its laws. The realm of ends, though only a theoretical ideal, can inspire us to engage in moral conduct, “for through the glorious ideal of a universal realm of ends-in-themselves (rational beings) a lively interest in the moral law can be awakened in us. To that realm we can belong as members only when we carefully conduct ourselves according to the maxims of freedom as if they were laws of nature.” 9 Kant rejects out of hand teleological ethics with its eudaemonism or hedonism, and the reasons he does so amount to a critique of both Aristotle’s aretaic ethics and Mill’s utilitarianism. He contends that happiness cannot be the goal of the moral life since it is unclear as to what exactly constitutes happiness. Happiness, says Kant, is a vague notion: “But it is a misfortune that the concept of happiness is such an indefinite concept that, although each person wishes to attain it, he can never definitely and self-consistently state

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what it is he really wishes and wills.” And since the goal is unclear, so are the means of achieving it. Moreover, actions proposed as merely possible means to attaining unclear goals cannot properly be commanded since it is not known whether they are necessary and sufficient for the goal’s attainment. Proposals of such actions fall short of qualifying as commands; they are at best counsels of prudence lacking the moral force of commands: “Hence the imperatives of prudence cannot, in the strict sense, command, i.e., present actions objectively as practically necessary; thus they are to be taken as counsels . . . rather than as commands . . . of reason, and the task of determining infallibly and universally what action will promote the happiness of a rational being is completely unsolvable.” 10 The prudent is distinct from the moral. (Note, though, that Aristotle considers prudence a moral virtue.) A further reason for his rejection of eudaemonism is that Kant is in quest of “the supreme principle of morality” that would apply equally to all rational beings, not just human, such as extra-terrestrial aliens like Star Trek’s Mr. Spock. This requires that it not be based on the facts of human psychology like our desire for and the constituents of our happiness which are specific to humanity: Is it not of the utmost necessity to construct a pure moral philosophy which is completely freed from everything which may be only empirical and thus belong to anthropology? That there must be such a philosophy is self-evident from the common idea of duty and moral laws. Everyone must admit that a law, if it is to hold morally, i.e., as a ground of obligation, must imply absolute necessity; he must admit that the command, “Thou shalt not lie,” does not apply to men only, as if other rational beings had no need to observe it. The same is true for all other moral laws properly so called. He must concede that the ground of obligation here must not be sought in the nature of man or in the circumstances in which he is placed but sought a priori solely in the concepts of pure reason. 11

Kant also parts company from Aristotle and the utilitarians over their conception of the sole intrinsic and unconditional good in the world. For them it is happiness, but for him it is a “good will,” or one bound by the moral law. Even otherwise estimable goods may be perverted to bad ends by a bad will: Nothing in the world—indeed nothing even beyond the world—can possibly be conceived which could be called good without qualification except a good will. Intelligence, wit, judgment, and the other talents of the mind, however they may be named, or courage, resoluteness, and perseverance as qualities of temperament are doubtless in many respects good and desirable. But they can become extremely bad and harmful if the will, which is to make use of these gifts of nature and which in its special constitution is called character, is not good. 12

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And even such acknowledged goods as knowledge and health may be corrupted by an ill will; thus biological knowledge may be used to produce agents of germ warfare, and the health of an able-bodied man may be used in the service of crime. Kant’s deontological ethics, though, is open to several objections, but I shall consider only those relevant to its application to just war theory. One objection is that Kant involves us in moral dilemmas as when two duties, equally absolute and obligatory, come into conflict such as when our duty to always tell the truth conflicts with our duty always to preserve human life. A second objection is that Kant slips inadvertently into a teleological justification of duties that runs counter to his commitment to deontologism. Both objections may be made specifically to Kant’s illustration of why we should always do the perfect duty of telling the truth and never lying. Here is James Rachel’s paraphrase of Kant’s “The Case of the Inquiring Murderer”: “Imagine that someone is fleeing from a murderer and tells you he is going home to hide. Then the murderer comes along and asks where the first man went. You believe that if you tell the truth, the murderer will find his victim and kill him. What should you do—should you tell the truth or lie?” 13 Kant answers unambiguously that you ought to tell the murderer the truth because lying is proscribed by the moral law and truth-telling is a perfect and unexceptionable duty determined by the categorical imperative. But his rationale for saying so is curious, coming as it does from a deontologist. He explains that if you lie to save the first man’s life you assume that the consequence of telling the murderer the truth will be the first man’s death. But it well may be that the intended victim did not go home but, on second thought, decided to keep running. If this is so, then telling the murderer the lie that his intended victim did not go home is to play right into the murderer’s hands and endanger the victim’s life. Kant’s advice, then, is because we can never know with certainty the consequences of our actions, we should play it safe by always abiding by the moral law—in this case, not lying. Here is Kant’s justification of his answer in his own words: After you have honestly answered the murderer’s question as to whether his intended victim is at home, it may be that he has slipped out so that he does not come in the way of the murderer, and thus that the murder may not be committed. But if you had lied and said he was not at home when he had really gone out without your knowing it, and if the murderer had then met him as he went away and murdered him, you might justly be accused as the cause of his death. For if you had told the truth as far as you knew it, perhaps the murderer might have been apprehended by the neighbors while he searched the house and thus the deed might have been prevented. Therefore, whoever tells a lie, however well-intentioned he might be, he must answer for the consequences [italics mine], however unforeseeable they were, and pay the penalty for them in a civil tribunal. . . . To be truthful (honest) in all deliberations, therefore, is a

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Kant’s justification for telling the truth to the murderer is not convincing, for four reasons. First, though he stresses the possible bad consequences of lying, Kant ignores completely the equally possible bad consequences of telling the truth. It could just as well have happened that the intended victim did go home, only to be found and killed by the murderer who was tipped off by your telling him the truth about the whereabouts of his victim. Second, though we can seldom have certain knowledge of the consequences of any of our actions, we can have highly probable knowledge, which is good enough for guiding our decisions. Suppose that my best friend and I go to a party and he gets drunk. Anticipating this result, I take the precaution of hiding his car keys to prevent his driving home and risking his life and the lives of others. If he asks me about the whereabouts of his keys, I lie, saying, “I do not know.” I may not know for certain the exact consequences of his driving home drunk, but I do know that there is a higher probability of harm resulting from his doing so than from my lying about the location of his keys. If I am thinking consequentially as an act utilitarian (but not as a rule utilitarian) 15 this is sufficient justification for my lie. Third, Kant, in his justification for telling the truth to the murderer by citing the possible bad consequences of lying, is contradicting his own principle that consequences, even beneficial ones, are irrelevant in determining what we ought to do. In arguing that as a general rule it is better to tell the truth because of the bad consequences of lying, Kant, ironically, sounds very much like a rule-utilitarian. 16 All that is relevant, according to Kant, is whether or not our action conforms to the categorical imperative irrespective of its possible consequences. And fourth, as illustrated by “The Case of the Inquiring Murderer,” Kant snags us on the horns of the moral dilemma of our being torn by two equally absolute but conflicting duties. On the one hand, we have the perfect duty to tell the truth, but on the other we have the equally perfect duty to preserve human life, together with the imperfect duty to “endeavor, so far as we can, to further the ends of others,” one being the preservation of their lives. If we seek to save the intended victim’s life, then we must tell a lie; but if we are committed to telling the truth at all costs, then we risk a man’s death. It is a classic case of “damned if I do, damned if I don’t.” Kant gives us no way to resolve conflicts between absolute and equally binding duties thus snagging us on the horns of moral dilemmas, i.e., in honoring one duty we must necessarily fail to perform another. In defense of Kant, Peter T. Geach has replied to the above criticism by claiming that the “The Case of the Inquiring Murderer” is an extreme and

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purely hypothetical case which is unlikely ever to occur. Geach has faith that God would not permit such conflicts between duties ever to occur: But suppose circumstances are such that observance of one Divine law, say the law against lying, involves breach of some other absolute Divine prohibition?”—If God is rational, he does not command the impossible; if God governs all events by his providence, he can see to it that circumstances in which a man is inculpably faced by a choice between forbidden acts do not occur. Of course such circumstances (with the clause “and there is no way out” written into their description) are consistently describable; but God’s providence could ensure that they do not in fact arise. Contrary to what nonbelievers often say, belief in the existence of God does make a difference to what one expects to happen. 17

However, two rejoinders may be made to Geach’s proposed defense: One is that his appeal to divine providence to assure us that we shall never be caught in the dilemma of having to choose between two incompatible duties violates the law of parsimony or Ockham’s (Occam’s) Razor 18 which stipulates that one should not by way of explanation assume the existence of something which itself is in need of explanation. If the existence of God is doubted or denied, then one can hardly take comfort in Geach’s assurance, an instance perhaps of wishful thinking. A second rejoinder is that recent history has proven Geach wrong about a conflict between duties such as Kant describes as never occurring. Thus, during the Second World War, Dutch fisherman, while smuggling Jewish refugees over to England, would be intercepted by German patrol boats. The German captains would ask their Dutch counterparts what they were carrying on board and where they were going. Now God obviously did not prevent the Dutch captains from being “inculpably faced by a choice between forbidden acts”—either lying and saving the lives of the Jewish passengers or telling the truth and causing their deaths. 19 G. E. M. Anscombe, though, suggests a way that Kant could have prevented putting us in such impossible moral binds: “. . . it never occurred to him that a lie could be relevantly described as anything but just a lie (e.g., ‘a lie in such-and-such circumstances’). His rule about universalizable maxims is useless without stipulations as to what shall count as a relevant description of an action with a view to constructing a maxim about it.” 20 An act of lying, as in “The Case of the Inquiring Murderer,” may result in the saving of lives. To describe the act of lying in such a case as lying simpliciter without qualification is to leave out a crucially relevant part of its description. It is not simply an act of lying but, more completely and accurately, an act of lying that might save a human life. And since the life saved is that of another, lying in this case is not strictly self-serving, which otherwise would compromise its moral value. Now we could not rationally will to universalize as a universal law the maxim that one might lie to defraud or bear false witness, but we

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could rationally will to universalize as a universal law the maxim that one might lie to save lives. Thus, Kant’s categorical imperative might have spared us such moral dilemmas if we had started with an adequate description of the act we consider performing and on that basis formulate the maxim to be universalized. Kant’s error is his supposition that moral precepts had to be absolute or unexceptionable; however, valid exceptions to precepts and maxims can be built into the very descriptions of the acts they inform. Thus, though lying is in principle wrong, lying to save a life constitutes a valid exception to that general rule; and though taking a human life is in principle wrong, killing in self-defense is a valid exception. We can still universalize these qualified maxims, such as, “Lying is wrong unless it is to save a life,” or, “Killing is wrong except in cases of self-defense.” What this means is that if I lie to save a life or kill in self-defense, then I will that everyone else might do so. If we break a moral law for some legitimate reason, then according to the categorical imperative I will that everyone else may break it for exactly the same reason. What, then, can be said in defense of Kant’s ethical theory? First, it fully honors human dignity by appealing to our rationality and freedom. Second, it shows that the exercise of reason is at the very heart of the moral life inasmuch as to live by the categorical imperative is fundamentally a matter of being consistent in all our doings. In the name of consistency, no one is exempt from the moral law and the constraints on our conduct are rational. Kant conceives of the moral life as fundamentally a rational life, and of the rational life as pre-eminently a moral life. Third, more emphatically than utilitarianism, Kant’s deontological ethics preserves the value of justice and respects human individuality. By strictly forbidding using persons as means to ends, there is no question of using them as scapegoats, however expedient. Fourth, Kant’s ethics preserves inviolate the autonomy and integrity of the moral order. Classical utilitarians reduce moral values to nothing more than matters of pleasure or pain, happiness or misery. In their reductionism, morality is nothing other than a function of human psychology. The moral realm is dissolved in the psychological. Kant makes no such reduction of moral value to psychological states. For him, moral obligation, in its possible opposition to our desires and indifference to our felicity, reveals itself as something utterly distinct from and irreducible to our psychology. Kant in no way compromises the majesty of the moral law. Kant’s ethics has several implications for the justice of war. First, his characterization of promise-keeping as a perfect duty would require that nations honor their promises in the form of covenants and treaties, come what may. If a nation reneges on a treaty, it enacts the maxim behind that violation as universal law, thereby permitting others nations to do likewise when convenient. However, reneging on a treaty is as irrational as breaking a promise and for the same reasons: It is self-contradictory, and the very con-

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cept of a treaty would be nullified and lose its force. For Kant, a nation has an unconditional duty to respect its treaties. Second, his practical imperative stipulating that persons ought to be treated not as means to ends but as ends in themselves would serve to justify a war in defense of human rights. To honor the rights of persons is to respect their dignity as such, but depriving them of their rights is to derogate from it; it is to treat them as less than persons, which may lead to their treatment as pawns in some political scheme, to treat them as means to an end rather than as ends in themselves. Third, Kant’s belief that only motives arising from a good will and informed by the moral law have and confer moral worth on the ensuing actions would remind those with the authority to declare and wage war that the justice of their cause depends on the purity of their motives in exercising that authority, that is, on their having the right intention. They should be careful that the purity of their motives is not sullied by ulterior ones that are less than honorable. Fourth, Kant believes that the moral law should apply no less to the conduct of nations as to that of individual persons. His idea of a “realm of ends” wherein all persons voluntarily adhere to the moral law by obeying the practical imperative, is somewhat analogous to his idea of a federation of nations, though the realm of ends is composed of individuals whereas the international federation is composed of nations to which individuals are subordinate. He published this idea in his Toward Perpetual Peace: A Philosophical Sketch (Zumewigen Frieden) of 1795 where he proposed that the nations of Europe should form themselves into a union or league and pledge to settle any dispute or conflict among them not by force of arms but through the impartial adjudication of an international court of justice. Nations would be legally and morally bound by the decision of this court. Kant thus anticipated by more than a hundred years Woodrow Wilson’s League of Nations, the United Nations, and the International Court of Justice at The Hague. ETHICAL INTUITIONISM William David Ross belonged to a British school of normative ethical theory known as ethical intuitionism that dates from the early eighteenth century and enjoyed its heyday in the first three decades of the twentieth century. Ross’s The Right and the Good is the classic formulation of that theory. Ethical Intuitionism maintains that knowledge of what is good and what is right is not ratiocinative, either inductively as in utilitarianism or deductively as in deontologism, but is self-evident. In other words, moral precepts that proscribe murder and enjoin justice are self-evidently true, requiring no argumentation to render them so.

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Ross underwrites the intuitions of what I have dubbed something like our moral common sense in maintaining that the “moral convictions of thoughtful and well-educated people are the data of ethics just as sense-perceptions are the data of a natural science.” 21 The judgments issuing from these moral convictions represent “the moral reflection of many generations, which has developed an extremely delicate power of appreciation of moral distinctions.” These moral distinctions, which are neither provable nor disprovable, constitute the intuitive criteria whereby any ethical theory can be assessed. 22 A problem with Kant’s ethics, as we have seen, is that it provides no way of resolving conflicts between absolute duties, such as the conflict between the duties of honesty and of preserving human life as in “The Case of the Inquiring Murderer.” In that case, we are caught on the horns of the dilemma of necessarily violating one duty in the very act of performing another. Ross provides just such a way of escaping this dilemma with his distinction between so-called prima facie duties and actual duties. “Prima facie” means literally “on first face” or “apparently so.” Prima facie duties, like categorical imperatives, are those which, when considered in themselves in the abstract and in isolation, are unconditional or absolute and incumbent on us to perform, unless they conflict with other such duties. Thus, telling the truth is a prima facie duty which, on face value, we ought always to do. Prima facie duties, though, may come into conflict as in the “Case of the Inquiring Murderer” where our duty always to tell the truth clashes with our duty always to preserve human life. In such cases, according to Ross, one of the conflicting duties will be intuitively more compelling or obligatory than the other, and so this becomes our actual duty, the one that we ought to perform. Note that what may be our actual duty in one situation may not be so in another. The context of our actions is crucial in determining which of two conflicting prima facie duties should take precedence as our actual duty. Thus, when we are under oath in court, we have the greater obligation to tell the truth, even though our testimony may incriminate someone whom we believe innocent. However, in the case of lying to save a life, we have the greater obligation to save a life than telling the truth. Depending on the circumstances, then, an otherwise prima facie duty must give way to another. Ross distinguishes between different kinds of prima facie duty. First, there are what he classifies as duties of fidelity, consisting of those duties which arise because of a prior declaration. If I made a promise, then I now must keep it. If I signed a contract, then I now must honor it. Second, there are what he calls duties of reparation, consisting of redressing wrongs to others. If I damage your property, I ought to pay for its repair or replacement. Third, there are what he designates as duties of gratitude, those arising from benefits we have received from others. If someone does me a favor, I am obliged to show my gratitude in a suitable way. These duties of fidelity, reparation, and gratitude derive their obligatoriness from things done in the

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past, either by ourselves or by others. But there are other duties enumerated by Ross which are derived not from what we or others did in the past, but are concerned with what we should do in the future. One such forward-looking duty is beneficence, the obligation to benefit others whenever the opportunity presents itself. Another such duty is non-malfeasance, the obligation not to harm others or their property. An additional duty of futurity is acting justly toward others which requires from the hands of those with the requisite resources the equitable distribution of goods and favors based on the relative merits of their recipients, though Ross adds the rider, “The fact or the possibility of a distribution of pleasure or happiness (or of the means thereto) which is not in accordance with the merit of the persons concerned, in such cases there is a duty to upset or prevent such a distribution.” 23 One final future-oriented duty is self-improvement, the obligation to strengthen our moral character by habitually doing our duty and to develop our minds by acquiring knowledge and cultivating wisdom. When prima facie duties come into conflict some for Ross are more obligatory than others. Thus he regards the duty of non-malfeasance as more obligatory than beneficence: “We should not in general consider it justifiable to kill one person in order to keep another alive, or to steal from one in order to give alms to another.” 24 For Ross, determining which duty is the more obligatory is a matter of intuition. Thus he thinks that it is self-evidently true that the duty of non-malfeasance takes precedence over that of beneficence, though it is not so in some cases. Ross’s ethical intuitionism, though, is not without its difficulties. One concerns his list of prima facie duties: How do we know that his list is complete? 25 According to Ross we have a duty of gratitude for good done to us by others, but we have no correlative duty of revenge for wrongs; though we may have the duty to bring to justice those who have wronged us illegally. But why exclude revenge? Though contrary to the Christian ethos, there are some ethical views that permit and even demand it. In classic tragedies such as Hamlet and Aeschylus’s Oresteia, revenge is represented as a moral imperative. Ross provides no criterion for either including as prima facie those duties he does or excluding others, a provision that would serve to justify and unify his list of duties. He might have appealed to intuition as his criterion. Thus, we are left with the suspicion that Ross’s list of prima face duties is arbitrary, though still useful. Another difficulty concerns his appeal to intuitionism in determining the degree of obligatoriness of duties. He believes that it is self-evidently true that some conflicting duties are more obligatory than others. However, it is not clear that this is so. Arguably, the only truths that are self-evident are truths in mathematics and logic such as 2+2=4 and the principle of noncontradiction, i.e., no statement can be simultaneously both true and false. Intuition is a notoriously vague, unreliable, and even hazardous method for

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establishing truth or determining how we ought to act. Intuition may be confused with personal feeling, which is too subjective a criterion for determining what is right or wrong. Furthermore, intuitions about the same situation may differ as in the case of cross-cultural differences. For instance, some Islamic cultures sanction honor killings: If a woman is raped, then a member of her family must kill her in order to restore the family’s honor. The intuition of supporters of this practice is that the duty of restoring the family’s honor takes precedence over the duty of preserving innocent life—in their eyes, honor has higher value than life. But the intuition of Western opposers of honor killing is the exact opposite, and it is consequently roundly condemned as immoral with legal sanctions against it. We have, then, the impossible difficulty of deciding whose intuition in such cases is the correct one, with each side’s thinking its own intuition as self-evidently true and unable to think otherwise. And if in order to overcome this difficulty we appeal to reasons as to why honor killing is wrong (or right), we are no longer appealing solely to intuition but are engaged in ratiocination. Another difficulty with Ross’s ethical theory, related to the above, is when he claims that the obligatoriness of certain prima facie duties outweighs others when in conflict, such that the duty of non-malfeasance outweighs the duty of beneficence, e.g., “We should not in general consider it justifiable . . . to steal from one in order to give alms to another.” As a general rule this may be so, but consider the case of a Robin Hood stealing from those who have enriched themselves fraudulently in order to succor the poor. Is it as intuitively obvious here that non-malfeasance is more obligatory than beneficence? Ross provides no clear criteria whereby to determine the degree of obligatoriness, no standards to help us decide which of the two conflicting duties is the more obligatory. This problem is exacerbated in cases where the conflict is between incommensurable duties, such as the backward-looking duty of fidelity and the forward-looking duty of beneficence. The above difficulties notwithstanding, Ross’s ethical intuitionism has its merits. One is its principle that the “moral convictions of thoughtful and well-educated people are the data of ethics” comports well with the ways we actually make moral judgements and decisions and with our commonsensical intuitions as to what is right or wrong, good or bad. A second merit is its avoidance of the pitfalls of too rigid formal systems of ethics such as the potential conflict between utility and justice in utilitarianism, and the irresolvable conflict between duties in Kantian ethics. And a third is that his ethical theory acknowledges that there is more to morality than can be reasoned out or put into so many words or reduced to a few simple (or simplistic) formulae like the principle of utility or the categorical imperative. Our moral judgments are complex, and informed by much that is contained, as it were, in our collective moral Unconscious or, in Edmund Burke’s phrase,

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“the collected reason of ages” 26—to parody Hamlet, there is more to the moral universe than is dreamt of in your teleological or deontological theories. DIVINE COMMAND THEORY The divine command theory is a deontological theory of ethics insofar as it proposes a divinely ordained law to which obedience is owed precisely on that account. This is the earliest normative ethical theory, though its oldest forms were more assumptions than rationally justified theories. Ancient peoples typically believed that their moral codes were the gifts of gods, divine edicts whose authority derived from their supernatural origins. They were thought to have been revealed to humanity through the mediumship of divinely appointed prophets, seers, and sibyls. Moral codes stemming from antiquity are the Babylonian Code of Hammurabi, the biblical Decalogue, and the Hindu Book of Manu. These codes were regarded by the cultures from which they emerged as being unique, objectively valid, absolute, and universal. Divine command theorists, whatever their creed, similarly claim that the source of moral values is the divine will, conceived monotheistically. Whatever God wills is morally good or obligatory, whatever he forbids is morally evil and impermissible, and to whatever he is indifferent is morally neutral and permissible. 27 Thus murder, theft, and adultery are morally wrong because, and only because, God forbids them; whereas justice and mercy are morally good only because God approves them. According to the Swiss Protestant theologian, Emil Brunner, “There is no ‘intrinsic’ Good. What God does and wills is good, and all that opposes the will of God is bad. The good has its basis and its existence solely in the will of God.” 28 Indeed, it is not inconceivable that God might change his mind and command murder, as when he commanded Abraham to kill his son Isaac, thereby making murder good and mandatory. The divine command theory is first broached as a philosophical theory in Plato’s dialogue, Euthyphro. Socrates and Euthyphro are attempting to define “holiness.” Euthyphro proposes the definition that holiness is whatever is approved (willed) by the gods. Socrates objects that this definition is ambiguous: Does Euthyphro mean that something is holy precisely because it is approved by the gods (in other words, their approving it at all is the cause of its being holy), its being holy is the effect of their approving it? Or, does he mean that the gods approve something because it is already holy; that is, its being antecedently holy is the cause of the gods approving it, their approving it is the effect of its prior holiness? 29 Generalizing from the case of holiness (a religious value), we can say either that something is morally good or right

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because God wills or commands it so, or that God wills or commands it because it is morally good or right to start with. Either moral value depends on God’s will or God’s will depends on moral value. In Euthyphro, Socrates starkly poses the two options: either the source of value lies in the divine will, or elsewhere. Both Socrates and Euthyphro choose the latter alternative, though without explanation as though this were the only viable option. The antiquity of the divine command theory and its association with the world’s great religions have not spared it from the following criticisms: 1. It renders nonsensical God’s moral attribute of goodness. According to the divine command theory, if God acts from good motives, or for any good reasons or ends, then they are good only because God wills them so. Thus to say that X is good is to say that God wills it. And to say further that God’s willing X to be good because it was done from good motives or for good reasons is to say that they are good only because he wills them so. Consequently, God cannot act from good motives or for good reasons because to suggest that he does is to beg the question or engage in circular reasoning: “God’s will is good” means nothing more than “God’s will is willed by him.” Consequently, God cannot act from good motives or for good reasons other than his willing them as such. Now according to our moral common sense, anybody who acts, not from good motives or for any good reason but only from an impulse or arbitrary will to act, can hardly be said to be acting morally at all; instead, that person is acting blindly, mechanically, or nonrationally, which is not the way God is conceived of as acting. Furthermore, God is classically defined as being perfectly good, but according to the divine command theory God’s being good means nothing more than that he wills himself so. Thus, on the divine command theory, the sole intrinsic good in the world, that which is good in and of itself and from which all goodness is derived, is the divine will. No further inquiry as to why it is good is possible without begging the question. 2. It makes purely arbitrary the qualities of moral goodness, rightness, and obligatoriness. One’s character, disposition, or trait is deemed good or bad, or one’s actions deemed right, wrong, or obligatory, only because God wills or declares it so. Simply by willing so, God could overturn the scale of values by making vice virtue and virtue vice. The divine command theory’s reduction of moral value to arbitrariness, albeit divine, has two paradoxical implications. First, it destroys the foundation of God’s own moral goodness, thereby rendering him unworthy of our praise and honor, a criticism made by Leibniz: “In saying, therefore, that things are not good according to any standard of goodness, but simply by the will of God, it seems to me that one

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destroys, without realizing it, all the love of God and all his glory; for why praise him for what he had done, if he would be equally praiseworthy in doing the contrary.” 30 Second, it destroys the foundation of any moral goodness on our part. 31 Thus, we ought to do what is right or refrain from doing what is wrong only because God commands or forbids it, respectively. And if we ought to obey his commands solely because he is all-powerful, then our obedience is exacted by fear. Fear, though, is not a moral motive; to obey from fear is not to act morally. The performing animals in a circus do exactly that. For Kant an act done from a motive like fear is an heteronomous act, one in bondage to our desire, not an autonomous act, one that is free because wholly motivated by respect for the moral law. This reduces moral value to the squalid principle of might makes right. “But what makes might right?” we may legitimately ask. And third, if moral values are merely arbitrary, then they cannot admit of any rational justification. The only rationale that can be given for doing right and refraining from doing wrong, for being morally good instead of bad, is God’s will. And because we cannot justify that without circularity, then all rational argument comes to a screeching halt. Consequently, some critics have pronounced the divine command theory as a bogus normative ethical theory. As we have seen, one of the minimal requirements for an adequate ethical theory is that it provides reasons or logical grounds for moral evaluations. 3. A command, in and of itself, cannot create a moral obligation to obey it. If a drunkard orders me off the street, I owe him no obedience. A command’s moral obligatoriness depends on the character of the commander. If I am under his or her legitimate authority, or if he or she is worthy of obedience because of superior knowledge, skill, or wisdom, then I have a duty to obey. We ought to obey God’s commands, then, not because they are commands, but because they are God’s commands. If God is perfectly good, then we, as his inferior creatures, are obligated to obey him. We obey him not from the imperativeness of his commands, but from his worthiness to be obeyed; however, the divine command theory prevents us from obeying God for any reason other than the command itself. If we obey from consideration of God’s worthiness or goodness, being itself the result of a prior divine command, then we are back in our vicious circle. 4. How do we know that a moral law that is said by its adherents to be a divine command is in fact so? This is an epistemological criticism. There are a variety of moral codes such as those of Hammurabi, Deuteronomy, Manu, and Islam, each of which claims to be willed by God. Moreover, they contain different laws, and a law in one code may contradict a law in another. Since each of these codes claims

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divine authority, then on the divine command theory they must be adhered to. But in cases of contradictory laws, only one can be right (or both may be wrong). But which one? They cannot all be equally divine commands. If they are, then either God contradicts himself or there are many gods willing different, even contradictory, things. But neither an irrational God nor polytheism is acceptable to divine command theorists. The divine command theory provides no criteria or tests whereby to distinguish the code revealed by God from that which is not, to distinguish the authentic from the spurious. A related epistemological difficulty is this: Assuming that we know which moral code is divinely revealed, how do we know that its laws carry equal weight and so are equally binding? The same religion may split into factions over a disagreement concerning the status of a law in their common code. For example, in the Old Testament, God clearly commands his menfolk to wear earlocks and hats, which Hasidic but not Reformed Jews obey. Who is right, and how can we tell? Furthermore, a religion may split into opposed camps over the interpretation of the same law. The Decalogue decrees, “Thou shalt not kill.” The Amish, Mennonites, and Quakers interpret this decree as applying even to enemies of their country, and so are pacifists. However, most members of other Protestant denominations and Roman Catholics interpret it as excluding foreign enemies and so allow for a just war. Again, the divine command theory is powerless to resolve this epistemological conundrum. 5. It violates the principle of Ockham’s razor or parsimony, a principle of explanatory economy which states that our explanations should contain no unwarranted assumptions. Thus, to explain the origin of moral laws by reference to God is to assume his very existence. But this is a gratuitous assumption, and though plausible reasons may be given for its acceptance, equally plausible reasons may be given for its rejection. 6. It makes it impossible for atheists to be moral or, if they are, they are by accident and can give no explanation for their being so. According to the divine command theory, I can be moral and do what I ought only if I know what God wills. But if I lack belief in God, there can be no question of my consulting his will. Atheists can be moral inadvertently through adherence to the legal code where it agrees with the moral code, such as when it proscribes murder and theft; however, they cannot be moral for the right reason, which is their willing conformity to God’s will. And, in their conduct lying outside the province of the civil law, they can hardly know whether they are acting morally or not because they act in ignorance of God’s commands. Atheists, then, are morally blind. This implication of the divine command theo-

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ry is clearly false. There are persons who, though atheists or agnostics, live morally exemplary lives. Buddhism, one of the world’s great religions, whose moral code rivals Christianity’s, is an atheistic religion. Does this mean that Buddhists are morally stunted because they typically do not believe in God? Furthermore, many normative ethical theories, in particular utilitarianism, are purely secular in outlook and do not depend on the existence of a deity for their validation. Incidentally, this implication of the divine command theory that atheists must necessarily be immoral, amoral or, at best, morally blind, has had some unfortunate legal and political applications. At some places and times, even in the United States, people have been disqualified from holding public office or positions of public trust because of their atheism. Even John Locke, one of the most liberal minds of the seventeenth century, argues persuasively for religious toleration. He contends that the state should allow the various Protestant sects, Jews, and even Catholics the freedom to practice their faith, yet he denies that privilege to atheists. The rationale behind such policies was that atheists are morally suspect. 32 7. It confuses morality with religion. The “moral institution” (to borrow Bishop Butler’s phrase) of life is fundamentally distinct from religion. Some religions, such as Voodoo and Satanism, are amoral or even immoral. And even in the world’s great religions morality, though essential, is only part of being religious. Morality concerns our relationship with our fellow human beings, but religion is concerned principally with our relationship to a sacred or transcendent order which is typically represented by gods or God. Thus, in Deuteronomy, there are the specifically “moral” commandments which prescribe our relationship with our neighbor, e.g., the proscriptions against murder, theft, and adultery; but then there are the specifically “religious” commandments which prescribe one’s relationship to God, e.g., the forbidding of idolatry and the honoring of the Sabbath. The fundamental distinction between morality and religion is made by Plato in Euthyphro, which is that morality has to do with duties to one’s neighbor, whereas religion has to do with duties to God. 33 The clearest way to understand the distinction between morality and religion, and to see that the moral is not reducible to an exercise of the divine will, is that if you justify the rightness of conduct by reference to God’s will, I can still question its rightness. You declare an act right because God commanded it, yet I can still legitimately ask whether it is actually right. God commanded Abraham to sacrifice Isaac, but one can still inquire as to whether Abraham’s obedience to that command was in fact right. Indeed, we can even question any of God’s commands and ask wheth-

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er they are really moral. This suggests that morality is irreducible to divine volition and exists independently of it. 34 Religion, though distinct from morality, is not completely irrelevant to it. It can lend its sanction and authority to our moral principles. It can provide sometimes needful incentives to being moral, especially for children. Religion can give its imprimatur to the moral life; however, it cannot supplant morality or totally absorb it within itself. Notwithstanding the above criticisms of it, what can be said in favor of the divine command theory? One of its merits is that it puts our moral principles on a firm footing. We can look to the Ten Commandments, for example, and confidently declare that here indeed is an infallible guide to life. We can have confidence in the absolute rightness of a moral code founded on divine fiat. Our moral values will be no less destructible than God himself. They will be like the proverbial rock in the midst of the shifting sands of time and opinion. A second merit of the divine command theory is that it naturally lends itself to the moral education of the young, giving strong backing to those moral precepts we might endeavor to inculcate in our children. Finally, it provides an effective incentive to be moral, especially for the immature or the philosophically unsophisticated, although it does smack of the carrot and the stick. The divine command theory of ethics is particularly germane to natural law theory. As will be seen in the next chapter, the voluntaristic conception of natural law advocated by Duns Scotus and William of Ockham is an expression of the divine command theory. According to them, natural law derives its authority and validity simply by its being commanded by God; it is nothing other than God’s will that determines the content of moral laws for without that divine imperative they would not exist. In summary: There are then dispositional and decisional normative ethical theories. They may be teleological if they consider the consequences of acts as normative. Or they may be deontological if they consider duties and motives dictated by the moral law as normative. The paradigm of a dispositional theory is Aristotle’s aretaic ethics that concentrates on those virtues that make for the good life and the attainment of happiness. A major problem besetting this theory is that some obvious virtues and vices elude Aristotle’s definition of virtue as the mean between the extremes of deficiency and excess. But it has the merit of putting us in the way of being willing to act morally because our character is shaped by the virtues. One example of a decisional ethical theory is utilitarianism, either act or rule, which formulates the principle of utility as a rule of conduct to promote the greatest happiness of the greatest number of people. The main problem with this, though, is that utility may conflict with justice. Yet it has the merits of recognizing that our actions do have consequences that need to be reckoned with and of providing

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a clear and effective criterion whereby to resolve moral conflicts, particularly those arising in the social and political spheres. A second example of a decisional theory is Kant’s deontological ethics which elevates the moral law, expressed in the categorical imperative, as an unconditional rule of conduct. However, this uncompromising theory permits no escape from moral dilemmas arising from the conflict between absolute duties. Its chief merits lie in its honoring human dignity and the demands of justice by forbidding the use of human beings as means to ends, and in preserving the integrity and universality of the moral realm by its strict separation from human psychology. A third example of a decisional theory is Ross’s ethical intuitionism which maintains that the knowledge of good and evil is derived from our intuition and that our commonsensical moral precepts are self-evidently true. Ross’s theory does allow escape from the ethical dilemmas resulting from Kant’s ethics by using our moral intuition to help us decide between otherwise prima facie duties. But the difficulty here is that our intuitions, moral and others, may differ, and are notoriously subjective and unreliable. Among the advantages of Ross’s intuitionist ethics is that it escapes the pitfalls associated with the more ratiocinative theories of utilitarianism and deontological ethics, accords well with our commonsensical moral intuitions, and appreciates the complexity of our moral judgements. I turn now in the following four chapters to the theory of natural law in its ethical sense as well as in its metaphysical, political, and legal senses. NOTES 1. Immanuel Kant, Foundations of the Metaphysics of Morals, trans. Lewis White Beck, ed. Robert Paul Wolf (Indianapolis, IN: The Bobbs-Merrill Company, Inc., 1969), 44. 2. Whether Kant’s three distinct formulations of his moral principle are in fact different formulations of the same principle rather than three different principles is a matter of controversy. 3. Kant, Metaphysics of Morals, 54. 4. Ibid., 55. 5. Note that Kant’s bias towards reason and free will as constituting our intrinsic worth favors humans over all other sentient beings or animals, a favoritism Bentham rejected. 6. Kant, Metaphysics of Morals, 55. 7. Kant here echoes Aristotle who believed that means are inferior to their ends they subserve because they are subservient or as slaves to the ends, their masters. 8. Kant, Metaphysics of Morals, 46, 46–47, 47. 9. Ibid., 58, 65, 93. 10. Ibid., 40, 41. 11. Ibid., 5-6. 12. Ibid., 11. 13. James Rachels, The Elements of Moral Philosophy, 2nd ed. (New York: McGraw-Hill, 1993), 117. 14. Immanuel Kant, Critique of Practical Reason and Other Writings in Moral Philosophy, trans. and ed. Lewis White Beck, “On a Supposed Right to Lie from Altruistic Motives” (Chicago: University of Chicago Press, 1949), 348. Note, though, that the issue involves whether the consequences are incidental or determinate. If they are incidental, then the value of

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truth-telling does remain absolute; but if they are determinate, then the value of truth telling becomes relative. So long as they are not determinate they do not compromise Kant. 15. Though a rule-utilitarian might justify lying to the drunk friend as a justifiable exception to the general rule of truth-telling which remains intact. 16. Mill remarks that Kant is, in fact, a virtual utilitarian: “Nor is there any school of thought which refuses to admit that the influence of actions on happiness is a most material and even predominant consideration in many of the details of morals, however unwilling to acknowledge it as the fundamental principle of morality and the source of moral obligation. I might go much further and say that to all those a priori moralists . . . , utilitarian arguments are indispensable. . . . I cannot help referring, for illustration, to . . . , the Metaphysics of Ethics by Kant. This remarkable man, . . . does, in the treatise in question, lay down a universal first principle as the origin and ground of moral obligation; . . . . But when he begins to deduce from this precept any of the actual duties of morality, he fails, almost grotesquely, to show that there would be any contradiction, any logical (not to say physical) impossibility, in the adoption by all rational beings of the most outrageously immoral rules of conduct. All he knows is that the consequences of their universal adoption would be such as no one would choose to incur.” See John Stuart Mill, Utilitarianism, in Essays on Ethics, Religion and Society, ed. J. M. Robson (Toronto: University of Toronto Press, 1969), 207. 17. Peter T. Geach, God and the Soul (London: Routledge and Kegan Paul, 1969), 128. Incidentally, Geach makes a nod here to natural law. 18. This principle, formulated by the English philosopher and theologian, William of Ockham, “states that, among alternative explanations, the simplest one is the best. Ockham emphasized the importance of keeping the number of entities hypothesized in an explanation to an absolute minimum.” (Patrick J. Hurley, A Concise Introduction to Logic, 12th ed. (Stamford, CT: Cengage Learning, 2015), 148. 19. This rejoinder to Geach is made by Rachels in Elements of Moral Philosophy, 124. 20. Elizabeth Anscombe, “Modern Moral Philosophy,” 2. 21. Ross’s statement, “moral convictions of thoughtful and well-educated people are the data of ethics just as sense-perceptions are the data of a natural science,” is reminiscent of Aristotle’s statement, “Each person judges nobly the things he knows, and of these he is a good judge. He is a good judge of a particular thing, therefore, if he has been educated with a view to it, but is a good judge simply if he has been educated about everything.” 22. William D. Ross, The Right and the Good (Oxford: Clarendon Press, 1973), 41, 20–21n1, 40. Note that Ross’s appeal to the authority of the collective moral wisdom of humanity is reminiscent of Mill’s observation that “mankind must by this time have acquired positive beliefs as to the effects of some actions on their happiness; and the beliefs which have thus come down are the rules of morality.” 23. Ibid., 21. 24. Ibid., 22. 25. I owe this criticism to John Hospers’ Human Conduct: An Introduction to the Problem of Ethics (New York: Harcourt, Brace & World, 1961), 305. 26. Edmund Burke, Reflections on the French Revolution (London: J. M. Dutton & Sons, Ltd., 1910), 92. 27. It should be pointed out that divine command theorists distinguish divine commands from divine willings. Commands are codified, as in the Mosaic code, and are typically communicated through some religious institution. Thus the divine command theory, as an ethical theory, concerns commands. 28. Emile Brunner, The Divine Imperative: A Study in Christian Ethics, trans. Olive Win (Philadelphia, PA: The Westminster Press, 1947), 53. Brunner’s view is theological volunteerism in contrast to theological objectivism. These represent the two horns of the dilemma in Euthyphro. Robert M. Adams sought a way out of this dilemma with his modified divine command theory of ethics. 29. Plato, Euthyphro, in The Collected Dialogues of Plato, eds. E. Hamilton and H. Cairns, Bollingen Series LXXI (Princeton, NJ: Princeton University Press, 1961), 178. 30. Gottfried Wilhelm Leibniz, Discourse on Metaphysics, in Basic Writings, trans. George R. Montgomery (La Salle, IL: The Open Court Publishing Co., 1968), 4–5.

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31. This follows only if a normative standard can be evoked other than God’s will or command. But even if that is not the case, to say that one’s moral goodness depends on God’s will is to beg the question. 32. “Lastly, Those are not at all to be tolerated who deny the Being of a God. Promises, Covenants, and Oaths, which are the Bonds of Humane Society, can have no hold upon an Atheist. The taking away of God, though but even in thought, dissolves all.” From John Locke, A Letter Concerning Toleration and Other Writings, ed. Mark Goldie (Indianapolis, IN: Liberty Fund, Inc., 2010), 52–53. 33. Euthyphro explains his understanding of how religion differs from morality, with respect to the virtue of justice, to which Socrates assents: “Well, then, Socrates, I think that the part of justice which is religious and holy is the part that has to do with the service of the gods; the remainder is the part of justice that has to do with the service of mankind.” From Plato, Euthyphro, in The Collected Dialogues of Plato, eds. E. Hamilton and H. Cairns, Bollingen Series, LXXI (Princeton, NJ: Princeton University, 1961), 181. 34. With respect to this, Kierkegaard, writing pseudonymously, proposed the teleological suspension of the ethical according to which a divine command issuing from the divine will is higher than and trumps any moral law.

Chapter Five

A Brief History of Natural Law I Ancient Doctrine and Theory

DESCRIPTION Natural law serves variously as a metaphysical, ethical, political, and legal principle, consequently deriving its meaning from these different contexts. Traditionally it is presumed to have a transcendent and supernatural lawgiver identified with God (though its more recent incarnations do not necessarily presume this), and to be consonant with and discoverable through reason. Metaphysically considered, the doctrine or theory of natural law 1 is that the universe is a well-ordered cosmos governed by physical laws. Natural law comprehends the most general principles of order and rationality underlying and regulating not only nature but human nature as well. It belongs to what the pre-Socratic Greek philosopher Heraclitus calls Logos. Like the physical laws of nature they are descriptive (though more comprehensively so) insofar as they tell how things are, but unlike them they are also prescriptive, insofar as they dictate how things ought to be. Ethically considered, the doctrine or theory of natural law affirms, against moral relativism and subjectivism but in accord with deontologism, that there exists an objective, universal, and absolute system of moral laws. This moral system is objective insofar as its existence is independent of the human mind and its subjectivity; universal insofar as it is binding on all rational beings in all places and times; and absolute inasmuch as it is invariable. These moral laws govern (or ought to) human behavior much as scientific laws govern the behavior of natural phenomena like particles, elements, and cells. The doctrine of natural law affirms that moral laws are somehow entailed by both 53

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nature and human nature insofar as they are rational. Its claims to objectivity and universality notwithstanding, the idea of natural law has evolved in response to changes in the prevailing climate of opinion. In its classical premodern form in the Greco-Roman and Medieval periods it was rooted in metaphysics and theology, only to become increasingly empirical and secularized from the seventeenth century to the present day. Legally considered, the doctrine or theory of natural law distinguishes between natural laws, those derived from God and human reason, and what are variously known as positive, civil or statutory laws, those enacted by legislatures. Natural law, being absolute and universal, transcends and trumps positive law in case of conflicts between them. The doctrine of natural law “is aimed at affirming that such things as human responsibilities and obligations, as well as human rights and ‘entitlements,’ are more than a mere affair of human convention or human agreement, and this no matter how enthusiastic or how widespread may be the acceptance of those conventions and agreements.” 2 These things are derived not from merely local convention or custom but, on the contrary, from universal and objective prescriptions. Natural law provides an objective standard for evaluating the justice of any human-made legal code. The orders of natural and positive law to some extent overlap insofar as positive law presupposes some natural laws which it enacts, e.g., its proscriptions against murder and theft, for example. The disparity between natural law and human law is as plain as day when the latter is patently unjust and the justice represented by natural law is recognizable as such. Politically considered, the doctrine or theory of natural law, which maintains the independence of natural law from, and transcendence to, any particular socio-political order, provides a check on unjust positive laws, and a moral basis for calls for reform in the political order aimed at greater social justice and the honoring of human rights such as the American civil rights movement headed by Martin Luther King, Jr. And as both a legal and political principle, natural law has inspired the present-day system of international law regulating treaties and war thereby becoming a mainstay of classical just war theory. Natural law is invoked, at least implicitly, in war-crime trials. In the case of the Nuremberg Trials (1945) the defendants, some of whom had been judges in the German legal system, claimed immunity from prosecution for their complicity in crimes against humanity because they had no choice but to follow the laws of Germany. The moral rationale for putting them on trial was that in obeying the laws of their own nation they had transgressed a law higher than any national law, namely, the moral or natural law. At the outset some distinctions need to be made in order to avoid ambiguity, which has been the source of confusion in discussions of natural law. Two concern the term “natural.” In the Greco-Roman and Medieval periods, it meant either characteristics or activities of natural phenomena like organ-

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isms such as those making for their continuance or survival, which is its descriptive meaning; or, it meant certain moral qualities like justice specific to rational beings such as humans, which is its prescriptive meaning. “Natural” was also contrasted with what is artificial or conventional such as human-made laws and customs. Another pair of related distinctions concerns the term “natural law.” “Natural law” in its descriptive sense means those laws governing natural phenomena and their operations such as gravity and reproduction of species; whereas natural law in its prescriptive sense means those laws regulating human behavior. Prescriptive natural law is contrasted with positive or civil law, which is law legislated by governments. By the way, a synonym of “natural law” is “law of nature.” And what today are referred to as scientific laws are specifications of descriptive natural law. A further distinction running throughout its history is that between the rationalist and voluntarist conceptions of natural law. In the rationalist conception, natural law is conceived of as originating in either divine or human reason; whereas in the voluntarist conception it is conceived of as originating in the divine will. This distinction, you will remember, is broached in Plato’s Euthyphro where the interlocutors are inquiring into the meaning of “holiness.” The question there, expressed in a modern idiom, is whether something is morally good because God wills it or is morally good prior to God’s willing it and that is why he wills it. Now with respect to natural law, the question is this: Does God will natural law into existence, or does it exist apart from God’s willing it such that he wills it because it is good. The former view, locating the authority of natural law in the divine will, is the voluntarist view; the latter view, locating the authority of natural law in its intrinsic goodness, is the rationalist view. The voluntarist view of natural law, then, is derived from the divine command theory of ethics—the morally good is what God wills it to be. These distinctions will become clearer in the discussion below of the development of the doctrine and theory of natural law. HISTORY What follows does not purport to be a complete and detailed history of the doctrine and theory of natural law, which is not necessary for the purpose of this study. There is a myriad of authors on the subject, but also much repetition in what they say. The following historical survey simply highlights the views of the major doctrinists and theorists from the Greco-Roman and Medieval periods to the early modern period of the seventeenth century up to the present day. The continuities, as well as the differences, in their thinking on natural law will be noted. The idea of natural law is virtually as old as Western philosophy which has nurtured it, and is a mainstay of Western culture. 3 More particularly,

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elements of natural law are to be found in every normative ethical theory. Natural law has proven to be not only venerable but also resilient and tenacious in the face of the critiques mounted against it. Natural law was pronounced dead but, like a phoenix, arose from its ashes to become today a serious topic of discussion in jurisprudence, political theory, international relations, and just war theory—indeed, it is an essential component of these disciplines. As such, it cannot be ignored. GRECO-ROMAN PERIOD A nascent idea of natural law is found among the pre-Socratic philosophers, was eclipsed with the emergence of the Sophists, but revived by Plato and Aristotle, and coming to fruition with the Stoics. Testimony to the antiquity of natural law is its intimation by the PreSocratic philosopher, Heraclitus, who speaks of a law transcending and informing all human laws: “For all the laws of men are nourished by one law, the divine law; for it has as much power as it wishes and is sufficient for all and is still left over.” 4 This divine law is associated in Heraclitus’ mind with a metaphysical principle, the Logos, which refers to the inherent order or rationality of the world, articulated in scientific law, thus making it a cosmos instead of a chaos. It is because of this Logos that nature is explicable and predictable through scientific laws. Heraclitus identifies two fundamental features informing the classical doctrine or theory of natural law, namely, the dualism between uncreated or divine law on the one hand and created or human-made law on the other; and that natural law is fundamentally a metaphysical or ontological principle being part and parcel of the very fabric of being or reality. The antiquity of natural law is also attested by Pythagoras’ conception of the harmony of the spheres expressive of the principle of harmonic relations of things. Natural law and its conflict with and superiority to positive law receives dramatic treatment in two tragedies of Sophocles. In Antigone, Antigone’s uncle, King Creon, has forbidden the burial of Polyneices, her brother, for treason. Disobeying this royal decree, Antigone buries Polyneices in the name of a higher law ordained by the gods. Creon enacted a positive law for the state; Antigone, in opposition to it, complies with the divine law decreeing that human beings, whatever their crimes, deserve the rites of proper burial. Creon’s refusal to bury a rebel’s body, a violation of the equivalent of natural law, is met with calamity. Antigone reminds Creon of a law transcending any human law: “Your edict was clear / and strong, but not enough to suspend the unwritten, / unfailing law of the gods who live forever / and whose rule, revealed to us so long ago, / is not for here and now but, like the gods, / forever.” 5 And in Oedipus the King, the first chorister says, “I

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pray for a fate that allows me / praise for my words and deeds / as models of strict observance / of heaven’s laws / handed down from Olympus. / They are not merely mortal / and never expire or lapse / but, like the gods who gave them, / continue in power forever.” 6 The phrases “law of the gods” and “heaven’s laws” are equivalents of “natural law.” These passages from a pair of ancient tragedies epitomize natural law by affirming its distinction from and superiority to any positive law, its unchangeableness, and its divine, eternal, and transcendent nature. Plato It has been said that in Plato are to be found all the elements of a fullyfledged theory of natural law as it would be developed subsequently. Plato, like Heraclitus and Sophocles, affirms the existence of divinely ordained “unwritten laws,” the equivalent of natural law, as in this exchange between Socrates and Hippias as reported by Xenophon: “Do you know what is meant by ‘unwritten laws’, Hippias?” Socrates asked. “Yes, those which are observed in every country with respect to the same circumstances.” “Can you claim that it was men who laid them down?” “How could it be, considering that they couldn’t all meet together and don’t speak the same language?” “Then who do you think are the authors of these laws?” “I suppose that these laws were ordained for men by gods. At any rate, among all peoples the first established custom is to worship gods.” 7

And in his dialogue, Laws, Plato, through the mouthpiece of the Athenian, one of the interlocutors, is more specific about the nature of these unwritten laws where he proposes the kind of laws and constitution that a prospective state should have. These unwritten laws, he says there, are not so much formally enacted laws as they are a body of human practices, customs, and traditions (subsequently known as jus gentium, the law of nations, complementing jus naturalis, natural law) which form the matrix out of which written laws and state constitutions emerge and to which they ought to conform if the state is to endure: That all the matters which we are now describing are commonly called by the general name of unwritten customs, and what are termed the laws of our ancestors are all of similar nature. And the reflection which lately arose in our minds, that we can neither call these things laws, nor yet leave them unmentioned, is justified; for they are the bonds of the whole state, and come in between the written laws which are or are hereafter to be laid down; they are just ancestral customs of great antiquity, which, if they are rightly ordered and made habitual, shield and preserve the previously existing written law; but if

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Chapter Five they depart from right and fall into disorder, then they are like the props of builders which slip away out of their place and cause a universal ruin—one part drags another down, and the fair superstructure falls because the old foundations are undermined. Reflecting upon this, Cleinias, you ought to bind together the new state in every possible way, omitting nothing, whether great or small, of what are called laws or manners or pursuits, for by these means a city is bound together, and all these things are only lasting when they depend upon one another; and, therefore, we must not wonder if we find that many apparently trifling customs or usages come pouring in and lengthening out our laws. 8

Moreover, in his dialogues Republic and Phaedo, Plato makes a distinction between justice as an ideal and justice as embodied in and practiced by individuals or a polity. In Republic, Socrates is seeking the pattern or ideal form of justice: “A pattern, then, said I, was what we wanted when we were inquiring into the nature of ideal justice and asking what would be the character of the perfectly just man, supposing him to exist, and, likewise, in regard to injustice and the completely unjust man.” 9 And in Phaedo, Plato hints at the existence of the ideal form of justice (uprightness) when Socrates asks Simmias, “Do we recognize such a thing as absolute uprightness?” and Simmias replies, “Indeed we do.” 10 Ideal justice is perfect but imperfectly embodied in polities. Justice as exemplified in any political society or practiced by its citizens is a pale copy of original or ideal justice, the archetype, of which its political exemplification is merely an ectype. The ideal of justice belongs to the realm of natural law. Through the exercise of reason, fostered by a sufficient training in philosophy, a legislator can become acquainted with ideal justice as it is in itself and enact laws in conformity with it. The ideal of justice, along with the unwritten laws, is not made but discovered and is the standard by which all human laws and customs are to be judged. Plato’s distinction between ideal justice and its actual embodiment in political society is an instance of the metaphysical dualism articulated in his theory of Forms or Ideas. According to this theory, everything in the ever changing world of space and time—institutions, physical objects, concepts, etc.—are what they are because they exemplify, embody, or copy one or another of these abstract Forms or Ideas which are their models or patterns. These Forms or Ideas subsist transcendentally and eternally in a realm above and beyond the spatio-temporal world. They are unchangeable and perfect. Thus a horse is a horse precisely because it embodies or exemplifies the Form or Idea of ideal Horseness. The Apollo Belvedere statue is beautiful because it copies or shadows forth the Form or Idea of ideal Beauty. And a society is just insofar as it instantiates the Form or Idea of ideal Justice.

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Aristotle Aristotle has been credited with being the “father of natural law.” 11 Like Plato, Aristotle distinguishes between two kinds of law, namely, “particular law” (positive) and “law of Nature” (natural law). He makes this distinction in his Rhetoric: “Particular law is that which each community lays down and applies to its own members: this is partly written and partly unwritten. Universal law is the law of Nature. For there really is, as everyone to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other.” 12 As he does in his Nicomachean Ethics: There are two sorts of political justice, one natural and the other legal. The natural is that which has the same validity everywhere and does not depend upon acceptance; the legal is that which in the first place can take one form or another indifferently, but which, once laid down, is decisive. . . . Among the gods, indeed, justice presumably never changes at all; but in our world, although there is such a thing as natural law, everything is subject to change; but still some things are so by nature and some are not, and it is easy to see what sort of thing, among those that admit of being otherwise, is so by nature and what is not, but is legal and conventional, assuming that both alike are changeable. And the same distinction will apply in all other cases; for the right hand is by nature the stronger, and yet it is possible for everyone to become ambidextrous. 13

What is particularly significant about this passage is Aristotle’s subsumption of both natural justice (natural law) and legal justice (positive law) under political justice and his characterization of natural justice as changeable because nature herself changes. Once natural justice is considered changeable, it could be included in the domain of variable political justice. This idea becomes part of Roman law wherein jus naturale (natural justice) and jus gentium (law of nations) are integral parts of the same political system. Importantly, Aristotle derives law from reason and practical wisdom. Practical wisdom is for Aristotle preeminent among the cardinal virtues. Reason is embedded in much natural law theory as the way natural law is established and known. Aristotle defines “natural law” by situating it in his metaphysics, namely, his teleological conception of nature. As its name suggests, natural law takes it cue from nature. Not coincidentally, Aristotle had long studied the natural world and wrote books in botany and zoology. He makes the commonplace observation that in the natural order there are ongoing processes of birth, growth, maturation, decay, and death. Living organisms are dynamic things constantly undergoing some kind of change. Aristotle further observes that all the changes and activities of organisms were for the realization of certain ends or purposes. Thus, trees alternately grow and shed leaves. The chloro-

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phyll in the leaves interacts chemically with sunlight and through photosynthesis produces oxygen, making life possible. Trees have myriad uses other than the production of this gas; they provide essential habitats for a variety of flora and fauna, and for us they are an indispensable source of shade, food, fuel, timber, and even beauty. But the function they perform uniquely, naturally and best, and for which they are physiologically adapted, is the photosynthetic production of oxygen, which is their chief end or purpose. Consider another example. A woman’s body, together with the changes and activities specific to it, is made to bear and nurture children. It is physiologically constructed for that task. Her body may have many other uses, such as athletic competition, physical labor, or modeling, but the function it performs naturally and for which it is uniquely suited is the bearing and nurture of offspring, which is its chief purpose or end. (Let me not be misunderstood, though, as saying that a woman’s purpose is to bear children, but only the purpose of her body.) For Aristotle, then, every organism has something that it is naturally equipped to do and does best, and whatever that may be is its unique purpose or function. Consequently, everything in nature, including ourselves, has a purpose, or telos, it is striving to realize. This is Aristotle’s teleological conception of nature. Aristotle believed that every natural process, because it is natural, is good, and its unique function or purpose is also good. If it performs its function well or realizes its purpose, then it is deemed good or excellent of its kind and so “virtuous.” You will recall from our earlier discussion of Aristotle’s ethics that practicing the virtues is the necessary means whereby we attain life’s goal of happiness. Thus anything else, whether an artefact or an organism, if it attains its goal by doing what it was designed to do optimally, does so because of its good habits or virtues. A greyhound that wins races, the purpose for which it is bred, is accounted excellent of its kind or virtuous because of its native skills or virtues. Even a tool like a hammer is excellent of its kind or virtuous in the sense of doing well what it was designed to do. On the other hand, whatever interferes with a natural process, preventing it from performing its proper function or realizing its end, is bad. Now in order for something to function optimally and expeditiously realize its purpose, its activity must conform to a pre-established pattern, order, rule, or law, otherwise it will be dysfunctional and fail in achieving its purpose. This is the law of its nature. Thus, a tree and a woman’s body, if able to abide by the innate laws of their natures, will produce oxygen and children, respectively. Aristotle applies his teleological conception of natural law to politics: Since we see that every city is some sort of community and that every community gets established with some good in view (for everyone does everything for the sake of what they think good) it is clear that, while all communities have some good that they are aiming at, the community that has the most control of

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all and that embraces all the others is doing this most of all and is aiming at the most controlling of goods. This community is the city as it is called, the community that is political. 14

Aristotle uses the “law of nature” in both its descriptive and prescriptive sense. He uses it in its descriptive sense when it refers to the ends of things in general and what they do to achieve them. He uses it in its prescriptive sense when it refers to the goodness of these ends and the cultivation of the human virtues necessary for the achievement of a flourishing state of existence. Aristotle’s teleological conception of natural law would be adopted by Thomas Aquinas in his own account of it. The Stoics Plato and Aristotle hold a doctrine of natural law, informing all subsequent discussions of it, beginning with the Stoics, in particular Cicero, Seneca, and Marcus Aurelius. “Live according to nature,” the knowledge of which is disclosed by human reason, might serve as the motto of Stoicism. 15 The following is an account of a lecture, contrasting Stoicism with Epicureanism, given by the Skeptic Carneades, a critic of Stoicism, wherein he describes the Stoic conception of natural law. Taking for the sake of argument the Stoics’ side: He argued that there was order in the cosmos, governed by natural law, and that order in civil society was a reflection of the eternal natural order, discernible by human beings on account of their faculty of reason. Through the exercise of reason human beings were able to apprehend the natural law and construct societies whose social and legal structure replicated it. Even though humans had the capacity to construct arrangements that reflected this natural law, or order, they did not always succeed. Conformity to the natural order of the cosmos constituted just conduct in both the individual and society. 16

This account is familiar enough from our discussion of Plato and Aristotle: (a) There is the dualism of the natural law (governing the order of the cosmos) and positive law (governing civil society). (b) Justice consists of conformity of the conduct of individuals and society to the natural order of the cosmos. (c) Knowledge of the natural order together with its organizing law is discoverable through the exercise of human reason. The Stoics’ contribution to the doctrine of natural law is their affirmation of the brotherhood of humankind, their cosmopolitanism. 17 According to Zeno of Citium, the founder of Stoicism, as reported by Plutarch: “. . . all the inhabitants of this world of ours should not live differentiated by their respective rules of justice into separate cities and communities, but that we should consider all men to be of one community and one polity, and that we

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should have a common life and an order common to us all, even as a herd that feeds together and shares the pasturage of a common field.” 18 This same cosmopolitan spirit informs the thought of the Roman Emperor, Marcus Aurelius, who affirms that reason and law are common to all human beings thereby making them fellow citizens of the same community, and that reason and law are founded in an international political community far wider than any local political community or nation: If the intellectual is common to all men, so is reason, in respect of which we are rational beings: if this is so, common also is the reason that commands us what to do, and what not to do; if this is so, there is a common law also; if this is so, we are fellow-citizens; if this is so, we are members of some political community; if this is so, the world is in a manner a state. For of what other common political community will anyone say that the whole human race are members? And from this common political community comes also our very intellectual faculty and reasoning faculty and our capacity for law; where else could they come from? For as my earthly part comes from the earth, and the watery part from another element, and that which is hot and fiery from some peculiar source (for nothing comes out of nothing, as nothing also returns to nonexistence), so also the intellectual part comes from some source. 19

Note that Aurelius is claiming that through the exercise of our common reason we can come to know the common or natural law, a persistent theme in subsequent theories of natural law. Stoic cosmopolitanism lies behind the idea of a universal moral community that can anchor the theory of human rights, as will be seen in a subsequent chapter. Cicero It is Cicero who first formalizes the doctrine of natural law as a theory which became embedded in Roman law and transmitted to Church Fathers like St. Augustine and to Scholastics like St. Thomas Aquinas. His theory of natural law is spelled out in his dialogues, On the Commonwealth (De re publicans) and On the Laws (De legibus). In On the Commonwealth, he describes natural law as both rational and natural, constant, eternal, inviolable, and of divine origin. Cicero notes that the meaning of natural law is clear enough without requiring sophisticated interpretation. Moreover, it cannot be countermanded by positive law. It cannot be disobeyed with impunity. And those who dare to disobey it will not need the sanctions of positive law to punish them but will punish themselves of their own accord by suffering the degradation of their humanity: True law is right reason, consonant with nature, spread through all people. It is constant and eternal; it summons to duty by its orders, it deters from crime by its prohibitions. Its order and prohibitions to good people are never in vain; but

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it does not move the wicked by these orders or prohibitions. It is wrong to pass laws obviating this law; it is not permitted to abrogate any of it; it cannot be totally repealed. We cannot be released from this law by the senate or the people, and it needs no exegete or interpreter like Sextus Aelius. There will not be one law at Rome and another at Athens, one now and another later; but all nations at all times will be bound by this one eternal and unchangeable law, and the god will be the one common master and general (so to speak) of all people. He is the author, expounder, and mover of this law; and the person who does not obey it will be in exile from himself. Insofar as he scorns his nature as a human being, by this very fact he will pay the greatest penalty, even if he escapes all the other things that are generally recognized as punishments.

In On the Laws, Cicero associates human reason with divine reason, equates right reason with law, and, in the spirit of Stoic cosmopolitanism, affirms that all humans together with the gods are citizens of a universal community or commonwealth: And therefore, since there is nothing better than reason, and it is found both in humans and in god, reason forms the first bond between human and god. And those who share reason also share right reason; and since that is law, we humans must be considered to be closely allied to gods by law. Furthermore, those who share law also share the procedures of justice, and those who have these things in common must be considered members of the same state, all the more if they obey the same commands and authorities. Moreover, they do obey the celestial order, the divine mind and the all-powerful god, so that this whole cosmos must be considered to be the common state of gods and humans.

In the same place, Cicero states that reason originates in nature but when implanted in the human mind it is law or right reason. And the highest (natural) law, the source of justice, pre-existed any positive law or any civil society: Philosophers have taken their starting point from law; and they are probably right to do so if, as these same people define it, law is the highest reason, rooted in nature, which commands things that must be done and prohibits the opposite. When this same reason is secured and established in the human mind, it is law. . . . The beginning of justice is to be sought in law: law is a power of nature, it is the mind and reason of the prudent man, it distinguishes justice and injustice. . . . But in establishing the nature of justice, let us begin from that highest law, which was born aeons before any law was written or indeed before any state was established.

Natural law or right reason, moreover, has a divine source: Reason existed, derived from nature, directing people to good conduct and away from crime; it did not begin to be a law only at that moment when it was

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written down, but when it came into being; and it came into being at the same time as the divine mind. And therefore that true and original law, suitable for commands and prohibitions, is the right reason of Jupiter, the supreme god. 20

As indicated above, “natural law” (“nature”) is ambiguous in the sense that understood descriptively it refers to those laws regulating nature both external and human, and understood prescriptively as those laws with a morally normative force regulating specifically human behavior. Cicero, like other Stoics, conflated these two meanings of “natural law,” and to equate natural law with the law of nations, though later they would become more distinct. Roman Jurists The Stoic conception of natural law entered the annals of Roman law, including the jurisprudence of Gaius and Ulpian, and the Corpus Juris Civilis (Body of Civil Laws), also known as Codex Justinianus (The Code of Justinian), compiled under the sponsorship of Justinian I between 529 and 565 CE. The Justinian Code defines “natural law” in its descriptive sense as being maximally inclusive of all animals as well as humans: Natural Law is that which nature has taught to all animals, for this law is not peculiar to the human race, but applies to all creatures which originate in the air, or the earth, and in the sea. Hence arises the union of the male and the female which we designate marriage; and hence are derived the procreation and the education of children; for we see that other animals also act as though endowed with knowledge of this law. 21

Moreover, natural law is unchangeable whereas positive law is not: “Natural Laws that are observed without distinction by all nations and have been established by Divine Providence remain always fixed and unchangeable; but those which every State establishes for itself are often changed either by the tacit consent of the people, or by some other law subsequently enacted.” The Code defines “law of nations” as that body of law common to all peoples; The Law of Nations, however, is common to the entire human race, for all nations have established for themselves certain regulations exacted by custom and human necessity. For wars have arisen, and captivity and slavery, which are contrary to natural law, have followed as a result, as, according to Natural Law, all men were originally born free; and from this law nearly all contracts, such as purchase, sale, hire, partnership, deposit, loan, and innumerable others have been derived. 22

What, though, is the relation between natural law and the law of nations? The Roman Jurist Gaius acknowledges that “with the Romans the Jus Gentium and the Jus Naturale were practically synonymous.” 23 And the Code seems to

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concur with this when it states that “what natural reason establishes among all men and is observed by all peoples alike, is called the Law of Nations, as being the law which all nations employ—natural reason being the means to knowing the natural law which Cicero identifies with right reason” 24 However, Ulpian thought that a distinction should be made between them such that natural law is descriptive and governs all beings, human and otherwise, whereas the law of nations is prescriptive and establishes moral norms for human beings. The Justinian Code also acknowledges a category of “unwritten law” or “that which usage has confirmed, for customs long observed and sanctioned by the consent of those who employ them, resemble law.” 25 This body of unwritten law, closely associated with the law of nations, some theorists of natural law have regarded as a manifestation of natural law and coordinate with it; it will play a major role in the revision of natural law in the late modern period. St. Augustine Augustine’s represents the first specifically Christian theory of natural law which introduces the idea of the world ruled by a personal and transcendent deity reigning according to providence. Antecedent to natural law is what Augustine designates “eternal law” or the “law of reason.” It is primal, being “the divine order or will of God, which requires the preservation of natural order, and forbids the breach of it.” 26 Augustine’s natural law is the imprint of eternal law in human minds which humans can discover through their reason thereby enabling them to conform to the edicts of eternal law: “Therefore, by way of this ineffable and sublime management of things which is the work of Divine Providence, natural law is transcribed, as it were, upon the rational soul so that in the conduct of this life and in their earthly ways men might preserve semblances of the workings of God.” 27 Natural law is immutable, universal, and eternal and is the source and model for temporal or positive law and prescribes that human beings get their just desserts: Will not any intelligent man regard that law as unchangeable and eternal, which is termed the law of reason? We must always obey it; it is the law through which wicked men deserve an unhappy, and good men a happy life, and through which the law we have said should be called temporal is rightly decreed and rightly changed. Can it ever be unjust that the wicked should be unhappy and the good happy, or that a well-disciplined people should be selfgoverning, while an ill-disciplined people should be deprived of this privilege? . . . I think you also see that men derive all that is just and lawful in temporal law from eternal law. . . . [eternal law] is the law by which it is just that everything should have its due order. . . . Since there is this single law,

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Chapter Five from which all temporal laws for human government derive their various forms, I suppose it cannot itself be varied? 28

Platonic dualism, as that of eternal and temporal law, is evident in Augustine’s conception of justice. True justice, for him, occurs only in the City of God, i.e., the kingdom of God, whereas temporal justice, its simulacrum, occurs in human cities or states. True justice is perfect and unalterable, but temporal justice is imperfect and varies according to the circumstances of time and place. NOTES 1. I distinguish between a doctrine and a theory of natural law. A doctrine is a set of informal reflections on what would become elements of a more formalized theory of natural law. A doctrine of natural law is found in the thought of thinkers before Cicero; a theory of natural law is found in those thereafter. 2. Henry Veatch, “Natural Law: Dead or Alive?,” Literature of Liberty: A Review of Contemporary Liberal Thought 1, no. 4 (October–December 1978): 8. 3. David Boucher, The Limits of Ethics in International Relations: Natural Law, Natural Rights, and Human Rights in Transition (Oxford: Oxford University Press, 2009), 45. 4. G. S. Kirk and J. E. Raven, The Pre-Socratic Philosophers: A Critical History with a Selection of Texts (Cambridge: Cambridge University Press, 1971), 213, n. 253. 5. Sophocles, Antigone, in The Theban Plays of Sophocles, trans. David R. Slavitt, Yale New Classics (New Haven: Yale University Press, 2007), 20. 6. Sophocles, Oedipus Tyrannos, in Theban Plays of Sophocles, 102. 7. Robin Waterfield, The First Philosophers: The Presocratics and Sophists (Oxford: Oxford University Press, 2000), 255. 8. Plato, Laws, in The Dialogues of Plato, trans. B. Jowett, 3rd ed. (Oxford: Oxford University Press, 1892), 5: 173–74. 9. Plato, Republic, in The Collected Dialogues of Plato, Including the Letters, ed. Edith Hamilton and Huntington Cairns, Bollingen Series LXXI (Princeton, NJ: Princeton University Press, 1961), 711. 10. Plato, Phaedo, in Collected Dialogues, 48. 11. Michael Bertram Crowe, The Changing Profile of the Natural Law (The Hague: Martinus Nijhoff, 1977), 19. 12. Aristotle, Rhetoric, trans. W. Rhys Roberts, 35, https://ebookcentral-proquest-com .uncfsu.idm.oclc.org/lib/fayetteville-ebooks/reader.action?docID=3314386&query=). 13. Aristotle, Nicomachean Ethics, in The Ethics of Aristotle, trans. J. A. K. Thomson (London: Penguin Books, 1976), 189–90. 14. Aristotle, Politics, in The Politics of Aristotle, trans. Peter L. Phillips Simpson (Chapel Hill: The University of North Carolina Press, 1997), 44. 15. Crowe, Changing Profile of the Natural Law, 31. 16. Boucher, Limits of Ethics in International Relations, 31. 17. An even wider cosmopolitanism is found in the Pre-Socratic philosopher Pythagoras thus predating that of the Stoics and Aristotle. He affirms the doctrine of the “kinship of all living things.” 18. Plutarch, Moralia, in Plutarch’s Moralia, trans. Frank Cole Babbitt (Cambridge: Harvard University Press, 1962), 4: 397. 19. Marcus Aurelius, Meditations, trans. George Long (Mineola, NY: Dover Publications, Inc., 1997), 20.

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20. Cicero, On the Commonwealth and On the Laws, ed. James E. G. Zetzel, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1999), 71–72, 113, 111–12, 133. 21. Justinian, “Concerning Natural Law, the Law of Nations, and the Civil Law,” in The Institutes of our Lord Justinian, http://www.constitution.org/sps/sps02_j1-1.htm. 22. Ibid., no. 2. 23. Gaius, “Concerning Civil and Natural Law,” in The Institutes of Gaius, no. 2, https:// www.constitution.org/sps/sps01_2-1.htm. 24. Justinian, “Concerning Natural Law, the Law of Nations, and the Civil Law.” 25. Ibid., no. 9. 26. Augustine, St., Contra Faust, in The Fathers of the Church, Bk. 22, no. 27, http:// www.newadvent.org/fathers/index.html 27. The Fathers of the Church: A New Translation, eds. Hermigild Dressler et al. (Washington, DC: The Catholic University of America Press, Inc., 1982), 92. 28. Augustine, St. The Problem of Free Choice, in Ancient Christian Writers, The Works of the Fathers in Translation, No. 22, ed. Johannes Quasten and Joseph C. Plumpe, trans. Dom Mark Pontifex (Westminster, MD: The Newman Press, 1955), 48–49, https://archive.org/ stream/ancientchristian009933mbp#page/n57/mode/1up/search/.++Eternal+law+)

Chapter Six

A Brief History of Natural Law II The Scholastic Theory

ST. THOMAS AQUINAS Aquinas’s theory of natural law as formulated in his Summa Theologiae/ Theologica is its most systematic and complete formulation in the Christian tradition, becoming the locus classicus for all subsequent theorizing about it. For Aquinas, natural law is a category of his more general conception of law that also includes the categories of eternal law and divine law. Law considered formally and abstractly is a regulatory principle which in human behavior is reason directing it to its proper end: “Law is a rule and measure of acts whereby man in induced to act or is restrained from acting; . . . . Now the rule and measure of human acts is the reason, which is the first principle of human acts . . . since it belongs to the reason to direct to the end, which is the first principle in all matters of action . . .” Law, generically considered, results from reason, aims at the common good of all created beings, issues from one having authority, and is promulgated or made public: “[Law] is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” 1 More particularly, eternal law is the broadest category of law insofar as it imposes form on the universe thereby rendering it rational and so intelligible, explicable, and predictable; otherwise it would be a chaos, not a cosmos: Now it is evident, granted that the world is ruled by divine providence . . . that the whole community of the universe is governed by divine reason. Wherefore the very Idea of the government of things in God the Ruler of the universe has the nature of a law. And since the divine reason’s conception of things is not 69

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Eternal Law is the wisdom of God as manifested in creation. It is analogous to Plato’s Form or Idea of the Good insofar as it is transcendental, eternal, rational, unchanging, and embodied in the world where it is reflected. It is the master plan or blueprint of creation that directs all things to their appointed ends: “Wherefore as the type of the divine wisdom, inasmuch as by it all things are created, has the character of art, exemplar or idea, so the type of divine wisdom, as moving all things to their due end, bears the character of law. Accordingly, the eternal law is nothing else than the type of divine wisdom, as directing all actions and movements.” 3 As such it comprises all the physical laws discovered and formulated by science. Eternal law is Heraclitus’ Logos. Divine law is the moral code that human beings must obey to ultimately merit salvation—“it was necessary for the directing of human conduct to have a divine law.” 4 It is discoverable in part by human reason, though it is fully revealed in Scripture. Natural law is the imprint of divine law on the human soul and commands it through the dictates of conscience: “The natural law is promulgated by the very fact that God instilled it into man’s mind so as to be known by him naturally.” 5 It is a concession to our finite minds by giving us a glimpse of the eternal law the fullness of which lies beyond our comprehension. It is through natural law (and thence through divine law) that we are able to participate indirectly in eternal law—“the natural law is nothing else than the rational creature’s participation of the eternal law” 6—thereby acquiring the knowledge of good and evil. Natural law ordains that human beings act in accordance with reason—what is rational is good, what is irrational is evil. It prescribes rules of behavior that have as their end forms of human perfection. All law issues from the rational will of a sovereign law-giver, either divine (in the case of natural law) or human (in the case of positive law). According to Aquinas, the first and fundamental precept of natural law, from which all its other precepts are derived, is that since everything seeks the good then the good should be sought and evil eschewed: Consequently, the first principle in the practical reason is one founded on the notion of good, viz., that good is that which all things seek after. Hence this is the first precept of law, that good is to be done and ensued, and evil is to be avoided. All other precepts of the natural law are based upon this, so that whatever the practical reason naturally apprehends as man’s good (or evil) belongs to the precepts of the natural law as something to be done or avoided.

This first precept derives from our natural inclination toward whatever is good, which is an end or aim. More particularly, we have inclinations toward

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specific goods, our knowledge of which comes through reason, and from which are derived the particular precepts of natural law: “Since, however, good has the nature of an end, and evil, the nature of the contrary, hence it is that all those things to which man has a natural inclination are naturally apprehended by reason as being good, and consequently as objects of pursuit, and their contraries as evil, and objects of avoidance. Therefore, the order of the precepts of the natural law is according to the order of natural inclinations.” 7 Aquinas goes on to specify what those natural inclinations toward the good are, and the particular natural laws derived from them and ordained for the attainment of the good in question. One such inclination is that toward self-preservation, common to all creatures: “Because in man there is first of all an inclination to good in accordance with the nature which he has in common with all substances, inasmuch as every substance seeks the preservation of its own being, according to its nature; and by reason of this inclination, whatever is a means of preserving human life and of warding off its obstacles belongs to the natural law.” An inclination, common to all animals, is that toward sexual intercourse, procreation, and the nurture of offspring: “Secondly, there is in man an inclination to things that pertain to him more specially, according to that nature which he has in common with other animals; and in virtue of this inclination, those things are said to belong to the natural law ‘which nature has taught to all animals,’ such as sexual intercourse, education of offspring, and so forth.” And a third inclination, unique to human beings, is toward the intellectual good consisting in a knowledge of God, and the moral good consisting of peaceable coexistence with others in society: “Thirdly, there is in man an inclination to good according to the nature of his reason, which nature is proper to him: thus man has a natural inclination to know the truth about God and to live in society; and in this respect, whatever pertains to this inclination belongs to the natural law, for instance, to shun ignorance, to avoid offending those among whom one has to live, and other such things regarding the above inclination.” 8 For Aquinas, the precepts of natural law are self-evidently true from which the proper modes of human conduct are inferred and adapted to our experience. These precepts are analogous to the first, self-evident principles operative in the sciences: A law is a dictate of the practical reason. Now it is to be observed that the same procedure takes place in the practical and in the speculative reason, for each proceeds from principles to conclusions. . . . Accordingly we conclude that just as, in the speculative reason, from naturally known indemonstrable principles we draw the conclusions of the various sciences, the knowledge of which is not imparted to us by nature, but acquired by the efforts of reason; so, too, it is from the precepts of the natural law, as from general and indemonstrable principles, that the human reason needs to proceed to the more particu-

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Aquinas makes a distinction between primary and secondary precepts of natural law, the latter being derived as inferences from the former. These two kinds of precept parallel the distinction between primary and secondary ends in nature. Examples of primary ends are health in the use of food, and procreation in the institution of marriage. Examples of secondary ends are the avoidance of gluttony in the use of food, and the partners’ mutual assistance in marriage. More generally, primary precepts proscribe whatever impedes the primary ends of nature; whereas secondary precepts ordain that all things be done in a comely manner, and proscribe whatever makes attaining the primary ends of nature more difficult or whatever excludes or impedes the attainment of a secondary end. Positive or human law is ideally the enactment and adaptation of natural law by a particular socio-political community. However, positive law is authoritative and valid only insofar as it substantively conforms to its model of natural law; if not, it is invalid. An unjust law, one contrary to natural law, is null and void: Wherefore the force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just from being right according to the rule of reason. But the first rule of reason is the law of nature. . . . Consequently, every human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law. 10

Evidently from the above discussion, Aquinas adopts and adapts Aristotle’s teleological conception of the world according to which everything has a nature proper to itself which is both the efficient and final cause (end or purpose) of its activity. Everything by nature is inclined toward its appropriate end. Human beings are uniquely endowed with reason, enabling them to keep on course to achieving their proper end. This can be achieved by their practicing Aristotle’s five cardinal virtues, namely, courage, prudence, temperance, justice, and wisdom. These virtues can be practiced by natural, unredeemed persons. To these classical virtues Aquinas adds the specifically Christian virtues of faith, hope, and love, the practice of which is necessary for salvation. These virtues, though, can be inculcated only through the intervention of divine grace and so cannot be present in or practiced by the unredeemed.

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THE VOLUNTARISTS The medieval philosophers Duns Scotus and William of Ockham differ with Aquinas as to the origin of natural law. In contrast to Aquinas’ rationalistic conception of natural law, according to which it issues from divine reason, Scotus and Ockham hold to a voluntaristic conception, according to which it issues from the divine will. Voluntarism presupposes that the will has primacy over the intellect. According to it, the authority and validity of natural law derives not from a rational order of things distinct from God and to which he must conform, but solely from God’s command. Natural law is “a code of moral precepts implanted in man’s nature, or mind, and issuing from the legislative Will of God.” What ought to be done depends solely on God’s fiat. To suppose otherwise is an infringement of God’s power and sovereignty. Natural law is neither intrinsically rational nor good; its force and merit depend wholly on its being willed by God: For Occam the natural moral law is positive law, divine will. An action is not good because of its suitableness to the essential nature of man, wherein God’s archetypal idea of man is represented according to being and oughtness, but because God so wills. God’s will could also have willed and decreed the precise opposite, which would then possess the same binding force as that which is now valid—which, indeed, has validity only as long as God’s absolute will so determines. Law is will, pure will without any foundation in reality, without foundation in the essential nature of things. 11

This voluntaristic conception implies that natural laws ought to be obeyed not because it is rational to do so (in conformity to divine reason) but because it is commanded (in conformity to the divine will), and that they could have been otherwise had they been so willed. The issue here between Aquinas and both Scotus and Ockham is the one raised by Plato in Euthyphro (where Socrates asks whether the holy is holy because it is willed by the gods, or is willed by the gods because it is holy). Socrates takes the rationalist side by arguing that the holy does not depend on the will of the gods. Ockham’s voluntaristic conception of natural law would become the distinctively Protestant conception of it in contrast to the Catholic one. Moreover, as will be seen in the next chapter, it would be taken up in the early and late modern period and become the foundation of positive law, according to which law originates in the human law-giver, the ultimate legal authority. LATER SCHOLASTICS The fifteenth-century Spaniards Francisco de Vitoria, Francisco Suárez, and Gabriel Vasquez were the most important of the later Scholastics who re-

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thought Aquinas’ rationalist theory of natural law theory in light of the new historical and intellectual circumstances of the sixteenth century, in particular the rise of voluntarism and the European encounter with the indigenous peoples of the Americas. They emphasized the ethical foundations of international law, insisting that the indigenous peoples of the New World be accorded justice. Vitoria and Suárez are credited with being founders of modern international law. Vitoria’s distinction lies in relating natural law to the law of nations. Nations, though they are human creations, are not conventional political societies but natural insofar as their existence and purpose are determined by natural law in recognition of humanity’s natural gregariousness. Vitoria regards nations as virtual persons analogous to the persons or citizens constituting a nation, and in so doing establishes their right of sovereignty including their right to existence; their right to juridical equality with other nations; their right to autonomy (unless a nation is incapable of self-rule in which case another nation can rule over it); their right to free communication and trade; and their right and duty of intervening in the affairs of other nations for humanitarian reasons. And just as citizens within a nation are interdependent so are nations, with the peoples of all nations constituting a transnational moral community, an echo of Stoic cosmopolitanism. According to Coleman Phillipson, “It [the law of nations] implies a recognition at once of the independence and of the interdependence of States, and of their reciprocal rights and obligations. It points to the existence of a juridical tie between nations, which constitute [sic] therefore an international society.” 12 Natural law regulates the relations of nations as well as citizens within a nation. The law of nations is what natural reason has identified as the body of laws common to all nations which complements natural law; it is either identical to natural law or derived from it. The law of nations is natural law adapted to the conduct of nations. Vitoria equivocates as to the source of natural law, as to whether it is found in nature independently of God’s willing it (the rationalist conception) or in God’s will (the voluntarist conception). On the one hand, he says that natural law, to be a genuine law, must be commanded by a law-giver. Thus, any precept of natural law derives its moral authority from God’s commanding it. Yet on the other hand, he also believes that what is naturally good is commanded by God precisely because it is antecedently good and what is naturally bad is forbidden by God for the same reason. It is possible to reconcile these two opposed positions by supposing that natural law exists prior to God’s command, but then suggesting that his commanding it is an additional reason for our conformity to it. If this reconciliation is possible, then Vitoria fuses Aquinas’ rationalism with Scotus’ voluntarism. Vitoria should be especially remembered for his defense of the rights, particularly the right of property, of the indigenous peoples of the Americas,

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against the Spanish Empire which sought to deprive them of their rights: “the [American] aborigines undoubtedly had true dominion in both public and private matters, just like Christians, and that neither their princes nor private persons could be despoiled of their property on the ground of their not being true owners.” 13 Unlike Vitoria, Suárez sharply distinguishes between natural law and the law of nations. He notes the ambiguity of the term “law of nations”: It might mean either the law that all nations ought to obey in their reciprocal relations, or those civil laws which are duplicated in different states such as the prohibitions of murder and theft. The law of nations, in its former sense, is a type of positive or human law evolving out of prior legal agreements, like treaties and covenants, and customs concerned with international relations. It is intermediate between natural law and civil law. The law of nations, at least in Suárez’s day, is customary, unwritten, and tacitly understood, whereas civil law is written in statutes and backed by some political authority: The precepts of the ius gentium differ from those of the civil law in that they are not established in written form; they are established through the customs not of one or two states or provinces, but of all or nearly all nations. . . . Furthermore, unwritten law is made up of customs, and if it has been introduced by the custom of one particular nation and is binding upon the conduct of that nation only, it is called civil; if on the other hand, it has been introduced by the customs of all nations and thus is binding upon all, we believe it to be the ius gentium properly so called.

The basis for Suárez’s sharp distinction between natural law and the law of nations is as follows: For one thing, he believes natural law originates in God and, being innate in human minds, is known a priori; whereas the law of nations originates in human customs and practices and can be known only empirically from observation. For another, he excludes moral precepts from the law of nations, making it initially morally neutral, for such properly belong to natural law. However, once the law of nations forbids something, then that becomes morally wrong through its edict: “the ius gentium is not so much indicative of what is [inherently] evil, as it is constitutive of evil.” 14 According to Thomas Pink, Suárez, like Vitoria, somehow reconciles the rationalist and voluntarist conceptions of natural law: “The reconciliation of rationalism regarding the content of the natural law with a voluntarist theory of its origin in the divine will was the central distinctive feature of Suárez’s De legibus.” 15 NOTES 1. Thomas Aquinas, “Of the Essence of Law,” in The Political Ideas of St. Thomas Aquinas: Representative Selections, ed. Dino Bigongiari (New York: Hafner Press, 1953), 4, 9.

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2. Aquinas, “Of the Various Kinds of Law,” in Political Ideas of St. Thomas Aquinas, 11–12. 3. Aquinas, “Of the Eternal Law,” in Political Ideas of St. Thomas Aquinas, 30. 4. Aquinas, “Of the Various Kinds of Law,” 17. 5. Aquinas, “Of the Essence of Law,” 9. 6. Aquinas, “Of the Various Kinds of Law,” 14. 7. Aquinas, “Of the Natural Law,” in Political Ideas of St. Thomas Aquinas, 45. 8. Ibid., 45–46. 9. Aquinas, “Of the Various Kinds of Law,” in Political Ideas of St. Thomas Aquinas, 15. 10. Aquinas, “Of Human Law,” 58. 11. Heinrich A. Rommen, The Natural Law: A Study in Legal and Social History and Philosophy, trans. Thomas R. Hanley (Indianapolis, IN: Liberty Fund, Inc., 1998), 52. 12. Coleman Phillipson, “Franciscus a Victoria [sic] (1480-1546) International Law and War,” Journal of the Society of Comparative Legislation 15, no. 2 (1915): 180. 13. Francisco de Vitoria, On the Law of War, in War and Christian Ethics, ed. Author F. Holmes (Grand Rapids, MI: Baker Book House, 1975), 125. 14. Francisco Suárez, A Treatise on Laws and God the Lawgiver, in Selections from Three Works, A Treatise on Laws and God the Lawgiver; A Defence of the Catholic and Apostolic Faith; A Work on the Three Theological Virtues: Faith, Hope, and Charity, ed. Thomas Pink, trans. Gwladys L. Williams, et al., Natural Law and Enlightenment Classics (Indianapolis, IN: Liberty Fund, 2015), 399, 395. 15. Thomas Pink, “Introduction,” in Francisco Suárez, Selections from Three Works, xviii.

Chapter Seven

A Brief History of Natural Law III The Modern Theory

Among the most important theorists of natural law in the seventeenth and eighteenth centuries are Alberico Gentili, Hugo Grotius, Samuel Pufendorf, Thomas Hobbes, Samuel Rachel, John Locke, and Emmerich de Vattel. ALBERICO GENTILI Along with Vitoria and Suárez, Gentili is a cofounder of modern international law. He holds that knowledge of natural law is discovered not through a priori deduction but instead through a posteriori induction, that is, he approached natural law empirically by inferring it from the law of nations. According to him, the law of nations evolved out of legal precedents, social customs, and practices of nations, discernible in many diverse sources, as “that which has successively seemed acceptable to all men.” The general principles or rules they exemplify constitute the body of the law of nations. However, these general principles regulating international relations are by no means arbitrary; they are discovered through natural reason applied to experience which makes them consistent with natural law. Though the existence and validity of the law of nations are not susceptible to strictly logical or mathematical proof (echoes of Aristotle and Mill), its precepts are so well and widely known “that if you should try to prove them, you would render them obscure.” 1 Gentili holds that natural law and the law of nations, though distinct, are equally expressions of God’s will. He shares the cosmopolitan outlook of Vitoria and the Stoics in his conception that the nations form a societas gentium (society of nations), inclusive of even non-Catholic and 77

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non-Christian ones which should be accorded the same moral status in international relations as the others. HUGO GROTIUS Grotius is in continuity with the natural law tradition of Aquinas and the later Scholastics like Suárez and Vitoria. His chief distinction is as the first systematizer of international law or the law of nations which he grounds in natural law. According to Grotius, international law governs nations as civil laws govern states, and compliance with them is beneficial to nations and citizens respectively: “But as the Laws of each State respect the Benefit of that State; so amongst all or most States there might be, and in Fact there are, some Laws agreed on by common Consent, which respect the Advantage not of one Body in particular, but of all in general. And this is what is called the Law of Nations, when used in Distinction to the Law of Nature.” Moreover, “If there is no Community which can be preserved without some Sort of Right . . . certainly the Society of Mankind, or of several Nations, cannot be without it.” 2 Grotius restricts the scope of natural law to human beings, thereby understanding natural law in its prescriptive, not descriptive, sense. However, he seems to waver over his conception of it. On the one hand, by locating the source of natural law (natural right) in reason and nature he seems to hold Aquinas’ rationalistic conception of it, as in his following definition: “Natural Right is the Rule and Dictate of Right Reason, shewing the Moral Deformity or Moral Necessity there is in any Act, according to its Suitableness or Unsuitableness to a reasonable Nature, and consequently, that such an Act is either forbid or commanded by GOD, the Author of Nature.” That natural law is “the dictate of right reason” which determines the moral worth of an act depending on its conformity or nonconformity to nature is rationalistic. And that “in consequence, such an act is either forbidden or enjoined” is to say that God commands or forbids it because it is either antecedently good or bad respectively, that is, the moral worth of an act is independent of God’s will. In the following passage he sharply distinguishes his rationalistic conception of natural law from the voluntaristic one: The Actions upon which such a Dictate is given, are in themselves either Obligatory or Unlawful, and must, consequently, be understood to be either commanded or forbid by God himself; and this makes the Law of Nature differ not only from Human Right, but from a Voluntary Divine Right; for that does not command or forbid such Things as are in themselves, or in their own Nature, Obligatory and Unlawful; but by forbidding, it renders the one Unlawful, and by commanding, the other Obligatory.

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Moreover, Grotius removes natural law even further away from God and his will by supposing that even if God did not exist, natural law would still be valid and authoritative: “And indeed, all we have now said would take place, though we should even grant, what without the greatest Wickedness cannot be granted, that there is no God, or that he takes no Care of human Affairs.” Some commentators have understood this remark as indicating a subtle secularization of natural law, though David Boucher disagrees with this assessment. Yet on the other hand, Grotius, by locating the source of natural law ultimately in the will of God, seems to hold Ockham’s voluntaristic conception of it, as in this remark: And this now is another Original of Right, besides that of Nature, being that which proceeds from the free Will of God, to which our Understanding infallibly assures us, we ought to be subject: And even the Law of Nature itself, whether it be that which consists in the Maintenance of Society, or that which in a looser Sense is so called, though it flows from the internal Principles of Man, may notwithstanding be justly ascribed to God, because it was his Pleasure that these Principles should be in us. 3

However, as in the cases of Vitoria and Suárez, these two apparently opposed conceptions of natural law may be reconciled. Natural law, existing independently of God, does not depend on his will. But God, understanding its prior rightness and rationality, commands it. Thus there are two rationales for conformity to natural law, viz., its inherent rightness and rationality together with God’s commanding it. By divorcing natural law from God, if only hypothetically, Grotius may have sown the secular seed in natural law theory, though Grotius himself, by identifying natural law with God’s will, remains firmly in the theistic camp. As to the question of how natural law is known, Grotius gives two answers: First, since it is innate in human minds, it can be known a priori through the exercise of reason: “that God by the Laws which he has given, has made these very Principles more clear and evident, even to those who are less capable of strict Reasoning.” The existence and validity of natural law is as self-evident as the information we receive through our senses: “For the Principles of that Law, if you rightly consider, are manifest and self-evident, almost after the same Manner as those Things are that we perceive with our outward Senses, which do not deceive us, if the Organs are rightly disposed, and if other Things necessary are not wanting.” Second, natural law can be known a posteriori from the historical record of legal judgments and examples which carry the weight of precedential authority, especially those dating from the more enlightened periods of human history. This record of law not only indirectly proves the existence of the natural law underlying it but also directly proves that of the law of nations:

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Chapter Seven Histories have a double Use with respect to the Subject we are upon, for they supply us both with Examples and Judgments. Examples, the better the Times and the wiser the People were, are of so much the greater Authority; for which Reason we have preferred those of the ancient Grecians and Romans before others. Nor are the Judgments we meet with in Histories to be despised, especially when they agree: For the Law of Nature, as we have already said, is in some Measure proved from hence, but of the Law of Nations there is no other Proof but this. 4

According to Grotius, the specific precepts of natural law, not its general precept that is inborn, can be inferred from the study of human nature since it “flows from the internal Principles of Man.” One such principle is the impulse toward self-preservation which entails obedience to it: That Instinct whereby every Animal seeks its own Preservation, and loves its Condition, and whatever tends to maintain it; but on the other Hand, avoids its Destruction, and every Thing that seems to threaten it. . . . And that ’tis the first Duty of every one to preserve himself in his natural State, to seek after those Things which are agreeable to Nature, and to avert those which are repugnant.

Another principle is the natural gregariousness of human beings: “Now amongst the Things peculiar to Man, is his Desire of Society, that is, a certain Inclination to live with those of his own Kind, not in any Manner whatever, but peaceably, and in a Community regulated according to the best of his Understanding.” These two principles of human nature moderate each other. We should not seek to preserve ourselves at all costs without regard to others; and we should not allow our regard for others to threaten the preservation of ourselves. Based on these principles, natural law dictates that we ought not to take others’ possessions and we ought to pursue our genuine self-interest within reasonable bounds. This gregariousness, or sociability, then, is the source of rights: This Sociability, which we have now described in general, or this Care of maintaining Society in a Manner conformable to the Light of human Understanding, is the Fountain of Right, properly so called; to which belongs the Abstaining from that which is another’s, and the Restitution of what we have of another’s, or of the Profit we have made by it, the Obligation of fulfilling Promises, the Reparation of a Damage done through our own Default, and the Merit of Punishment among Men. 5

Grotius offers two reasons as to why we ought to obey the dictates of natural law. One, as we have seen, is the traditional one that they are divine commands as well as dictates of reason and so ought to be obeyed. The other, significantly, which is original with Grotius and anticipates Kant, is that

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obedience to natural law is consistent with our inherently rational and social nature whereas disobedience is inconsistent with it, yet another indication of Grotius’ rationalistic conception of natural law. Like other natural law theorists, Grotius affirms the inviolability of natural law and its supremacy over all positive laws which no earthly ruler can override: “The prince exercises dominion and declares the law not with regard to human matters only, but also with regard to divine matters, but he cannot order what has been forbidden by God or forbid what has been ordered by God. The supreme power has the judgment over civil laws and guardianship and protection over divine law, natural law and the law of nations.” 6 (Note the voluntaristic tone of this passage.) Significantly, Grotius, like Vitoria and Suárez, affirms the universal applicability of natural law. Some in his day had wished to apply natural law only to those who shared a common set of beliefs, i.e., Christian. This meant that those who did not subscribe to these beliefs had neither rights nor duties owed them and could be treated as less than human. Grotius disagreed. He believed natural law applies to all peoples regardless of their ethnicity, e.g., indigenous peoples of the New World. SAMUEL PUFENDORF Pufendorf, Grotius’s most influential disciple, like him states that all have the duty to safeguard society and so promote the common good: “this is a fundamental Law of Nature, That every man ought, as much as in him lies, to preserve and promote Society: That is, the Welfare of Mankind.” But he qualifies this apparently utilitarian justification of natural law by saying that though the truth of this dictum is evident from “that Natural Light which is engrafted in Mankind,” nevertheless it derives its moral force or obligatoriness from its being commanded by God: Now though these Rules do plainly contain in themselves that which is for the general Good; yet that the same may obtain the Force of Laws, it must necessarily be presuppos’d, that there is a God, who governs all Things by his Providence, and that He has enjoyn’d us Mortals, to observe these Dictates of our Reason as Laws, promulged by him to us by the powerful Mediation of that Light which is born with us. Otherwise we might perhaps pay some obedience to them in contemplation of their Utility, so as we observe the Directions of Physicians in regard to our Health, but not as Laws, to the Constitution of which a Superior is necessary to be supposed, and that such a one as has actually undertaken the Government of the other. 7

Note that Grotius anticipates Kant here with his qualification that the rightness of an act does not depend upon its utility but rather that it is commanded, by God’s law for Grotius and the moral law for Kant. Without that

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divine authority behind it, natural law is simply a rule of prudence without the moral weight of law demanding obedience as such. Though he denies the innateness of natural law, Pufendorf believes it is discoverable through natural reason. He holds to a rationalistic conception of natural law, indeed so much so that he believes that the truth of its precepts can be established scientifically and vouchsafed as certain: “Therefore ’tis a good Remedy . . . to accustom ourselves to the forming of certain and determinate Judgements of all Things that offer themselves to us. But we must observe further, that these Judgments ought to be drawn from genuine and solid Science, or from the Doctrine of the Laws of Nature . . . purg’d from the vain Additions of superstitious Men.” 8 Like Grotius, Pufendorf emphasizes the natural sociality of human beings who, in their common quest for self-preservation, see the advantage of aggregating into societies: So then Man is an Animal very desirous of his own Preservation; of himself liable to many Wants; unable to Support himself without the Help of other of his Kind; and yet wonderfully fit in Society to promote a common Good: But then he is malicious, insolent, and easily provok’d, and not less prone to do Mischief to his Fellow than he is capable of effecting it. Whence this must be inferr’d, that in order to his Preservation, ’tis absolutely necessary, that he be sociable, that is, that he join with those of his Kind, and that he so behave himself towards them, that they may have no justifiable Cause to do him Harm, but rather to promote and secure to him all his Interests.

The laws instituted by society for its preservation constitute the body of natural law: “The Rules then of this Fellowship, which are the Laws of Human Society, whereby Men are directed how to render themselves useful Members thereof, and without which it falls to pieces, are called the Laws of Nature.” 9 Grotius thus closely associates positive law and the law of nations with natural law. THOMAS HOBBES With Hobbes the secularization of natural law is complete. Contra Aristotle and Aquinas and a host of others, Hobbes denies that there is any telos operating in external or human nature. Hobbes takes human beings as they are. They are creatures of multiple desires demanding satisfaction, the chief of which is a Nietzschean will to power: The felicity of this life consisteth not in the repose of a mind satisfied. For there is no such finis ultimus [utmost aim], nor summum bonum [greatest good], as is spoken of in the books of the old moral philosophers. Nor can a man any more live whose desires are at an end than he whose senses and

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imaginations are at a stand. Felicity is a continual progress of the desire from one object to another, the attaining of the former being still but the way to the latter. The cause whereof is that the object of man’s desire is not to enjoy once only and for one instant of time, but to assure for ever the way of his future desire. . . . So that in the first place I put for a general inclination of all mankind a perpetual and restless desire of power after power, that ceaseth only in death. And the cause of this is not always that a man hopes for a more intensive delight than he has already attained to, or that he cannot be content with a moderate power; but because he cannot assure the power and means to live well which he hath present, without the acquisition of more.

But the chief desire common to all humanity is self-preservation to which we have a natural right, along with the right to gratify others of our desires that are within our power to do so, all of which are sanctioned by natural law whose fundamental command might be stated as, “Preserve thyself”: “‘The Right of Nature,’ which writers commonly call jus naturale, is the liberty each man hath to use his own power as he will himself for the preservation of his own nature, that is to say, of his own life; and consequently of doing anything which in his own judgment and reason he shall conceive to be the aptest means thereunto.” Correlative with this right of self-preservation is a natural law that decrees it: “A ‘law of Nature,’ lex naturalis, is a precept or general rule found out by reason by which a man is forbidden to do that which is destructive of his life or taketh away the means of preserving the same, and to omit that by which he thinketh it may be best preserved.” The most fundamental law of nature is that we ought to seek peace whenever we can, but if unable we must defend ourselves by taking up arms if necessary: It is a precept or general rule of reason “that every man ought to endeavour peace as far as he has hope of obtaining it, and, when he cannot obtain it, that he may seek and use all helps and advantages of war.” The first branch of which rule containeth the first and fundamental law of Nature, which is, “to seek peace, and follow it.” The second, the sum of the right of Nature, which is, “by all means we can, to defend ourselves.”

Hobbes distinguishes between right and law. Law dictates what one ought or ought not to do. Right permits one “to do, or forebeare” for the sake of one’s survival: “‘right’ consisteth in liberty to do or to forbear, whereas ‘law’ determineth and bindeth to one of them; so that law and right differ as much as obligation and liberty.” 10 According to Hobbes, human beings originally lived outside of civil societies in a “state of nature” which, because no positive laws existed to restrain human behavior, was a state of perpetual war, “a condition of war of every one against every one” wherein, consequently, “the life of man, [was] solitary, poor, nasty, brutish, and short.” To escape this parlous condition in the interest of self-preservation, they contracted to form themselves into civil

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societies. Through this social contract, humans transferred some of their rights or powers to a sovereign leader in exchange for his protection whose laws they in turn are obligated to obey to earn the right to that protection: “And, when a man hath . . . granted away his right, then is he said to be ‘obliged’ or ‘bound’ not to hinder those to whom such right is granted . . . from the benefit of it; and that he ‘ought,’ and it is his ‘duty,’ not to make void that voluntary act of his own; and that such hindrance is ‘injustice’ and ‘injury’ as being sine jure, the right being before renounced or transferred.” 11 In the state of nature, law carries no moral weight being merely prudential, i.e., we ought to seek peace and defend ourselves since it is in our interest to do so. Hobbes’ so-called “natural law” might be a misnomer. According to Arthur Nussbaum, “His law of nature is not a law properly so called; it denotes conclusions on how to act for the purpose of self-preservation and defense.” 12 And neither perhaps are Hobbes’ natural rights bona fide rights at all because in a state of nature no one has the correlative duty to honor them (though in civil society they do). Rights for Hobbes are nothing more than powers to act, and one’s having them is the sole justification for their exercise. In Hobbes’ state of nature, the so-called “law of the jungle” prevails according to which might makes right. Leo Strauss describes this Hobbesian conception of natural law not as a set of duties but as the right of self-preservation from which issues morality: If, then, natural law must be deduced from the desire for self-preservation, if, in other words, the desire for self-preservation is the sole root of all justice and morality, the fundamental moral fact is not a duty but a right; all duties are derivative from the fundamental and inalienable right of self-preservation. There are, then, no absolute or unconditional duties; duties are binding only to the extent to which their performance does not endanger our self-preservation. Only the right of self-preservation is unconditional or absolute. By nature, there exists only a perfect right and no perfect duty. 13

JOHN LOCKE More than any of the political philosophers preceding him, Locke makes paramount individuals and their natural rights. Locke understands natural law in its prescriptive sense as a divine law to which all positive laws must conform and never oppose, whose purpose is human preservation: “Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions must, as well as their own and other men’s actions be conformable to the law of nature, i.e. to the will of God, of which that is a declaration; and the ‘fundamental law of nature being the preservation of mankind,’ no human sanction can be good or valid against it.” 14

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Like Hobbes, Locke posits a primeval state of nature wherein all humans are in “a state of perfect freedom to order their actions and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature; without asking leave, or depending on the will of any other man,” and in “a state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another.” 15 In this natural state of their freedom and equality, humans were bound by natural law to live peaceably, to preserve their own and others’ lives, and not to harm anyone. Those who violated this law of nature are enemies to their fellow citizens and deserve punishment. To escape the inconveniences of the state of nature, humans contracted together to form themselves into civil societies. For Locke, the social contract that is the foundation of civil society is not between ruler and ruled, as it is for Hobbes, but among free and equal men with the express intent of protecting their natural rights, most fundamentally their right to property which Locke conceives of broadly as inclusive of our “lives, liberties, and estates. . . . The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.” 16 Locke, moreover, adds the significant stipulation that if a government fails to promote this end, then it has forfeited its authority and citizens, having now no obligation to obey it, have a right to rebel and overturn it. CONTEMPORARY THEORIES OF NATURAL LAW Contemporary theories of natural law did not go into the formation of classical just war theory, but they can be appealed to retrospectively to justify it. In its contemporary incarnations, natural law, except with Neo-Thomists in Roman Catholic circles, has lost entirely its metaphysical and theological underpinnings and is no longer thought of as simply awaiting translation into positive law. It is now regarded as more of a methodological principle or procedure having utilitarian value. Thus John Finnis, taking his cue from Aristotle and Aquinas, interprets natural law as those general prudential principles necessary for ordering human life in community in order to secure certain basic human goods such as human life itself, knowledge, recreation, aesthetic qualities like beauty, and religion broadly conceived. The securing of these goods will make for the good life, Aristotle’s flourishing state of human existence. Lon Fuller formulates a functionalist interpretation of natural law whose function it is to guide citizens in their pursuit of common goods, such as constraining the way human laws are made and applied in order to achieve a more just socio-political order.

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Ronald Dworkin retains something of the idea of natural law in its more traditional sense as that set of moral norms that should undergird juridical proceedings. He stipulates that adjudication in courts ought at the deepest level appeal and conform to those norms. Thus, when a particular case eludes the application of a specific law, then according to the principle of discretionary justice those pre-existent rights traditionally prescribed by natural law should be honored. This principle applies in such cases where judges must decide a case to which no positive law applies or for which there is no legal precedent. They have no choice but to exercise their discretionary judgment informed by certain moral norms. One such case is that of the German, Armin Meiwes, who cannibalized Bernd Brandes who had volunteered to be eaten after Meiwes had advertised online for a volunteer. Cannibalism was not illegal in Germany at the time. Discretionary justice must be guided by some norms in the interest of fairness and the avoidance of arbitrariness. Those norms constitute the body of natural law as Dworkin interprets it. Even in cases where laws do apply, judicial discretion is sometimes necessary to guard against “unjust” rigidity in applying the law such as in the bizarre case of Curtis Wilkerson. He received a 25 years-to-life sentence for stealing a pair of socks, his third offense, and so ran afoul of California’s Three-Strikes law. What these contemporary theories of natural law have in common, contrary to legal positivism, is that law cannot be divorced from morality insofar as it aims ultimately at achieving the moral end of a just society. The irrefragable tie between the legal and moral realms, though conceptually distinct, is further manifest in the following: First, there is the distinction between just and unjust laws and the possibility of inquiring into the justice of laws. And in judging that they are either just or unjust an appeal is tacitly made to a moral standard not determined by the laws themselves but transcending them. Second, the obligation to obey laws in general (if they are just) is not derived from any particular law but is a moral imperative logically prior to its legislation. I shall now summarize the points of agreement and disagreement among the classical natural law theorists concerning natural law. The majority of them agree on the following points: (1) Natural law exists prior to and independently of positive laws and is the standard by which to assess their justice. (2) Natural law cannot be countermanded by positive law over which it has authority. (3) Natural law, taken descriptively, is objective and universal in its extent such that all things, human and nonhuman, are subject to it; taken prescriptively, it is binding on all persons in all times and places. (4) Natural law requires a law-giver, who is God. (d) Natural law is discoverable through reason with whose dictates it is consonant. (e) Natural law is coordinate with the law of nations. (5) Natural law entails natural rights.

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However, there are disagreements over the following issues: (a) whether emphasis should be put on both the descriptive and prescriptive senses of natural law or on the prescriptive sense alone; (b) whether natural law is an innate idea in the human mind or needs to be discovered through the exercise of reason; (c) whether the knowledge of natural law comes from a priori deduction or, instead, from a posteriori induction; (d) whether the law of nations is the same as natural law or derived from it; (e) whether it is possible to have purely secular conceptions of natural law, like those proposed recently, stripped of their theological or religious presuppositions such as belief in God. NOTES 1. Alberico Gentili, De Iure Belli, Libre Tres; quoted in David Boucher, The Limits of Ethics in International Relations: Natural Law, Natural Rights, and Human Rights in Transition (Oxford: Oxford University Press, 2009), 80, 92. 2. Hugo Grotius, “The Preliminary Discourse,” in The Rights of War and Peace, Bk. 1, ed. Richard Tuck, Natural Law and Enlightenment Classics (Indianapolis, IN: Liberty Fund, Inc., 2005), 94, 98. 3. Grotius, “What War is, and what Right is,” in Rights of War and Peace, Bk. 1, 150–51, 151–53, 82, 90–91. 4. Ibid., 91, 111, 123–24. 5. Ibid., 91, 180, 79–81, 85–86. 6. Hugo Grotius, The Free Sea, trans. Richard Hakluyt, Natural Law and Enlightenment Classics (Indianapolis, IN: Liberty Fund, Inc., 2004), 130. 7. Samuel Pufendorf, The Whole Duty of Man According to the Law of Nature, trans. Andrew Tooke, Natural Law and Enlightenment Classics (Indianapolis, IN: Liberty Fund, Inc., 2003), 56, 56–57. 8. Samuel Pufendorf, Of the Law of Nature and Nations, trans. Basil Kennet, 3rd ed. (London, 1717), 30. 9. Pufendorf, Whole Duty of Man, 55–56. 10. Thomas Hobbes, Leviathan, in The English Works of Thomas Hobbes, ed. William Molesworth (London: John Bohn, 1839), 3: 85–86, 116, 116–17. 11. Ibid., 113, 119. 12. Arthur Nussbaum, A Concise History of the Law of Nations (New York: The Macmillan Company, 1947), 112. 13. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 181. 14. John Locke, Two Treatises of Government, in Two Treatises of Government and A Letter Concerning Toleration, ed. Ian Shapiro (New Haven: Yale University Press, 2003), 160. 15. Ibid., 101. 16. Ibid., 155.

Chapter Eight

A Critique of Natural Law

This critique of natural law, negative and positive, is directed at the classical theory of it, particularly at its metaphysical and theological claims, and not at its recent formulations less dependent on metaphysics and theology. Objections to natural law cluster around certain topics, viz., logical or conceptual, scientific, and historical; others have been raised by certain men like Reinhold Niebuhr and John Stuart Mill. LOGICAL OR CONCEPTUAL OBJECTIONS 1. Writers on natural law disagree as to its definition, which is noted by Hobbes: “All authors agree not concerning the definition of the natural law, who do very often make use of this term in their writings.” 1 As well as by Rousseau, who notes that natural law theorists disagree over whether to use the term in its descriptive or prescriptive sense: The Roman jurists . . . subject man and all other animals indifferently to the same natural law, because they take this expression to refer to the law that nature imposes on itself rather than the law she prescribes or rather because of the particular sense in which those jurists understood the word “law,” which on this occasion they seem to have taken only for the expression of the general relations established by nature among all animate beings for their common preservation. The moderns, in acknowledging under the word “law” merely a rule prescribed to a moral being, that is to say, intelligent, free and considered in its relations with other beings consequently limit the competence of the natural law to the only animal endowed with reason, that is, to man. 2

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Disagreement over the meaning of “natural law” casts doubt on its very existence. 2. Related to the ambiguity of the term “natural law” is the ambiguity of the term “nature,” which Michael B. Crowe comments on as follows: It is by now a commonplace to note that the word “nature” is one of the most ambiguous of philosophical terms. Lalande’s standard Vocabulaire technique et critique de la philosophie lists some eleven meanings for ‘nature’ and thirteen for ‘naturel.’ Raimundo Paniker, in 1931, recorded no less than twenty meanings for ‘nature,’ meanings discussed and tabulated more recently by Philippe Delhaye. In the context of natural law alone Erich Wolf listed nine meanings for ‘nature.’ But almost any book on the natural law can provide a similar exposure of the ambiguities in the term. More often than not it is taken for granted that this effectively disposes of any idea of an unchanging natural law. 3

The multiple meanings of “nature” means that it has no clear referent. Moreover, Norbert Bobbio has pointed out that “nature” is such an equivocal term that contrary laws of nature have been thought natural. 4 3. Natural law is a conceptually incoherent idea because it confuses two quite distinct conceptions of law, viz., the positive or legislated law and scientific law. More particularly, it conflates the prescriptiveness of positive law with the descriptiveness of scientific law, a category mistake. This objection assumes that positive law and scientific law are mutually exclusive—either a law is prescriptive or descriptive, but not both. Further, scientific laws have lost their previous ontological status: they are currently understood not as hard-and-fast actual principles operating in nature but rather as statistical generalizations from observable and recurrent patterns of natural events. Thus, the idea that somehow there are objective and universal moral laws, patterned on the old conception of scientific laws which are somehow woven into the fabric of the universe, is itself obsolete. 4. Natural law theory commits the so-called “naturalistic fallacy,” first detected by David Hume and later named by G. E. Moore. Hume noted that from certain facts about nature and human nature one cannot logically deduce moral obligations. Doing so is a fallacy: An injunction as to what ought to be done cannot be logically derived from a statement as to what is the case; that is, an “ought” cannot be validly inferred from an “is.” There is, then, an unbridgeable conceptual gap between facts and values. Thus, natural law theory, in supposing that what is the case, say, the natural end of human perfection, dictates

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how we ought to behave, commits the naturalistic fallacy, though this is contingently but not necessarily so if natural law is both prescriptive and descriptive. 5. It is not clear that inclinations toward a goal ought to be followed as natural law dictates. According to Aquinas, only reasonable inclinations ought to be followed. But what makes them reasonable: “Are they reasonable because natural, or natural because reasonable?” 5 Answering this question risks circularity. Further, why should an inclination deemed natural and reasonable be considered obligatory to follow? Or why should its thwarting, or its partial following, or its being followed without regard to its proper purpose, be forbidden? 6 6. The classical doctrine of natural law presupposes the existence of a cosmic lawgiver identified as God. However, the existence of God may be doubted or denied, which means the theory collapses like a house of cards (though this objection does not apply to some recent nontheistic versions of natural law). 7. The obligation to obey natural law is based on faith either in God or in its enforceability by the civil authorities. However, if this faith is lacking, there is no obligation, other than prudential reasons, to obey it, which means natural law, according to J. B. Noone, is reduced to a merely academic issue: There is a natural law which man can grasp independently of any knowledge of God. It is natural in the sense that in a given set of circumstances man by a combination of simple reason and conscience can know what is right and wrong, just and unjust. However, its obligatory character is conditional. In the one case it depends on the ascertainable fact of human enforcement, and in the other, on a strong inner faith in the existence of God. If both of those faiths are in vain, the whole question of natural law becomes at best academic, and the ideal of moral freedom, quixotic. 7

8. Natural law is an unverifiable metaphysical concept empty of meaning, according to the philosophical school of logical positivism. And according to the psychological school of behaviorism, there is no such thing as human nature apart from complex patterns of human behavior. SCIENTIFIC OBJECTIONS 9. There is no place for natural law with its teleological orientation in the worldview of modern science. Science concerns itself no longer with discovering the purposes or final causes in nature but exclusively with

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the discovery of efficient causes. Natural law, moreover, is quite incompatible with science’s mathematical and mechanistic model of the universe. Mathematics and the sciences founded upon it are not teleological, as Yves R. Simon remarks: The reasons why teleological notions are held suspicious by the scientific mind are numerous. One of the most profound is already familiar to us: there are no natures and no final causes in mathematics. When we watch a geometrical figure or an equation develop its properties, we are aware that it is not in order to achieve a better state of affairs that this equation or this figure is effecting this development. Indeed, “effecting” here is purely metaphorical. The properties of a mathematical essence are not effected by this essence, they are identical with it and all the development takes place in our mind. Accordingly, whenever the interpretation of nature is mathematical, and insofar as it is mathematical, final causes are out of the picture. This is not an accident, and no misunderstanding is involved. The exclusion of final causes from every science where mathematical forms predominate follows upon the laws of mathematical abstraction and intelligibility. 8

Finally, the classical conception of natural law presupposes a rational cosmos that is fundamentally good and teleologically ordered, of which natural law is an expression. However, nature cannot be pronounced neither unambiguously rational, morally good, nor purposeful. The quantum world is full of things that are inexplicable according to the standards of human logic. And the natural world is full of things we think evil such as cruelty, death, and destruction. Given the Darwinian characterization of nature as “red in tooth and claw,” it is hard to see how it can be characterized as benign or the source of human values. The theory of evolution by natural selection discloses a nature that is normatively neutral as well as purposeless. Henry Veatch comments as follows on natural law’s inability to derive values either empirically or logically from the facts of nature: One had only to reflect on the character of the natural world, as this had been disclosed by the scientists, and one could readily see that neither value distinctions nor moral distinctions could possibly have any place in nature. Facts were not values; nor was there any way that values could be said to have a place in the world of facts. And even worse for natural law doctrines, was the eventual impact of teachings like those of Hume, who maintained that there is no way in which an “ought” can ever be derived from an “is.” 9

10. According to its theory, natural law is discoverable through the exercise of human reason, a God-given faculty reflecting divine reason. However, an alternative view of human reason, amply supported by

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science, is that the rational part of human nature is not a divine creation but the result of the apparently blind forces of evolution by natural selection. The doctrine of natural law treats human reason like divine reason as an absolute faculty that transcends history and nature. However, reason is contingent upon and conditioned by its evolutionary history, and not without its limitations. 11. There is no stable human nature, its having been modified in its biological and cultural evolution. Moreover, the future modification of human nature, in ways that are hardly foreseeable, is expected through genetic engineering and the harnessing of human with artificial intelligence. According to P. Heelan, “Human nature will continue to evolve, mostly through the mass effect of applied science in transforming human subjectivity.” 10 HISTORICAL OBJECTIONS 12. Beginning in the nineteenth century, it has been understood that moral norms as to what is right and wrong, good and bad, just and unjust, have evolved over time and are conditioned by their historical context, not determined by a supposed telos outside of time. 13. Hobbes’ and Locke’s state of nature has no historical basis but is merely a theoretical construct. Contracts, like the social contract out of which civil society is formed, are meaningless apart from laws to enforce them, laws that did not exist before the formation of civil society. According to Jeremy Bentham, a social contract antedating the formation of civil society is a fiction. Even if a social contract were made in the state of nature, those contracting it would not be legally obligated to honor it. Contracts are created by and derive their obligatory force from law; contracts themselves do not create law. And according to Hume, an historian as well as a philosopher, governments are established by conquest, not by contract. People obey the civil law not from a sense of obligation to an abstract social contract, but from the threat of force if they do not. 14. The diversity of sometimes conflicting moral codes suggests the absence of an overarching and uniform natural law of which they are an expression. Locke early on noted this, which has been amply backed up by subsequent ethnological data: He that will carefully peruse the history of mankind, and look abroad into the several tribes of men, and with indifference survey their actions, will be able to satisfy himself that there is scarce that principle of morality to be named, or rule of virtue to be thought on . . . which is not, somewhere or other, slighted and condemned by the general fash-

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(This notwithstanding, Locke still held to a belief in natural law.) REINHOLD NIEBUHR’S OBJECTIONS The objections to natural law, specifically in its Catholic or Scholastic form, are made by the Protestant theologian, Reinhold Niebuhr. 15. External natural laws cannot guarantee the worthiness of the motives for acting in conformity to them—one may conform out of abject fear, for example; there is an element of compulsion in this—do it or else— which negates the freedom essential to moral decision-making which Kant insists upon. 16. Natural laws, being abstract and general, are inadequate guides to actions given the complexity of typical moral decisions “amidst the infinite possibilities of good and evil which every action presents in both its internal and external facets.” 12 This is an argument against casuistry, the justification of moral judgments by appealing mechanically to ethical precepts without regard to the context calling for moral judgment. 17. Natural law turns relative moral judgments into absolute ones. The Catholic and Scholastic doctrine of natural law, Niebuhr says, “constantly insinuates religious absolutes into highly contingent and historical moral judgments. Thus the whole imposing structure of Thomistic ethics is . . . no more than a religious sanctification of the relativities of the feudal social system as it flowered in the thirteenth century.” 13 18. God, and even humanity, transcend any natural law: “It is because He [God] transcends the ‘laws of nature’ in His freedom that he can set a law for man, who in his limited way transcends the ‘laws of nature’ and cannot be bound by them.” 14 (Note that Niebuhr’s allowing that God himself, as the creator of natural law, is not bound by it is a tenet of the voluntaristic Protestant version of the doctrine of natural law.) 19. Because of human freedom even human reason is corruptible as well as the natural law presumed to be its dictate: There is therefore no uncorrupted natural law. . . . The freedom of man sets every standard of justice under higher possibilities, and the sin of man perennially insinuates contingent and relative elements into the supposedly absolute standards of human reason. Undue confidence in human reason, as the seat and source of natural law, makes this very concept of law into a vehicle of human sin. It gives the peculiar conditions and unique circumstances in which reason operates in a particular historical moment, the sanctity of universality. 15

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20. Natural law theory treats reason as an absolute when it too may be contingent upon and conditioned by history (as previously noted), though this criticism perhaps applies to the rationalistic Catholic version of the theory not to the voluntaristic Protestant one. Moreover, on Niebuhr’s view, the justice embedded in natural law is never absolute; its demands are in principle always trumped by the call for love: There is no justice, even in a sinful world, which can be regarded as finally normative. The higher possibilities of love, which is at once the fulfillment and the negation of justice, always hover over every system of justice. . . . And because man is not merely creature but also free spirit, and because every moral norm stands under higher possibilities by reason of his freedom, there is no moral standard at which the human spirit can find rest short of the standard of “faith, hope, and love.” 16

JOHN STUART MILL’S OBJECTIONS Mill begins his critique of natural law by defining “nature” as “a collective name for all facts, actual and possible: or . . . a name for the mode, partly known to us and partly unknown, in which all things take place.” And he recalls the ancient definition of “natural law” as “quod natura omnia Animalia docuit” (that nature has taught all living things). Natural law theorists, according to Mill, “think that the word Nature affords some external criterion of what we should do; and if they lay down as a rule for what ought to be, a word which in its proper signification denotes what is, they do so because they have a notion, either clearly or confusedly, that what is, constitutes the rule and standard of what ought to be.” Natural law theory, then, makes “Nature a test of right and wrong, good and evil, or which in any mode or degree [attaches] merit or approval to following, imitating, or obeying nature.” 17 21. The term “law” is ambiguous, an objection noted above: It “has distinctly two meanings, in one of which it denotes some definite portion of what is [scientific], in the other, of what ought to be [positive].” Scientific laws (laws of nature) “are neither more nor less than the observed uniformities in the occurrence of phenomena: partly uniformities of antecedence and sequence, partly of concomitance.” Positive laws are “the laws of the land, the law of nations, or moral laws.” 18 Although Mill does not expressly say it, the term “natural law” conflates and confuses these two meanings, as indicated earlier. 22. If “nature” means the entirety of things together with all their attributes, it is meaningless to say that humans ought to follow nature since

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they, along with all other species, cannot help but do so for everything they do is a following of nature. Human beings necessarily conform to the scientific laws of nature and with sufficient knowledge may be guided by them. If, on the other hand, “nature” means things as they would be without human intervention, then to insist that we ought to follow nature by not interfering with its natural course would be irrational because out of necessity human beings interfere with it through technology and medicine to their benefit. To demand that people obey natural law by permitting nature simply to run its course, which it would without human interference, would preempt all human improvements of nature, a reductio ad absurdum: “If the natural course of things were perfectly right and satisfactory, to act at all would be gratuitous meddling, which as it could not make things better, must make them worse. . . . If the artificial is not better than the natural, to what end are all the arts of life? To dig, to plough, to build, to wear clothes, are direct infringements of the injunction to follow nature.” 19 23. Following nature by using it as a model for human behavior, as prescribed by natural law, would be immoral: Immoral, because in the animal kingdom one is either predator or prey; to adopt this principle in the human world would be morally abhorrent. An attempt at such an adoption was Social Darwinism which mandates that natural selection be allowed to operate in society to ensure the survival of its fittest members. Moreover, nature does not intend the good of human or any other beings. Any good redounding to us from nature is either unintentional on nature’s part or largely a result of human activity. We ought not to imitate nature, as prescribed by natural law, but to improve her by aligning ourselves with her beneficial tendencies. 24. The idea of natural law as a higher principle of justice refers to nothing actual in nature, human or external; it is simply an abstraction derived from and dependent on the justice embodied in civic law and practiced in courts. Natural law has no existence independent of human tribunals according to Mill: “The notion of a higher justice, to which laws themselves are amenable, and by which the conscience is bound without a positive prescription of law, is a later extension of the idea, suggested by, and following the analogy of, legal justice, to which it maintains a parallel direction through all the shades and varieties of the sentiment, and from which it borrows nearly the whole of its phraseology.” 20

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THE REHABILITATION OF NATURAL LAW The rehabilitation of natural law depends on replying to some of the above objections, which is undertaken below: 1. With respect to the lack of consensus as to the precise meaning of “natural law” with the implication that it has no referent. This does not imply its nonexistence. There are many terms referring to ultimate things such as “causation,” “existence,” “time,” and “space” which do not admit of exact, definitive, and noncontroversial definitions. “Natural law” might be one of them. But that does not mean that there is nothing objectively out there answerable to them. Indeed, practically speaking, we understand enough about the meaning of these terms, though lacking precise definition, to use them properly. As Aristotle advises us, we should not expect the same degree of precision in speaking of moral matters as in speaking of the natural sciences. Perhaps thinking about natural law has the function, if nothing else, of reminding us that the moral realm is ultimately no less mysterious than the physical one, which is perhaps the more reason for speaking of it. 21 By the way, this idea that both the moral and physical universes are at bottom mysterious evokes Kant’s idea of the noumenal, that unknowable realm beyond the phenomenal world of space and time which is not only the source of the latter but of the moral law as well. Hamlet’s dictum, “There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy,” 22 is apposite here. 2. With respect to science’s non-teleological view of nature. That teleological explanations of nature have fallen out of fashion in scientific circles does not mean that nature may not in fact operate teleologically. Karl Popper among others believes that the role of science is to describe nature not as she really is but as she appears within a preconceived conceptual framework pragmatically justified. Veatch comments in the following on Popper’s “logic of scientific discovery” as relying almost exclusively on the “hypothetic-deductive method”: If such be the nature of scientific method, then it would seem to follow that science is not really interested in achieving a knowledge of nature and reality at all. Instead, rather than being concerned to know what nature is, or is like, in itself, the modern scientist may be said to be concerned only with nature as it appears to be, depending upon the particular conceptual framework or set of hypotheses in terms of which the scientist happens to be viewing nature at a given time. In other words, the objective of science is to control and manipulate nature, and not necessarily to know it as it is in itself at all. 23

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Popper’s view of science as providing us with only a conceptual simulacrum of nature but not its actuality does not preclude the possibility of nature’s having a teleological character after all, though outside the purview of science. Furthermore, current scientific accounts of nature suggest that a teleological interpretation of her may indeed be plausible. 24 For example, Holmes Rolston III, the environmental ethicist, suggests that a telos may be operating in nature. Nature acts (or seems to) purposively. He speaks of an ecosystem’s “pro-life tendency”: “An ecosystem has no head, but it heads toward species diversification, support, and richness. Though not a superorganism, it is a kind of vital field.” 25 This recalls Aristotle’s teleological conception of nature. Chemistry, and particularly biology, on Simon’s view, have never fully abandoned teleological explanations: In its factual development, the modern science of nature—in all its parts but especially when it has to deal with living things—has continued to accept a few principles which have nothing to do with mathematics, principles connected with the notion of nature such as it was worked out by the Greeks and best expounded by Aristotle. With all our mechanistic good will, a chemical remains a thing ready to bring about definite effects under definite circumstances. Do you recognize a discreet expression of finality in this notion of readiness? This is how we keep arguing about teleology. 26

However, one must be cautious in speaking of nature’s supposed telos or purposiveness. Tendencies and functions do not necessarily imply purposes. A purpose presupposes a mind to entertain and implement it, in the case of nature a cosmic mind or God. Functions and tendencies do not presuppose that and are unintentional. Whatever the verdict of science as to the operation of a telos in nature, I think we can speak intelligibly of one operating in human nature; that is, natural law in its descriptive sense may be passé, but not necessarily in its prescriptive sense. We intuit that some states of human existence are superior to others. Thus, to actualize our talents, which Kant thought an imperfect duty, is superior to leaving them as mere potentialities. Our acquisition of knowledge is better than our remaining in ignorance. Our state of being happy is better than that of misery. A just society is preferable to an unjust one. Peace is more desirable than war. Moreover, we spontaneously or naturally incline to the realization of these goods or more nearly perfect states of affairs. Similarly, with a nod to natural law in its descriptive sense, we are inclined to regard the healthy state of the natural world as better than a diseased one, its flourishing as superior to its decaying. This inclina-

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tion is itself a teleological orientation with which we are programmed, as it were, for reaching worthwhile goals that are part and parcel of our overall well-being. As Simon puts it: Before natural law exists in our minds as a proposition [an object of cognition] it exists in things. All other things being equal, we hold that it is better to live than to die, that it is better that mothers should take care of their babies rather than dispose of them, . . . . This is so because of what these things are: because man is a being, because a mother is a mother, because human beings are rational agents. We express these natures rationally, and we have the first component of the definition of law: it is a work of the reason. But notice that it is a reason measured by things, which bows before things: that is what we mean when we say that those things are right by nature. The natural law exists in nature before it exists in our judgment, and it enjoys the latter existence—that is what natural law means—by reason of what the nature of things is. 27

3. As to the theory of natural law’s committing the naturalistic fallacy. Arguably, values themselves are as objective as facts of nature and not merely our subjective responses to them. That an acorn tends to become an oak is an objective fact about it. And its status as an oak tree is superior in value to its status as an oak acorn since it is an actualization of its potential. Here then is an example of a natural value. Values, though, are subjective insofar as they relate to a human subject or agent. Values subjectively considered resemble factual goals or perfections which we strive to achieve by prudent choices according to Veatch: Facts are viewed as values, when we consider them as the mature unfolding or actualizations of human potentials. Human values are also, indeed, facts to the degree that these perfecting actions are worthwhile and obligatory for us humans if we aim to realize our natural potential. For example, such human values as wisdom or courage are certainly facts; but as facts they are no less developmental achievements which represent the realization of a person’s earlier potentialities. 28

Rolston closes the alleged gap between facts and values. He contends that value (ought) is not so much derived from fact (is) but is simultaneously discovered along with it. Values and facts alike seem to be properties of nature: What is ethically puzzling and exciting is that an ought is not so much derived from an is as discovered simultaneously with it. As we progress from descriptions of fauna and flora, of cycles and pyramids,

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Rolston’s point, I think, can be illustrated as follows: Children are adept at recognizing unfairness. When they think they see an unfair situation (fact) they spontaneously condemn it as not being fair (value). This condemnation is not the result of a deliberate inference or the conclusion of a syllogism since they do not know syllogistic logic but use instead a “natural logic.” This fact and this value occur together in the situation and in their minds. Aquinas too, notes Crowe, affirms the coexistence of facts and values in his first precept of natural law: It may be admitted that if the natural law were to consist essentially in deriving a conclusion containing a moral term from premises that are purely factual, then the reasoning would be fallacious. But this is far from being the only possible understanding of the natural law. One recalls the position given to the first principle of the moral order: “Good should be done and evil avoided,” in the natural law theory of St. Thomas. Note that this first principle already contains the moral terms “good” and “evil,” thereby making it a normative judgment that is not deduced from any facts. He was certainly not one of those who believed that the moral term was introduced surreptitiously in the conclusion; he belongs to the large number of philosophers who hold that there must be an intuitional element in every ethical system . . . he spoke in his earlier works of the synderesis and, in his later works, of the habitual knowledge of the first principles of the practical reason, which are the first precepts of the natural law. 30

4. With regard to the diversity and even conflicts among the moral codes of different cultures. A common core of moral precepts is discernible in all moral codes however culturally conditioned which Charles Fay reports thus: Every society forbids lying, murder, and stealing because of needs experienced by all men. But some acts are regarded as unjust homicide or theft in one culture but not in another; nevertheless, a stranger to a certain culture can ordinarily recognize that an act of theft, say, is stealing and is unjust, and he disapproves in the light of appetites shared with the members of the alien culture. There are cross-cultural parallels in human appetition which are not accounted for by cultural

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conditioning, and these parallels impose limits on variability and evolution in morals. 31

Further, that conduct considered moral in one society is not by another does not entail that there is no objective standard of morally right conduct. In fact, some societies may be blind as to what constitutes right conduct because of their own corrupt natures. Or, that conduct deemed right (or wrong) by the lights of modern society was not so by an earlier one does not imply that there is no objective standard of moral rightness since knowledge of that standard may take time to acquire. There is moral progress in some respects as there is scientific. 5. With respect to the mutability and malleability of human nature over time. The changes in human nature wrought by biological and cultural evolution notwithstanding, continuities throughout them are discernible, as Fay remarks: Yet, in spite of profound changes introduced by human evolution, changes which alter man’s being as a whole, no essentially new mode of activity has emerged since, say, Zijnjanthropos. . . . While there is every reason to believe that life is exercised on ever higher levels, all the changes introduced are accidental with regard to man’s common nature as a rational animal. A more upright posture, a less simian face, a central nervous system both bigger and better organized for symbolic life: these are accidental modifications which do not require a new nature. 32

6. Concerning the questionable historicity of a primeval state of nature wherein the law of nature held sway and out of which people contracted to form civil societies. The state of nature may be reconceived as a hypothetical construct, still retaining its explanatory power, to justify civil society instead of as an actual historical period. Finally, even if the classical theory of natural law with its metaphysical and theological underpinnings is abandoned, its aforementioned contemporary incarnations still have some credibility, such as Finnis’s conception of natural law as a methodological principle; Fuller’s functionalist interpretation of it as a constraint on human laws; Dworkin’s understanding of natural law as that body of fundamental ethical norms that should underlie and determine the judicial process. I have replied only to some of the above objections to natural law, but that is enough to show, I think, that the case against natural law is not ironclad. Other objections, though, still stand, such as widespread disagreement as to its meaning; its conflation of the descriptive sense of law (scientific) and the prescriptive (legislated); its dubious presupposition of a divine law-giver

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(God); the problem of establishing its obligatoriness; its lack of empirical verification; its casuistical nature; its reliance on a historically conditioned but finite and corruptible human reason; its stipulation that human beings ought to follow nature, which is redundant, since they cannot help but do so; its conception of nature as a moral realm when in fact it is amoral, and imitating it would be immoral; its abstraction from human positive law without which it would have no existence. Whether or not one finds natural law still persuasive given these remaining as yet unrefuted objections depends on whether one thinks the force of the refuted objections exceeds that of the remaining unrefuted ones. The remaining objections notwithstanding, a case can yet be made for natural law, with the following reasons being adduced in its favor: First, it gives expression to our deepest, most moral intuitions as to the justice of laws thereby providing a check on their arbitrariness and redeeming us from nihilistic relativism, a point corroborated by Louis Monden: Historically, the appeal to the natural law has arisen precisely from the resistance of personal conscience to the arbitrariness of written laws; it appealed to an unwritten law, an inborn knowledge of what man ought to do and ought not to do in order to be and to become authentically himself. Among the great classical authors that meaning of the natural law has been maintained in all its integrity. 33

The function of natural law, whatever its conception, is to eliminate arbitrariness in the positive law: “It is worth remarking that the placing of limits upon the arbitrary exercise of political or legislative power may well be said to have been the historical function of the doctrine of a natural law and, in fact, the thread of continuity linking its various forms in successive historical epochs.” 34 Second, even if natural law is no longer considered a bona fide law existing in its own right and supreme over positive law, nonetheless it has left its traces in positive law as Crowe notes: “It is no longer regarded as necessary to demonstrate that the natural law is law, just like civil law, and of a superior kind that must take precedence over civil law. It transpires, on the other hand, that certain concepts enshrined in civil law—‘legality,’ or ‘due process’ or ‘equality before the law’—turn out to be very like, if not actually assimilable to, a doctrine of natural law.” 35 For Philip Selznick these are normative concepts indicating that the legal realm cannot be cordoned off from the moral realm, moral principles being built into the legal code: “The subtlety and scope of legal ideas, and the variety of legal materials, should give pause to any effort to define law within some simple formula. The attempt to find such a formula often leads to a disregard for more elusive parts of the law and excessive attention to specific rules.” 36 These elusive parts, presumably, are the moral parts which Hegel designates as Sittlichkeit,

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“the system of habitual or customary conduct, ethical rather than legal, which embraces all those obligations of the citizen which it is ‘bad form’ or ‘not the thing’ to disregard. . . . And it is this distinctive sense of obligation that is the chief foundation of society.” 37 Third, natural law provides a rational justification for natural or human rights; without it they would be deprived of a solid philosophical foundation. And fourth, natural law, in Niebuhr’s words, “typifies the quest for the most authoritative general norm” and its principles “invariably emphasize justice, rather than order, as the basic norm of political and economic life.” 38 It aspires to universality insofar as its normative principles “transcend the positive enactments of historic states” which “are generated in the customs and mores of communities” which themselves “may rise to universal norms which seem to have their source not in particular communities but in the common experience of mankind.” 39 It is sufficient for its universality and objectivity that natural law does not have to be reified as an ontological principle embedded somehow in the structure of the universe, but simply regarded as a principle inherent in the human mind, much like Kant’s categories of the understanding. There is then a division of the house concerning the meaning, validity, and reality of natural law. There are pros and cons on both sides of the issue. That natural law is defensible is reason enough for not scuttling it. Whatever the ontological status of natural law, whatever the conception of it, whenever it may be asked whether any positive law is just, there is a tacit appeal to or acknowledgement of something like natural law. Indeed, “In practice,” remarks Simon, “we all act as if there were a natural law with standards for measuring human behavior. In theory, however, some have trouble incorporating a natural law of mankind into an overall system.” 40 And as we shall see in a subsequent chapter, natural law persists as the foundation of just war theory; indeed, it is embodied in the very idea of the justice of war. Thus, natural law, if rehabilitated, would be the rock on which to build our moral house and provide a bulwark against the scourges of moral subjectivism and relativism together with the realism of realpolitik which deny that there can be any ontologically grounded ethics or its applicability to foreign policy, respectively. If natural law, in some sense, does in fact exist, then there is an indisputable moral horizon to life which environs international relations and which policies concerning war and peace must take into account. Natural law, far from being dead, is alive and well in normative ethical theory, just as Latin is not a dead language insofar as it lives on in the roots of English and other modern European languages. Aristotle’s aretaic or virtue ethics, Kant’s deontological ethics, and Mill’s utilitarian ethics exhibit a strong kinship with natural law, at least as classically formulated by Aristotle, Cicero, and Aquinas. Natural law is in their DNA as it were. Thus aretaic ethics and utilitarianism share its teleological orientation, whereas deonto-

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logical ethics invokes the moral law, natural law by another name. These various strands of moral thought can be woven into a tapestry forming a backdrop to just war theory. NOTES 1. Thomas Hobbes, Philosophical Rudiments Concerning Government and Society, in The English Works of Thomas Hobbes, ed. William Molesworth (London: John Bohn, 1941), 2: 14. 2. Jean-Jacques Rousseau, Discourse on the Origin of Inequality, trans. Donald A. Cress (Indianapolis, IN: Hackett Publishing Company, 1992), 12-13. 3. Michael Bertram Crowe, The Changing Profile of the Natural Law (The Hague: Martinus Nijhoff, 1977), 255-256. 4. Crowe, Changing Profile of the Natural Law, 256. 5. Ibid., 284. 6. Perhaps Aquinas’ principle of prima principia per se nota (known to be true selfevidently or intuitively) might be invoked here. It may be intuitively or self-evidently true that, in some sense, “reasonable” and “natural” are synonyms. 7. J. B. Noone, Jr., “Rousseau’s Theory of Natural Law as Conditional,” in Journal of the History of Ideas 33, no. 1 (Jan.–Mar., 1972): 42. 8. Yves R. Simon, The Tradition of Natural Law: A Philosopher’s Reflections, ed. Vukan Kuic (New York: Fordham University Press, 1965), 47–48. 9. Henry Veatch, “Natural Law: Dead or Alive?,” Literature of Liberty: A Review of Contemporary Liberal Thought 1, no. 4 (October–December 1978): 19. 10. Patrick A. Heelan, “Nature and its Transformations,” Theological Studies 33 (1972): 502. 11. John Locke, An Essay concerning Human Understanding, in The Works of John Locke, 12th ed. (London: 1824), 1: 40. 12. Reinhold Niebuhr, The Nature and Destiny of Man (New York: Charles Scribner’s Sons, 1964), 1: 60, 13. Ibid., 220–21. 14. Ibid., 141. 15. Ibid., 281 16. Ibid., 285–86. However, Niebuhr’s invoking the theological virtues of “faith, hope, and love” as transcending and checking moral norms like justice may be inappropriate within the framework of a secular just war theory. Moreover, he thinks that religious principles supersede moral ones. But this is doubtful. Of even the most exalted religious principles like faith and love it can be asked, “Yet, are they moral?” The blind faith of the murderous jihadist in his cause, and his love for the Qur’an inspiring him to murder its desecrator, are hardly moral. The religious realm is subordinate to the moral. However, Niebuhr makes an important point. The principle of justice is abstract, vague, and general, requiring the utmost discretion in its application (as Aristotle reminds us). We may convince ourselves that we are being just when in fact we are not. A healthy awareness of our fallibility should ever accompany our moral judgements, even when presumably rational. 17. John Stuart Mill, “Nature,” in Three Essays on Religion, ed. Louis J. Matz (Peterborough, ON: Broadview Editions, 2009), 67, 69, 71. 18. Ibid., 72. 19. Ibid., 75–76. 20. Ibid., 96. Note, this is a Nominalist objection to natural law. 21. Simon, Tradition of Natural Law, 40. 22. William Shakespeare, Hamlet, in The Complete Works of Shakespeare, ed. David Bevington, 4th ed. (New York: Longman, 1997),1.5.175–76. References are to act, scene, and line. 23. Veatch, “Natural Law: Dead or Alive?,” 28. 24. See William A. Wallace, Causality and Scientific Explanation: Classical and Contemporary Science, vol. 2 (Ann Arbor, MI: The University of Michigan Press, 1974).

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25. Holmes Rolston III, “Why Species Matter,” in Donald VanDeVeer and Christine Pierce, eds., The Environmental Ethics & Policy Book: Philosophy, Ecology, Economics, 3rd ed. (Belmont, CA: Wadsworth, Cengage Learning, 2003), 481. Writing in the same vein as Rolston, Robert Corrington has recently argued for a dynamic naturalism, which he calls “ecstatic naturalism,” according to which a telos operates in nature. See his Nature and Spirit: An Essay in Ecstatic Naturalism (New York: Fordham University Press, 1992). 26. Simon, Tradition of Natural Law, 48. 27. Ibid., 137. 28. Veatch, “Natural Law: Dead or Alive?,” 27. 29. Rolston III, “Why Species Matter,” 483–84. 30. Crowe, Changing Profile of the Natural Law, 284–85. 31. Charles Fay, “Human Evolution: a Challenge to Thomistic Ethics,” International Philosophical Quarterly 2, No. 1 (February, 1962), 63–64. 32. Fay, “Human Evolution,” 60. 33. Louis Monden, Sin, Liberty and Law, trans. Joseph Donceel (New York: Sheed and Ward, Inc., 1965), 89. 34. Crowe, Changing Profile of the Natural Law, 278. 35. Ibid., 277. 36. Philip Selznick, “Sociology and Natural Law,” 6 Nat. L.F. 84 (1961), 97. 37. Richard Burdon Haldane, “Higher Nationality: A Study in Law and Ethics,” in Selected Addresses and Essays, Essay Index Reprint Series (Freeport, New York: Books for Libraries Press, 1928), 68, 69. 38. Reinhold Niebuhr, “The Development of a Social Ethic in the Ecumenical Movement,” in The Sufficiency of God, ed. R. M. Mackie and C. C. West (London: SCM Press Ltd., 1963), 121–22. 39. Reinhold Niebuhr, Christian Realism and Political Problems (New York: Charles Scribner’s Sons, 1953), 148. 40. Simon, Tradition of Natural Law, 125.

Chapter Nine

Natural Rights

Correlative with natural law are natural rights. As natural law is the foundation of just war theory, rights, either their preservation or restoration, are a just cause for war. So it is to the issue of rights that I now turn. This issue has to do with the following questions: (a) What are rights? (b) What philosophical or rational justification can be found for them, if any, such that we are entitled to them? As the justice of war requires a solid foundation in normative ethical theory, so too rights require a similar foundation to justify waging war in their defense. DISTINCTIONS At the outset, though, some distinctions need be kept in mind. One is the distinction between natural, human, and civil (legal) rights. Rights are spoken of as “natural” when they are thought to be from nature or God, i.e., grounded in natural law; as such they are irrefragable. Such are those rights declared in the American Declaration of Independence as being unalienable and vouchsafed to humans by their Creator. Rights are spoken of as “human” when they are thought to belong to human beings in virtue of their humanity, not necessarily from their being grounded in natural law, yet still irrefragable. Civil rights are the self-same human or natural rights sanctioned by a government which guarantees them. Some, like Hersch Lauterpacht, 1 though, make no distinction between natural and human rights tracing them both to their common origin in natural law. According to him, to sever human rights from the divine sanction of natural law would be to deprive them of their moral force. However, David Boucher, contra Lauterpacht, argues that the human rights movement is quite distinct from the natural rights tradition, though it claims otherwise. My concern here is with the 107

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grounding specifically of natural or human rights, between which I make no distinction for the purpose of my discussion here. A second distinction is between descriptive and prescriptive rights which parallels the distinction between descriptive and prescriptive natural law. 2 The distinction between them is illustrated as follows: A lion on the African Savannah has the right to self-preservation which entails the right to kill and eat game. Now if a hungry lion encounters a human being, it has the right to kill and eat that human; but, the human being is not duty bound to honor that right. Animals have the right or power to act on their instincts, but we are not obligated to honor them. These are rights in the descriptive sense without any normative connotation. By contrast, rights in the prescriptive sense are normative and entail a correlative obligation of others to honor them. So I too have the right to self-preservation and thus to act to ensure it. However, this carries normative weight insofar as others are morally bound to honor and not interfere with it; any violation of that right of mine is sanctioned by law. Thus, Hobbes understands natural rights exclusively in its descriptive sense, whereas Locke—along with such eighteenth-century figures as Richard Price, Joseph Priestly, Thomas Paine, and Mary Wollstonecraft, as well as the great charters of rights written in that age—understands them in their prescriptive sense. It is noteworthy that the eighteenth century saw a shift from talk of natural laws to talk of natural rights, and of natural rights in a new sense. In its old sense, as understood by medieval philosophers and theologians like Aquinas, “natural right” means what is “naturally right,” or what is right for us to do, what we ought to do, and so is authorized by natural law. As such they are objective rights. What is naturally right is determined and limited by duties; such a right is the power to do one’s duty, as stipulated by natural law, without interference or impediment. And the purpose or end of performing these duties, together with the attendant right to perform them, is the moral perfection of human beings. This purpose justifies and makes intelligible those duties and their attendant rights. In its new sense, on the other hand, as understood by the philosophers and philosophes of the European Enlightenment, “natural right” means a power humans claim as their own with respect to what they may do and wish to do, a claim that it is incumbent upon others to recognize and respect on pain of legal sanctions for not doing so. As such they are subjective rights. 3 This is the meaning of natural rights as found in the American Bill of Rights and other such charters. Natural rights as conceived in the eighteenth century and onward have the following characteristics: (a) their derivation from nature, not from human legislation; (b) their inviolability, meaning that no political authority may deny them; (c) their inherence, meaning that human beings have them by virtue of being human, and their possession is prior to and independent of the existence of any government or legal system; (d) their immutability, timelessness, and univer-

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sality, though contingent rights may be derived from them in order to meet historical exigencies; (e) their self-evident truth which is discoverable through the exercise of human reason. 4 Some have interpreted the shift from a focus on natural law to that on natural rights as indicating the progressive secularization of rights since the eighteenth century. Thus, John M. Headley has characterized this shift as “the shedding of natural law’s specifically religious framework”; 5 and Thomas Pogge has likewise claimed, “the shift from natural-law to naturalrights language constitutes a secularization which facilitates the presentation of a select set of moral demands as broadly sharable in a world that has become much larger and more heterogeneous.” 6 The secularization of theories of rights has the advantage of a more universal appeal by eliminating parochial religious presuppositions. Another shift occurring in eighteenth-century theories of natural law and natural rights is from a teleological to a non-teleological conception of them. The classical doctrine of natural law, as derived from Aristotle and Aquinas, gives a teleological justification for our obligations and rights in terms of the worthwhile ends they promote, which Veatch characterizes this way: When in the context of classical natural law theory, one asks why it is held to be right for someone to act or proceed in a certain way, or why he is obliged to conduct himself in that way, the answer is always to be given in terms of the end to be achieved thereby. That is to say, given a natural or proper end of human life, then it may be determined both in nature and by reason, what it is that one needs to do or that one ought to do or that it is right for one to do in order to attain that end. But what is this, if not to say that natural rights and natural duties—and hence natural laws as well—are always susceptible of a proper justification? Or in other words, there is always a reason for holding such obligations to be naturally binding upon us: they are so in virtue of the natural end or goal toward which human beings are oriented by their very nature. 7

But in the eighteenth century, natural rights and duties are divested of their teleological justification in the spirit of the newly emerging physical sciences which had abandoned talk of final causes. THE GROUNDING OF RIGHTS Grounding in Natural Law Natural law in any of its formulations traditionally provided the philosophical rationale for the existence and honoring of rights (natural, human, and civil): If the end of human existence is the attainment of certain goods, then one has the duty and right to pursue them unimpeded. And this is why some

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today like John Finnis insist that natural law yet can provide a philosophical foundation for natural rights. 8 Moreover, Leszek Kolakowski claims that the modern conception of human rights is essentially religious: “the notion of the immutable rights of individuals goes back to the Christian belief in the autonomous status and irreplaceable value of the human personality.” 9 Indeed, according to Michael J. Perry, the modern conception of human rights necessitates a belief in the sacredness of human beings based on religion: There is no intelligible (much less persuasive) secular version of the conviction that every human being is sacred; the only intelligible versions are religious. (To say that the only intelligible versions of the conviction are religious is not to say that any religious version is persuasive or even plausible.) The conviction that every human being is sacred is, in my view, inescapably religious—and the idea of human rights is, therefore, ineliminably religious. 10

However, bereft of any natural end like human perfection which they ought to promote, or a religious sanction, natural rights seem to have no rational foundation or ontological status. Stripped of their justifying telos or derivation from religion, rights have no other justification than that we ourselves demand them. Might there be alternative justifications for rights that put them on a firmer philosophical footing? Fundamentally these justifications boil down two kinds: One kind derives it from the common humanity of individual persons; the other from the social relations and interactions of people in communities. Grounding in Common Humanity This justification for rights appeals to our common humanity—the mere fact that we are human justifies our having rights. Many hold to this justification, as attested by Peter Jones who states, “In moral and political philosophy, human rights have generally been conceived as rights possessed by human beings as such and as rights that must therefore be respected in all the various contexts and circumstances in which human beings find themselves.” 11 Thus, H. L. A. Hart affirms that humans have rights “by virtue of their humanity and not by virtue of human fiat or law or convention.” 12 For Allen Buchanan, “Human Rights, as the name implies, are ascribed to all human beings simply by virtue of their humanity or personhood, regardless of whatever other characteristics differentiate them from one another, and regardless of where they live.” 13 And according to Gewirth, “We may assume, as true by definition, that Human Rights are rights that all persons have simply insofar as they are human” 14; consequently, they are independent of any institutional mandates whether legal or nonlegal.

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Nevertheless, as high minded and compelling as this justification sounds, it begs the question as to what it is, exactly, about our humanity that renders us worthy of rights. An answer may be derived from Kant’s ethics, particularly his conception of the moral law, which is nothing other than the natural law. Kant’s practical imperative, if you remember, is that all humans, as beings having innate dignity, be accorded respect: “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.” Now human dignity consists in possessing the twin faculties of reason and free will, and it is this that confers on human beings moral standing and thus eligibility for rights. Kant lays it down as an imperfect duty that human beings ought to exercise and develop their faculties: A human being, “as a rational being” who acts from the categorical imperative, “he necessarily wills that all his faculties should be developed, inasmuch as they are given to him for all sorts of possible purposes.” Humans, then, are duty-bound to exercise their faculties of reason and free will, which means they have the right to exercise them in such forms as freedom of speech and freedom of religion. To deprive them of the right to exercise these faculties and their associated rights is to derogate from their dignity and their humanity. However, it might be objected that this too begs the question: To wit, what is it about reason and free will that make their possessors eligible for rights? Jeremy Bentham thinks that together they are too narrow a criterion for conferring moral standing along with rights on beings. He replaces them with the moral criterion of sentience, which is the capacity of an organism to feel pleasure and pain. 15 Thus, if any being is capable of suffering it is in its interest not to suffer, and so it has the right not to, all other things being equal. This has become an argument for granting moral standing and its attendant rights to nonhuman animals. Yet again, one can ask: But what is it about sentience that makes its possessor eligible for rights? In locating the foundation of our rights in our common humanity, more specifically Kant’s dignity as compounded of reason and free will or even Bentham’s sentience, we seem to have reached an impasse. We have no recourse but to rely on our moral intuition that this is the case. The appeal to intuition is at some points unavoidable in moral reasoning as Aquinas and Ross have pointed out. Moreover, Mill contends that some things, like the ultimate foundation of rights and ultimate ends, are not susceptible to proof in the sense of geometric proof in mathematics or experimental proof in science: Questions of ultimate ends are not amenable to direct proof. Whatever can be proved to be good must be so by being shown to be a means to something admitted to be good without proof. The medical art is proved to be good by its

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Chapter Nine conducing to health; but how is it possible to prove that health is good? The art of music is good, for the reason, among others, that it produces pleasure; but what proof is it possible to give that pleasure is good?

However, this does not mean that we must ultimately rely on arbitrary choices or uninformed intuitions. The adducing of reasons for a position constitutes a kind of proof of it by showing that it is reasonable: We are not, however, to infer that its acceptance or rejection must depend on blind impulse or arbitrary choice. There is a larger meaning of the word “proof,” in which this question is as amenable to it as any other of the disputed questions of philosophy. The subject is within the cognizance of the rational faculty; and neither does that faculty deal with it solely in the way of intuition. Considerations may be presented capable of determining the intellect either to give or withhold its assent to the doctrine; and this is equivalent to proof. 16

Thus cogent reasons may be given for justifying rights by an appeal to our common humanity or innate dignity. Barring this, we can simply say that we intuit the truth of this justification. Grounding in the Human Community An alternative justification of rights is that they are immanent in and emergent from the matrix of our actual social relations and practices. Rights are to be derived not from abstract principles but from the practice of social living. This justification comes in a variety of forms. An advocate of this view of the origin of rights is Alexis de Tocqueville. Rights and their correlative duties are derived not from natural law or nature but from civility, what he terms “mildness of manners,” resulting from “equality of conditions,” a democratic principle. To see others like ourselves (alike or equal in nature) conduces to our empathy or sympathy with them (what the moral sense theorists of the eighteenth century called “fellow feeling”), thereby disinclining us to treat them as less than human: When ranks are nearly equal among a people, since all men have more or less the same way of thinking and feeling, each one of them can judge in a moment the sensations of all the others; he glances quickly at himself; that is sufficient. So there is no misery that he cannot easily imagine and whose extent is not revealed to him by a secret instinct. Whether it concerns strangers or enemies, imagination immediately puts him in their place. It mingles something personal in his pity, and makes him suffer as the body of his fellow man is torn apart.

The way it works, presumably, is this: I recognize that others are like myself through the bond of empathy, and since I enjoy certain rights or powers I confer the same on them. Tocqueville applies this principle of equality

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among individuals to peoples or nations: “On the contrary, as peoples become more similar to each other, they show themselves reciprocally more compassionate toward their misfortunes, and the law of nations becomes milder.” 17 The practice of civility ought to begin with one’s own nation as an example to others to which, Tocqueville hopes, it will gradually spread, resulting in the emergence of a universal moral community. Other advocates of the communitarian justification of rights are the British Idealists who flourished in the latter half of the nineteenth century and the beginning of the twentieth. Though critical of the traditional doctrine of natural rights, they nevertheless used its terminology and reconstituted it. They disassociate natural rights from the state of nature or any other such abstract conception, but realize that those rights necessary and fundamental for a flourishing society and the achievement of the commonweal might, because they are so fundamental and necessary, be considered “natural.” The British Idealists generally (1) deny the existence of a natural law existing above and beyond society as the source of rights and to which conformity is owed; (2) insist that rights are constituted by their being recognized or acknowledged by others—by society and government; (3) justify rights insofar as they advance the common good and so express the real interests of individuals. They, like the Stoics and some of the later Scholastics of the sixteenth century, held to a cosmopolitan ideal of an international moral community transcending national boundaries and inclusive of all peoples from whence rights emerge. Now a moral community, as distinct from a political or national one, is made up of all peoples who subscribe to a common core of moral principles or values as expressed, for example, in the law of nations. In the spirit of Tocqueville, they have faith in the possibility of a universal moral community, beginning with particular moral communities or civilized nations (where rights are honored) and expanding therefrom; and it is the responsibility of those nations, which having already achieved a minimal level of civilization (informed by moral principles), to assist others in doing so. The moral community not only engenders and sustains the rights of its members but is the means to realizing the good life and civilized ideals. The purpose of the state is to promote the freedom of its citizens and enable them to realize the best in themselves; this entails honoring their rights. 18 A representative British Idealist is Thomas Hill Green, whose Lectures on the Principles of Political Obligation is “perhaps the finest book in the philosophy of rights written to date.” 19 For him, rights exist independently of a political community, but not nonpolitical communities like families, clubs, or neighborhoods—rights grow from a social milieu. The characteristics of a right, according to Green, are: (a) a power of individuals; (b) its acknowledgment by society or other persons; (c) its promotion of the commonweal. The sole justification for an individual’s entitlement to rights is that they are the

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sine qua non for fulfilling “man’s vocation as a moral being.” 20 In Green’s social conception of them, rights entail correlative obligations. Green’s objection to rights being possessed in a state of nature, Hobbes’ and Locke’s position, is that according to that conception rights are independent of political communities which exist solely to protect them. Grounding rights in a state of nature might even lead to a contempt of the state given that the individual can claim rights against it from nature. For Green, rights are grounded teleologically in some worthwhile end which is one’s moral vocation to achieve through their exercise. Green’s teleological conception of rights as enabling us to fulfill our vocation as moral beings is a throwback to Aquinas’ conception of rights as powers to do what we must to achieve that moral perfection ordained by natural law. For Green, it is the capacity to conceive of the common good and to act on its behalf that constitutes a person’s moral character. The rights that go into its making are not innate, as some natural law theorists suppose; nor are they natural in the sense that they are possessed in a state of nature; neither are they created by law or custom. Yet, they are “natural” in the sense that “they arise out of, and are necessary for the fulfillment of, a moral capacity without which a man would not be a man.” 21 Above all, the validity of a right depends upon its recognition by the community and its promotion of the commonweal. Modern theories of human rights based on communitarian recognition are related to the communitarian theory of rights advocated by the British Idealists. 22 Thus R. G. Collingwood emphasizes the principle of recognition as foundational to human rights, particularly the freedom of choice. For Collingwood, this principle respects all persons equally without ignoring their difference resulting from their capacity to choose while acknowledging that choices are unequal in value. 23 The most recent exponent of the communitarian justification of rights is Richard Rorty. Like the cosmopolitan British Idealists he asserts that rights depend on a universal moral community and one’s sense of belonging to it. For Rorty, it is through human solidarity, a sense of being one with others achieved through empathy (reminiscent of Tocqueville), beginning with one’s local community and progressively extending to the larger community of humankind, that rights are engendered. According to him, this emotive and empathetic bond of human solidarity puts human rights on a sounder footing than any abstract rational principle like natural law—“Moral sentiment in this is more important than moral rationality or principle.” 24 The various modern forms of the communitarian justification for rights, currently referred to alternatively as the constitutive or conventional justification or theory of rights, like the earlier forms, ground rights in the communities in which they are recognized and sanctioned. These later communitarian justifications share the following assumptions with that of the British Idealists: (a) rights depend upon a universal moral community, wider than

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that of any particular state, and without which they would not exist; (b) rights belong to us independently of government (which may enforce them), but not of society which grants them; (c) rights are contingent upon and conditioned by history, but are not in any sense natural or existent outside their historical context. There are rights which are so fundamental that without them civil society would be impossible. These modern forms of the communitarian justification for rights suggest a universal moral consensus as to what is permissible and not. 25 THE INSTITUTIONALIZING OF RIGHTS Rights have been inscribed in forms of international agreements as treaties, conventions, and covenants. The source of these rights are custom and fundamental moral norms comprising the law of nations: “Custom, closely intertwined with considerations of morality, has always played a leading role in international humanitarian law.” 26 Socially embedded rights or claims constituted by custom which are considered fundamental to civil society precede their codification in law. 27 International law predicated on custom, resulting from the actual behavior of nations in their relations, has been largely responsible for the recent advancement of human rights. 28 Practical support for human rights has come from such documents as the United Nations Charter (1945), though it was not a treaty and so not legally binding on nations; the Convention on the Prevention and Punishment of Genocide (1951), which is a treaty; the Universal Declaration of Human Rights (1948); the International Covenant on Civil and Political Rights (1976); the International Covenant on Economic, Social, and Cultural Rights (1976). One significant document supporting human rights is the London Agreement & Charter (1945) establishing the Nuremberg Trials and influencing the founding of subsequent international criminal courts and the United Nations Charter of Human Rights. On Richard J. Goldstone’s view, the Nuremberg Trials presupposed and affirmed the existence of a universal moral community transcending any narrow political one over which it has authority and guaranteeing the rights of all its members: Prior to World War II, the subjects of international law were not individuals but nations. Individual human beings had no standing. But the Holocaust changed that. It was a change first manifested in the London Agreement of 8 August 1945, which established the military tribunal at Nuremberg and recognized a new offense: the “crime against humanity.” It was the first time in legal history that certain crimes were identified as being of such a magnitude that they injured not only the immediate victims and not only the people in the country or on the continent where they were committed but also all of humankind. It was the first formal recognition of a universal jurisdiction over certain heinous crimes. People who committed crimes against humanity could be

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Significantly, that citizens who did not break the domestic laws of their countries could be tried for war crimes outside the jurisdiction of their own countries put a dent in the idea of national sovereignty inasmuch as it obviates any legal claim that the defendants’ country has over them. This implies that national sovereignty is not an irrefragable right inasmuch as a breach has already been made, that is, the right of an international criminal court overrides the right of a nation to intervene on the part of its citizens on trial there. All these documents in support of human rights, according to Richard Harries, reflect a growing moral consensus of an emergent universal moral community of the sort envisioned by the British Idealists: “From the United Nations Charter in 1945 to the latest instrument of the ILO [International Labour Organization] people of the most diverse backgrounds have agreed on a long series of laws and rights. This agreement and the discussion that produced it presupposes capacity for moral, and not just legal, discourse that belongs to human beings as such: that is natural.” 30 Moreover, Boucher reports there is the view that this moral consensus itself is a sufficiently objective foundation for human rights—one does not have to look beyond this communitarian justification: Mervin Frost suggests that there is an international consensus on human rights. He calls them settled norms, and their existence can be identified by the fact that states, when they violate them, feel the need to justify their actions, and this in itself is a moderating and constraining force, and alternatively if they violate human rights they find it necessary to do so clandestinely. Thus in their systematic violation these international norms still have a bearing on the behaviour of states. Given that there is an almost universal consensus that human beings have human rights, even if there is no consensus upon what these rights are, no states want to be publicly condemned as a violator. 31

However, a caveat is in order here. A moral consensus is an expression of people’s will. Thus, if the existence of rights depends on a moral consensus, then it depends on the public’s willing them. This is a form of voluntarism: instead of rights being justified by divine fiat, they are now so by human fiat. Rights exist and are valid for no other reason than that people command them. A human command is substituted for a divine command, and is open to similar objections. It makes the possession of rights inherently unstable. If rights exist only by human fiat, then future fiats could countermand them and dispossess those who once enjoyed them.

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Limitations of Institutional Advancements of Rights Whatever philosophical foundation may be given to rights, and however they are enshrined in international law, the fact is that they remain merely airy abstractions unless there are governments or other authorities with the will to enforce them. 32 Again, as Portia remarks in Merchant of Venice, “If to do were as easy as to know what were good to do, chapels had been churches, and poor men’s cottages princes’ palaces. It is a good divine that follows his own instructions: I can easier teach twenty what were good to be done, than be one of the twenty to follow mine own teaching.” Regrettably, international law of itself is powerless to guarantee rights. Nations continue to violate them with impunity despite the proliferation of international covenants, charters, and agreements like the Geneva and the Hague Conventions. These international agreements establishing rights in law are voluntary and so safeguard the principle of national sovereignty “which stipulates that juridically independent territorial entities have the right to free choice.” 33 Unfortunately, though, they are unenforceable. Moreover, the signatories to these agreements are typically not motivated by moral concerns but enter into them cynically as pro forma undertakings. Rights need to be politically enforceable, yet even this is not sufficient to guarantee them. Thus Hannah Arendt cites the plight of stateless refugees who, existing outside the jurisdiction of any state, lack the rights that might be guaranteed by it: “The Rights of Man were proclaimed as inalienable because they did not depend on governments while at the same time as soon as human beings lacked a government and needed to invoke their minimum human rights, there was no institution to uphold or enforce them. . . . If the Rights of Man have a concrete existence they would belong to every one unconditionally by the mere fact of being human. 34 To remedy this, Arendt proposes “a right to have rights,” meaning that states ought to be prohibited from denying rights to their citizens. But what transnational agency could enforce this prohibition against a state’s denial of its citizens their rights? The only candidate for this job is the United Nations, but so far they have lacked the military prerogative and force to do so. CRITIQUE OF RIGHTS Jeremy Bentham, for one, claims that rights have no more foundation than the government that sanctions them. “Natural rights,” so-called, are invoked in opposition to unpopular laws, and such invocations threaten to subvert the civil order: There be scarce any law whatever but what those who have not liked it have found, on some account or another, to be repugnant to some text of scripture; I

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Rights without the sanction of law and a political authority to enforce them are baseless and are, as Bentham famously says, nonsensical: “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,— nonsense upon stilts.” 36 Some like Alistair MacIntyre reject the very idea of natural rights because many cultures, including Western culture until the late fifteenth and sixteenth centuries, lack that idea, and because no convincing justification for them has been forthcoming. 37 However, MacIntyre’s suggestion that because all attempts to establish rights have failed they consequently lack foundation and so are nonexistent, is to commit the fallacy of argument ad ignorantiam (the appeal to ignorance). The failure to find evidence that something exists does not entail that it does not—“Absence of evidence is not evidence of absence.” An example of this comes from astronomy. Percival Lowell as early as 1915 proposed the existence of a yet to be discovered ninth planet, Pluto, though with scant justification. He speculated that the wavering of Uranus and Neptune in their orbits was caused by the gravitational pull of an unknown planet. It was not until 1930 that this planet was actually sighted, thereby fully justifying its existence. That a decisive justification for rights has yet to be found does not mean that there is none. Moreover, that the idea of rights does not exist universally in all cultures and emerged only relatively recently in the West does not mean that the idea is without merit. There are many scientific ideas like Copernican cosmology or Darwinian evolution that did not exist in all cultures and that emerged only relatively recently in Western culture, but no one would reject them for those reasons. Short of denying their existence, others have complained that rights are a uniquely Western preoccupation not shared by non-Western cultures, and that the West’s seeking to impose through international law the recognition of rights on the rest of the world is nothing less than a form of cultural imperialism. This is a reminder that “In order ultimately to prevail, the human rights movement must be moored in the cultures of all peoples.” 38 There is hope that they might be moored in a consensus as to a common core of moral principles found in every moral code of whatever culture, the law of nations. However, the failure so far to find a philosophical foundation for rights may not be regrettable after all. Michael Ignatieff maintains that even without it they may still be promulgated by international institutions: It is, he says, better “to forego these kinds of foundational arguments altogether and seek to build support for human rights on the basis of what such rights

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actually do for human beings.” 39 Note that Ignatieff’s recommendation is implicitly a pragmatic justification for rights inasmuch as their validity is derived not from their supposed origins but from the beneficial consequences that accrue from honoring them. SUMMATION Rights, then, may be grounded in three main ways, viz., in natural law, in our common humanity, and in the larger community. 40 None, though, is decisive. But together they gain credibility. I shall here evoke the cumulative case for God’s existence, also known as the “leaky bucket” argument. According to it, none of the traditional proofs for God’s existence is flawless; they resemble buckets with holes in them. However, each of these proofs in combination gain in logical force and so strengthen the case for God’s existence, just as putting the leaky buckets inside one another other in a certain way will cover their holes and make them fit to carry water. 41 By the same token, these several groundings of rights when combined gain in cogency which they lacked when taken individually. And even if this argument does not succeed, we can appeal again to Mill: Even if something like rights is not amenable to apodictic proof, if good reasons nevertheless can be given for it, then it is reasonable to believe in it. Therefore, taking these grounds for rights together it is reasonable to suppose that belief in them is justified and to act as if they were. Acting as if rights had an objective basis would perhaps make for a more humane world. Hans Vaihinger, in his The Philosophy of “As If” (Die Philosophie des Als Ob), proposes that since we live in an irrational world where appearance does not match reality, then it is reasonable to hold certain beliefs as if they were true, to adduce fictional explanations for things, so as to make life more bearable and increase the prospects of our survival. Thus, physicists must investigate the material world as if it existed independently of our perception of it, though all we can know of it is from our perceptions; we must behave as if we had free will, even if we do not and moral certainty is impossible. Minimally, these multiple attempts to ground rights philosophically indicate that many have taken rights seriously enough to seek a rational foundation for them. It shows that those attempting to ground them have faith in their existence and validity, which may be justification enough. And even if rights lack a demonstrable foundation, that they benefit us is sufficient justification for our honoring them. According to Amy Gutmann, “Human rights are important instruments for protecting human beings against cruelty, oppression, and degradation. That’s all we need to believe to defend human rights.” 42 More generally, that ethical theory cannot be logically grounded, this, according to Boucher, does not obviate reasoning about ethics: “While

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the foundations of ethical reasoning may not be of the type for which philosophy once hoped, in other words there may be plenty of reasons to be skeptical about the foundations of ethics, this does not provide conclusive argument for desisting from talking about ethics altogether. Reasoning about ethics can take place on the basis of identifying shared premises.” 43 NOTES 1. See Hersch Lauterpacht, An International Bill of the Rights of Man (Oxford: University Press, 1945). 2. A further distinction, concerning prescriptive rights, is that between positive and negative rights. A positive right has to do with what we are entitled to do such as the right of free speech. A negative right has to do with what others may not do to us such as infringing our right to privacy. 3. A subjective right (jus) is associated with power. According to Michael Villey, it was William of Ockham who first makes this association and first formulates the idea of subjective rights. According to him, rights are vouchsafed to individuals by God, and he was concerned that they were not infringed by ecclesiastical or secular authorities. Ockham insisted that no person could be deprived of a God-given right without a reasonable cause. 4. David Boucher, The Limits of Ethics in International Relations: Natural Law, Natural Rights, and Human Rights in Transition (Oxford: Oxford University Press, 2009), 150–51. 5. John M. Headley, The Europeanization of the World: On the Origins of Human Rights and Democracy (Princeton, NJ: Princeton University Press, 2008), 103. 6. Thomas W. Pogge, World Poverty and Human Rights (Cambridge, UK: Polity Press, 2002), 55. 7. Henry Veatch, “Natural Law: Dead or Alive?,” Literature of Liberty: A Review of Contemporary Liberal Thought 1, no. 4 (October–December 1978): 14. 8. See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 198–230. 9. Leszek Kolakowski, Modernity on Endless Trial (Chicago: University of Chicago Press, 1990), 214. 10. Michael J. Perry, The Idea of Human Rights: Four Inquiries (Oxford: Oxford University Press, 1998), 11–12. 11. Peter Jones, “International Human Rights: Philosophical or Political,” in National Rights, International Obligations, Simon Caney et al., ed. (Boulder, Colorado: Westview Press, 1996), 189. 12. H. L. A. Hart, “Human Rights,” in The New Fontana Dictionary of Modern Thought, ed. Alan Bullock and Stephen Trombley (Hammersmith, London: HarperCollins Publishers, 1977), 405. 13. Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law, Oxford Political Theory (Oxford: Oxford University Press, 2004), 121–22. 14. Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago: University of Chicago Press, 1982), 41. 15. This is related to Bentham’s meta-ethical definitions of “good” and “evil” as pleasure and pain, respectively. 16. John Stuart Mill, Utilitarianism, in Essays on Ethics, Religion and Society, ed. J. M. Robson (Toronto: University of Toronto Press, 1969), 207–08. 17. Alexis de Tocqueville, Democracy in America, Historical-Critical Edition of De la démocratie en Amérique, ed. Eduardo Nolla, trans. James T. Schleifer (Indianapolis, IN: Liberty Fund, Inc., 2010), 4: 993, 994. 18. Boucher, Limits of Ethics in International Relations, 242-44.

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19. Martin Rex, “Green on Natural Rights in Hobbes, Spinoza and Locke,” in The Philosophy of T. H. Green, ed. Andrew Vincent (Aldershot: Gower Publishing Company Limited, 1986), 104. 20. Thomas Hill Green, Lectures on the Principles of Political Obligation (Kitchener, ON: Batoche Books, 1999), 17. 21. Ibid., 21. 22. Boucher, Limits of Ethics in International Relations, 298–99. 23. Ibid., 268. 24. Matthew Festenstein and Simon Thompson, eds., Richard Rorty: Critical Dialogues (Cambridge, UK: Polity Press, 2001), 168. 25. Boucher, Limits of Ethics in International Relations, 298, 310. 26. Christian Tomuschat, Human Rights: Between Idealism and Realism, 2nd ed. (Oxford: Oxford University Press, 2008), 262. 27. Boucher, Limits of Ethics in International Relations, 315. 28. Ibid., 319. 29. Richard J. Goldstone, For Humanity: Reflections of a War Crimes Investigator (New Haven: Yale University Press, 2000), 75. 30. Richard Harries, “Human Rights in Theological Perspective,” in Human Rights for the 1990s: Legal, Political and Ethical Issues, ed. Robert Blackburn and John Taylor (London: Mansell Publishing Limited, 1991), 6. 31. Boucher, Limits of Ethics in International Relations, 254. 32. This of course assumes that individuals are powerless to lay claim to or to defend their rights. The need for a political power to enforce the rights of individuals is affirmed by Locke and Hobbes. 33. Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princeton University Press, 1999), 121. 34. Boucher, Limits of Ethics in International Relations, 264. 35. Jeremy Bentham, A Fragment on Government, ed. F. C. Montague (Oxford: The Clarendon Press, 1891), 214. 36. Jeremy Bentham, Anarchical Fallacies; being an examination of the Declaration of Rights issued during the French Revolution, in Nonsense upon Stilts: Bentham, Burke and Marx on the Rights of Man, ed. Jeremy Waldron (London: Methuen & Co. Ltd., 1987), 53. 37. Boucher, Limits of Ethics in International Relations, 373. 38. Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia: University of Pennsylvania Press, 2002), 14. 39. Michael Ignatieff, Human Rights as Politics and Idolatry, ed. Amy Gutmann (Princeton: Princeton University Press, 2001), 54. 40. When rights are correlated with duties they can be grounded in them. That is, if we have a duty to do something, then we have the right so to do. 41. See Basil Mitchell, The Justification of Religious Belief (London: Palgrave Macmillan, 1973), chapter 3. 42. Amy Gutmann, “Introduction,” in Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001), xi. 43. Boucher, Limits of Ethics in International Relations, 291.

Chapter Ten

A Brief History of Just War Theory

ANCIENT AND MEDIEVAL PERIODS Virtually all civilizations, ancient and modern, have addressed the issues of when a nation ought to go to war and how war ought to be fought in their foundational, sacred texts such as the Bible, the Bhagavad Gita, the Tao-teching, and the Qur’an. Just war theory as it stands today is a synthesis of Graeco-Roman and Christian values, a synthesis found paradigmatically in Augustine’s just war doctrine. 1 Aristotle Aristotle has been credited with introducing the concept of just war, which stands to reason given that he gives justice a pre-eminent place among the cardinal virtues. Aristotle addresses the issue of what later would become known as jus ad bellum, a key component of just war theory, which specifies the conditions under which war should be declared. A war is just, according to Aristotle, if it is fought either to prevent the citizens of a state becoming enslaved to a foreign power, or to impose the rule of law on an otherwise unruly and lawless people who are deserving of slavery: “exercise for war is not to be practiced in order to enslave those who do not deserve it but so that, first, they themselves do not become slaves to others, next so that they seek leadership for the aid of the ruled and not for despotism over everybody, and third for mastery over those who deserve to be slaves.” Note here that Aristotle provides a justification for accredited states to intervene in the internal affairs of dysfunctional states in order to stabilize them. He justifies imperial wars of conquest if the resultant empire benefited the vanquished as well as the victors, and if this empire would not become so formidable and wealthy as to invite attacks upon it and so lead to further wars. But under no circum123

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stances should states engage in war for its own sake or for lording it over their neighbors: “Yet further, a single city, one governed nobly of course, could be happy all by itself—if indeed it is possible for a city using serious laws to be managed on its own somewhere—and the arrangement of its regime would not be for war nor for dominating over enemies (for let there be no such enemy present).” 2 For Aristotle “war is for the sake of peace.” It is not an end in itself but a means to securing the blessings of peace the chief of which is a flourishing state: “Clearly, then, while all the care taken about war must be considered something noble, it cannot be considered the highest of all ends but rather as for the sake of that end. The serious legislator’s part is to see how a city or family of human beings or any other community can partake in good life and in the happiness that is possible for them.” 3 And these collective goals are achievable only if the political authorities inculcate virtue in its citizenry— the good life is a virtuous life lived according to the dictates of reason. This certainly has implications for jus post bellum, that part of just war theory which is concerned with the re-establishment of peace after war and the reconstruction of defeated aggressor nations. Cicero Cicero stipulates that the enterprise of war be just. Through Marcus, an interlocutor in On the Laws, a dialogue in emulation of Plato’s Republic, Cicero says, “we have ordained that in undertaking, waging, and ending wars both justice and good faith should be as strong as possible, and that there should be official interpreters of them.” Cicero allows for defensive imperial wars including those to preserve Rome’s honor and glory, but, unlike Aristotle, rejects wars for acquiring slaves. He introduces the stipulations that wars be publically declared, and that they be fought defensively or for the restoration of property of which a state has been unlawfully deprived by the encroachment of a foreign power: “Those wars are unjust which are undertaken without cause. For aside from vengeance or for the sake of fighting off enemies no just war can be waged. . . . No war is considered just unless it is announced and declared and unless it involves recovery of property.” 4 That wars, to qualify as just, should be in self-defense and publicly declared would become key precepts of jus ad bellum, the justification of war. Sts. Ambrose and Augustine Ambrose and Augustine are Church Fathers who address the issue of justice in war. Ambrose requires that warriors exemplify in battle the cardinal virtues of courage, prudence, and justice:

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How great a thing justice is can be gathered from the fact that there is no place, nor person, nor time, with which it has nothing to do. It must even be preserved in all dealings with enemies. . . . Now let us discuss fortitude, which (being a loftier virtue than the rest) is divided into two parts, as it concerns matters of war and matters at home. . . . Fortitude, therefore, is a loftier virtue than the rest, but it is also one that never stands alone. For it never depends on itself alone. Moreover, fortitude without justice is the source of wickedness. For the stronger it is, the more ready is it to crush the weaker, whilst in matters of war one ought to see whether the war is just or unjust. 5

In thus specifying what counts as proper conduct in war, Ambrose contributes to what would become jus in bello, that component of just war theory concerned with how war ought to be waged. Ambrose also requires, with respect to jus ad bellum, that wars be declared by a proper authority and their declaration made public, adding that they should be undertaken only as a last resort. Regrettably, though, he gives tacit approval of holy war (bellum sanctum) by allowing that any war undertaken in conformity to God’s will was thereby a just war. Augustine is credited with being the founder of the Christian version of just war doctrine, and though Ambrose may be as deserving of that title, it is Augustine who inspired others’ ideas of a just war. He insists that a nation should never prosecute a war for its own sake, or for the sake of revenge, or for the exercise of power, but solely for the sake of exacting retributive justice on another nation for its wrongdoing: The real evils in war are love of violence, revengeful cruelty, fierce and implacable enmity, wild resistance, and the lust of power, and such like; and it is generally to punish these things, when force is required to inflict the punishment, that, in obedience to God or some lawful authority, good men undertake wars, when they find themselves in such a position as regards the conduct of human affairs, that right conduct requires them to act, or to make others act in this way. 6

However, the necessity of visiting such retribution should always be regretted by wise men, who are emboldened to do so by their sense of justice: But the wise man, they say, will wage just wars. Surely, if he remembers that he is a human being, he will rather lament the fact that he is faced with the necessity of waging just wars; for if they were not just, he would not have to engage in them, and consequently there would be no wars for a wise man. For it is the injustice of the opposing side that lays on the wise man the duty of waging wars; and this injustice is assuredly to be deplored by a human being, since it is the injustice of human beings, even though no necessity for war should arise from it. 7

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And the wise men who have the sole authority to declare war are those of a nation’s political leaders vested with that authority: “A great deal depends on the causes for which men undertake wars, and on the authority they have for doing so; for the natural order which seeks the peace of mankind, ordains that the monarch should have the power of undertaking war if he thinks it advisable, and that the soldiers should perform their military duties in behalf of the peace and safety of the community.” 8 Moreover, in the conduct of war the enemy should be treated humanely: Therefore, even in waging war, cherish the spirit of a peacemaker, that, by conquering those whom you attack, you may lead them back to the advantages of peace. . . . Let necessity, therefore, and not your will, slay the enemy who fights against you. As violence is used towards him who rebels and resists, so mercy is due to the vanquished or the captive, especially in the case in which future troubling of the peace is not to be feared. 9

Like Aristotle, Augustine identifies peace as the proper end of war: Even wars, then, are waged with peace as their object, even when they are waged by those who are concerned to exercise their warlike prowess, either in command or in the actual fighting. Hence it is an established fact that peace is the desired end of war. For every man is in quest of peace, even in waging war, whereas no one is in quest of war when making peace. In fact, even when men wish a present state of peace to be disturbed they do so not because they hate peace, but because they desire the present peace to be exchanged for one that suits their wishes. 10

Augustine, in concert with some of his predecessors, thus enunciates the key elements of what has come down to us as classical just war theory: (a) That the only legitimate motive for war is the demand for retributive justice is the principle that war have the right intention; (b) That only “the monarch should have the power of undertaking war” is the principle that only a competent (political) authority has the right to declare war. These constitute jus ad bellum, the moral and legal right to make war or the justice of its cause; (c) That the enemy deserves humane treatment belongs to jus in bello, which is concerned with what is morally and legally right in the conduct of war; (d) And “that, by conquering those whom you attack, you may lead them back to the advantages of peace” constitutes a part of jus post bellum, which deals with the moral and legal ways of pacifying an enemy country after its defeat. St. Thomas Aquinas Aquinas’ theory of just war iterates Augustine’s doctrine. He too stipulates that for a war to be just it must be declared by a competent authority; be for a

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just cause, i.e., retributive justice; and be prosecuted by authorities having the right intention, i.e., the promotion of the good: In order for a war to be just, three things are necessary. First, the authority of the ruler by whose command the war is to be waged. . . . But since the care of the common weal is committed to those who are in authority, it is their business to watch over the common weal of the city, kingdom, or province subject to them. Secondly, a just cause is required, namely, that those who are attacked, should be attacked because they deserve it on account of some fault. Thirdly, it is necessary that the belligerents should have a rightful intention, so that they intend the advancement of good or the avoidance of evil. 11

Moreover, Aquinas qualifies the jus in bello he adopts from Augustine with the principles of so-called “double-effect” and of proportionality. According to the principle of double-effect, an act takes its moral quality from its intended effect, not from its unintended one: “Nothing hinders one act from having two effects, only one of which is intended, while the other is beside the intention. Now, moral acts take their species according to what is intended and not according to what is beside the intention, since this is accidental.” 12 Thus in combat, soldiers in aiming at a military target may inadvertently kill innocent civilians, what the army refers to euphemistically as “collateral damage.” Such an act, though regrettable, is not illicit, even though innocents were killed, because they were not intentionally targeted. And according to the principle of proportionality, the force exerted by combatants must be no more than is necessary or sufficient to secure the object of their mission: “And yet, though proceeding from a good intention, an act may be rendered unlawful if it be out of proportion to the end. Wherefore, if a man in self-defense uses more than necessary violence, it will be unlawful, whereas, if he repel force with moderation, his defense will be lawful.” 13 EARLY MODERN PERIOD (SIXTEENTH CENTURY) Francisco de Vitoria When Europeans first encountered the native populations of the New World in the 1500s, the law of nations and natural law underwent modification to accommodate them. Thus, Vitoria condemns the conquistadors’ depredations of indigenous peoples, insisting that they be accorded moral status under the law of nations and natural law. As James T. Johnson puts it: For so far as jus gentium is defined by customary relations among men, it, as natural law, is modified when new groups of men, previously unknown to each other, come together. Vitoria’s refusal to treat the Indians as savages little

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Whereas Augustine and Aquinas use the idea of a just war to legitimize the state’s use of martial force, Victoria advances it to criticize its abuses, particularly in the Americas. Vitoria formulates the most developed theory of just war so far, though in continuity with the formulations of the Ancient and Medieval authorities discussed above. With respect to jus ad bellum, he specifies, first, what he deems unjust causes for declaring war. First and foremost among them is a nation’s presumed right of imposing its religion on another. Here he cites the authority of Aquinas. This is a firm proscription against “holy” wars such as the Crusades and, in Vitoria’s own time, Spain’s dispossessing the indigenous peoples of the Americas of the land because of their refusal to convert to Christianity. A second unjust cause of war is one undertaken for territorial expansion. And a third is the personal aggrandizement of a nation’s leader, who ought to put the nation’s interests before his own. 15 Vitoria then turns to what he considers the just causes of war. One is a nation’s right of retaliation for harm done to it: “the sole and only just cause for waging war is when harm has been inflicted.” 16 In support of this dictum, Vitoria evokes the authority of Augustine and Aquinas. However, no nation should go to war to avenge a trivial offense because of the dire consequences of doing so. But when war is once undertaken, the nation with justice on its side has the right to do whatever is necessary to achieve victory since its survival is at stake. 17 Significantly, Vitoria implicitly proscribes pre-emptive wars, that is, a nation’s attacking another nation simply because of a perceived threat and not because of any wrong actually done; without an actual offense avengement is unjustified since the guiltless would be punished. 18 In league with Ambrose, Augustine, and Aquinas, Vitoria further stipulates that a war, to be just, ought to be declared by a competent authority, one having the sole prerogative in deciding issues of war and peace. Though he qualifies their position. They specifically have in mind the king or prince as being the competent authority, that is, a single individual. Whereas Vitoria specifies that the competent authority should be a sizable group of wise men, the monarch or prince together with his councilors and other advisers. The decision to go to war should not be the prerogative of a single person, or even of a few persons, whose understanding of affairs may be limited or biased and whose judgement may be mistaken. 19 A dramatic example of a king soliciting the advice of his councilors as to the justice of a war he is contemplating is in Shakespeare’s Henry the Fifth. Henry consults with the bishops

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of Canterbury and Ely over whether he would be justified in going to war with France. But he cautions them to consider their counsel very carefully since the consequences of even a just war are terrible: Therefore take heed how you impawn our person, / How you awake our sleeping sword of war: / We charge you, in the name of God, take heed; / For never two such kingdoms did contend / Without much fall of blood; whose guiltless drops / Are every one a woe, a sore complaint / ’Gainst him whose wrong gives edge unto the swords / That make such waste in brief mortality. / Under this conjuration, speak, my lord; / For we will hear, note and believe in heart / That what you speak is in your conscience wash’d / As pure as sin with baptism. 20

Wars are not to be entered into lightly but thought through carefully beforehand. Those on whom the decision to declare war lies should debate among themselves and play devil’s advocate, with opposed opinions invited and considered. 21 Though according to Vitoria, a nation’s belief in the justice of its cause does not necessarily mean that justice is in fact on its side for it “is possible that they act in vincible error, or under the influence of some passion.” In war justice is on one side only. The other side may out of ignorance think it has justice on its side when it does not, which exonerates it from guilt since “invincible error is a valid excuse in every case. 22 Vitoria allows for conscientious objection on the part of citizens whose leaders declare a manifestly unjust war; indeed, they are duty-bound to refuse to participate in any such war for doing so would make them complicit in wrong-doing. 23 Vitoria broaches jus in bello by laying down rules for the just conduct of war. One is that innocent civilians should not be deliberately killed since they, unlike enemy combatants, have harmed no one. Nevertheless, he does allow that civilians may be inadvertently, but justly, killed in war from necessity, thus implicitly invoking Aquinas’s principle of double-effect “since it would otherwise be impossible to wage war against the guilty, thereby preventing the just side from fighting. 24 Finally, Vitoria contributes to jus post bellum by specifying what is permissible for victors in a just war to do in pacifying a defeated nation. One thing is the exaction of reparations from the defeated nation to compensate the victorious one for the expenditure of money and other resources in prosecuting the war. A second permissible thing is that the defeated nation may be disarmed for the preservation of the peace. A third thing permissible is that the victors may exact retribution on the enemy for their wrongdoing in order to deter other nations from wronging others and to fulfill the demands of justice, though Vitoria qualifies this by stipulating that the retribution should be proportional to the enemy’s offense. Furthermore, combatants on the unjust side who only followed the orders of their military and political superiors

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should be exempt from punishment for fighting since they had no say in declaring war in the first place. 25 Vitoria’s thus permitting qualified retributive justice in the event of victory makes provision for the prosecution of what today we identify as war crimes such as genocide and other crimes against humanity. Again with respect to jus post bellum, Vitoria generally disallows what today is referred to as “regime change”: “Therefore, although the harm done by the enemy may be a sufficient cause of war, it will not always be sufficient to justify the extermination of the enemy’s kingdom and deposition of its legitimate native princes; this would be altogether too savage and inhumane.” Vitoria evidently puts a high premium on a nation’s sovereignty which he considers inviolable. But in exceptional circumstances he does allow for regime change, particularly if the offending nation has committed egregious offenses or when its current regime if left intact would pose an ongoing threat to peace: “However, it cannot be denied that there may sometimes be legitimate reasons for supplanting princes, or for taking over the government. This may be because of the number or atrocity of the injuries and harm done by the enemy, and especially when security and peace cannot otherwise be ensured, when failure to do so would cause a dangerous threat to the commonwealth.” 26 In summation, Vitoria formulates three rules of war consistent with his above precepts: 1. Since princes have the authority to wage war, they should strive above all to avoid all provocations and causes of war. . . . The prince should only accede to the necessity of war when he is dragged reluctantly but inevitably into it. 2. Once war has been declared for just causes, the prince should press his campaign not for the destruction of his opponent, but for the pursuit of the justice for which he fights and the defence of his homeland, so that by fighting he may eventually establish peace and security. 3. Once the war has been fought and victory won, he must use his victory with moderation and Christian humility. The victor must think of himself as judge sitting in judgment between two commonwealths, one the injured party and the other the offender; he must not pass sentence as the prosecutor, but as a judge. He must give satisfaction to the injured, but as far as possible without causing the utter ruination of the guilty commonwealth. Let him remember above all that for the most part, and especially in wars between Christian commonwealths, it is the princes themselves who are completely to blame; for subjects usually fight in good faith for their princes. 27

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THE EARLY MODERN PERIOD (SEVENTEENTH AND EIGHTEENTH CENTURIES) This period marks two significant shifts in just war theory: a shift away from grounding it principally in natural law (lex naturalis), however conceived, toward grounding it in the law of nations (jus gentium), that body of international agreements, covenants, treaties, and customs embodied in international law; and a shift from a theologically based theory to an increasingly secularized one: “The movement of international law in the modern period has been one of increasing reliance on treaties and precedents, with the customary law still recognized but, because of its vagueness, less useful. Appeal to the natural in adjudicating international disputes is virtually unknown today, and where such appeal does appear it is given but scant attention by lawyers and policy-makers.” 28 It was Grotius, Locke, Pufendorf, and Vattel who are largely responsible for these shifts thus laying the foundations for the contemporary theory of just war. The seventeenth-century jurists and philosophers had hoped to formulate a secular and ideologically neutral theory, i.e., free of theological and metaphysical presuppositions, of a just war that was universal in scope in opposition to the ideological theory of the Middle Ages based on religion. Ironically, though, they ended up formulating their own ideology based on their faith in reason and natural law. According to James T. Johnson, “they were themselves dependent on the ideological structure that they were helping to establish as normative in the civilized world. . . . So the attempt to create a nonideological base for modern just war doctrine succeeded, ironically, only in creating a new comprehensive ideology to replace the disintegrated one in developing war doctrine.” However, the goal of a purely non-ideological theory of a just war was approached by the reliance of its theorists and practitioners on legal precedents: “as just war doctrine became increasingly grounded in an understanding of law as rooted in man’s customs and positive agreements, a more truly non-ideological set of limits on war began to emerge.” 29 The movement toward this this goal was abetted by Grotius, Locke, and Vattel. Hugo Grotius As Vitoria left his stamp on Grotius he in turn would leave his own indelible stamp on international jurisprudence through his seminal The Law of War and Peace (De Jure Belli ac Pacis) of 1625. Grotius essentially iterates the precepts of just war theory as developed by his predecessors. With respect to jus ad bellum, he makes a distinction between what he calls “solemn” (just) wars and those that are not (unjust). To be just, a war must be declared by a competent authority, one who has the

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prerogative to authorize war, within the nation: “Two Things then are requisite to make a War solemn by the Law of Nations. First, that it be made on both Sides, by the Authority of those that have the Sovereign Power in the State: And then, that it be accompanied with some Formalities. . . . These Conditions are equally necessary, so that if the one be wanting, the other is needless.” 30 What is distinctive about Grotius’ jus ad bellum is that he models international law (jus gentium) on a state’s positive or civil law, a very practical move. The just causes of war are analogous to those of civil actions insofar as both kinds demand legal redress. The main just cause of war is redressing an injury done to a nation by another, either an injury done or one threatened: There is no other reasonable Cause of making War, but an Injury received: . . . . Now, as many Sources as there are of judicial Actions, so many Causes may there be of War. For where the Methods of Justice cease, War begins. Now in Law there are Actions for Injuries not yet done, or for those already committed. For the First, When Securities are demanded against a Person that has threatened an Injury, or for the indemnifying of a Loss that is apprehended; . . . . For the Second, that Reparation may be made, or Punishment inflicted; As for Reparation, it belongs to what is or was properly our own, from whence real and some personal Actions do arise, or to what is properly our due, either by Contract, by Default, or by Law.

Significantly, in allowing that a nation is justified in taking preventive action against another that threatens it, analogous to the case that “in Law there are Actions for Injuries not yet done,” Grotius is explicitly endorsing preventive strikes and wars, a departure from Vitoria who opposes such preventive measures. Grotius, though, qualifies this by saying that such preventive action is justified only if the nation undertaking it is certain of the ill intent of its adversary whose power is increasing and threatening; otherwise it is an unjust cause: “the Dread . . . of our Neighbour’s encreasing Strength, is not a warrantable Ground for making War upon him. To justify taking up Arms in our own Defence, there ought to be a Necessity for so doing, which there is not, unless we are sure, with a moral Certainty, that he has not only Forces sufficient, but a full Intention to injure us.” 31 Like Vitoria, Grotius allows for citizens’ conscientious objection to what they believe to be an unjust war undertaken by their nation. But whereas Vitoria allows this only if the war is manifestly unjust such that the conscientious objectors are certain as to its injustice, Grotius allows it if they think it is only probably so, that is, “if the Subject is not only in Suspence, but is, by probable Arguments, more enclined to believe that the War is unjust; especially if he be to take up Arms offensively, and not defensively.” 32 In his remarks on jus in bello, Grotius evokes something like the principle of proportionality affirmed by Augustine and Aquinas. Though a just war is

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defensive, the use of force should be tempered and not aimed at the enemy’s annihilation: It was well observed of Thomas Aquinas, if apprehended rightly, that in our own Defence we do not purposely kill another; not but that it may be sometimes lawful, if all other Means prove ineffectual, to do that purposely by which the Aggressor may die; but we take this Course, as the only Means left to preserve our selves, and not as the principal End proposed, just as in the Judgment of Criminals condemned to Death: For he that is actually attacked, ought even then to chuse rather to do any Thing else, that may stop the Fury of the Aggressor, or disable him, than to secure himself by killing him.

In war the end does justify the means: “That in Things of a moral Nature, as we have often said before, those Means which conduce to a certain End, do assume the very Nature of that End: And therefore we are supposed to be authorised to employ those Things, which are (in a moral, not a physical Sense) necessary to the obtaining our just Rights.” Yet Grotius counsels moderation in implementing these means in the name of justice. He cites the authority of Cicero and Seneca in support of this: “But Cicero has it better, There are certain Duties to be observed even towards those that have wronged us, for there is a Moderation required in Revenge and Punishment. . . . Seneca calls those cruel, who having a just Cause to punish, have no Moderation in it.” Finally, with respect to jus in bello, Grotius with Vitoria insists that innocent civilians should be spared violence, though allowing for exceptions justified by the Thomistic principle of double-effect: “As to Persons who are killed accidentally, and not on purpose . . . that if not for Justice, yet for Pity, we must not attempt any Thing which may prove the Destruction of Innocents, unless for some extraordinary Reasons, and for the Safety of many.” 33 Grotius wrote his The Law of War and Peace against the backdrop of the devastating Thirty Years’ War. (Interestingly, war is a stimulus to renewed interest in and to the further development of just war theory.) Through Grotius most of the precepts of contemporary just war theory became established. It only remained to get them ratified by nations in the form of formal and legally binding treaties. One such treaty was the Treaty of Westphalia (1648) terminating the Thirty Years’ War, regarded as the first document of international law. This treaty banned holy wars and advocated a policy of strict non-intervention in the internal affairs of other states in order to honor their right of national sovereignty. Subsequent just war theorists such as Pufendorf and Vattel took “non-interventionism” to mean a ban on military intervention in another country’s internal affairs even for humanitarian reasons. This strong commitment to national sovereignty and the principle of non-interventionism would hold sway until the end of the twentieth century. Consequently, according to Brian Orend, a just cause was now generally

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restricted to “defence of one’s nation from foreign attack; defence of another nation (especially one’s ally or friend) from foreign attack; and possibly (depending on the theorist) pre-emptive attack. Punishment was not generally accepted, and humanitarian interventions were largely prohibited. State sovereignty reigned supreme.” 34 The inviolability of the right of national sovereignty accompanied, perhaps not coincidentally, the emergence of nation states after the breakup of the Holy Roman Empire in the aftermath of the Thirty Years’ War. John Locke Locke is the first to link just war theory, in particular jus ad bellum, with natural rights, particularly the right to property. According to Locke, the state exists solely to protect the rights of its citizens. A state that does not honor these rights by infringing on them forfeits its legitimacy (and sovereignty) thereby justifying the rebellion of its citizens. Regarding jus ad bellum, Locke, as with previous writers on just war theory, stipulates that the sole just cause for war is a nation’s self-defense: “[e]very government is bound, by the law of nature and the conditions of the original compact, to preserve its subjects and their properties. The individual’s right to make war is given up to the commonwealth with the express limitation that it shall be employed ‘in the defence of the commonwealth from foreign injury,’ which is to say only for ‘the public good.’” Locke expressly proscribes offensive wars. No nation, like an individual in the state of nature, has the right to attack its neighbors without good reason. Paraphrasing Locke, Richard H. Cox writes: Nor, to take the matter from the other side, has any government the right arbitrarily to attack its neighbours’ lives, liberties, and possessions. Individual men in the state of nature have no power arbitrarily to commit rapine, or attack the life, liberty, health, and possessions of others, and they cannot be understood to have transferred any such powers to the government. Therefore, rulers can never legitimately use the public force in war against the people of another society for the purpose of subjugating them. 35

Like Grotius but not Vitoria, Locke permits wars of preemption. Just as an individual in the state of nature has the right to retaliate against another who exhibits an implacable intention to harm him, so does a nation have a right to retaliate against another nation exhibiting such an ill intent: The state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man’s life, puts him in a state of war with him against whom he has declared such an intention . . . it being reasonable and just, I should have a right to destroy that which threatens me with destruction: for, by the funda-

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mental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the common-law of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power. 36

Locke has much to say about jus post bellum, much of it original with him. In pacifying an enemy country, the victors on the just side should hold accountable for the war only the political and military authorities responsible for initiating it, for the citizens have not authorized them to do an unjust thing: I say then the conqueror gets no power but only over those who have actually assisted, concurred, or consented to that unjust force that is used against him: for the people having given to their governors no power to do an unjust thing, such as is to make an unjust war, (for they never had such a power in themselves) they ought not to be charged as guilty of the violence and unjustice that is committed in an unjust war, any farther than they actually abet it.

With respect to reparations, Lock says that though the victors have the power of life and death over the vanquished, they have no right to the latter’s property further than compensation for their own losses in prosecuting the war. Significantly, Locke also stipulates that the victors are not entitled to the property of the innocent relatives and heirs of those guilty in waging an unjust war: The power a conqueror gets over those he overcomes in a just war, is perfectly despotical: he has an absolute power over the lives of those, who, by putting themselves in a state of war, have forfeited them; but he has not thereby a right and title to their possessions. Let the conqueror have as much justice on his side, as could be supposed, he has no right to seize more than the vanquished could forfeit: his life is at the victor’s mercy; and his service and goods he may appropriate, to make himself reparation; but he cannot take the goods of his wife and children; they too had a title to the goods he enjoyed, and their shares in the estate he possessed.

No matter how much the victorious nation on the just side suffered at the hands of the enemy in the form of its damaged and destroyed property, this would in no way justify its seizing as compensation the wealth of the conquered country in perpetuity since its value would far exceed that of the impaired or lost property of the victors: But supposing the charge and damages of the war are to be made up to the conqueror, to the utmost farthing; and that the children of the vanquished,

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Moreover, the victors on the just side have no moral authority to occupy and rule their conquered country except on an interim basis; indeed, if its old government is abolished the citizens have every right to establish another: “Over those then that joined with him in the war, and over those of the subdued country that opposed him not, and the posterity even of those that did, the conqueror, even in a just war, hath, by his conquest, no right of dominion: they are free from any subjection to him, and if their former government be dissolved, they are at liberty to begin and erect another to themselves.” And if the victors impose a government on the vanquished against their will they have the right to rebel: The inhabitants of any country, who are descended, and derive a title to their estates from those who are subdued, and had a government forced upon them against their free consents, retain a right to the possession of their ancestors, though they consent not freely to the government, whose hard conditions were by force imposed on the possessors of that country: for the first conqueror never having had a title to the land of that country, the people who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves from the usurpation or tyranny which the sword hath brought in upon them, till their rulers put them under such a frame of government as they willingly and of choice consent to. 37

According to Johnson, Locke is responsible for three innovations in classical just war theory. One affirms the rights of innocent civilians in a conquered nation against the claims of its conquerors. A second, related to this, concerns the integrity of the land; farmland, the common possession of the territory’s inhabitants and necessary for their continued sustenance, should not be rendered unfit for cultivation: Nowhere previously in the just war tradition is Locke’s argument advanced that the innocent have a strong counterclaim against the just victors regarding what is to be done to punish the guilty and exact repayment for damage done. . . . Neither is there present anywhere earlier in the tradition such a limit as Locke defines on what may be done with the enemy’s land: it may not be despoiled to the point that the innocent will die from want, and it may not be seized in perpetuity for the victors to rule over. Far-reaching limitations on the rights of even a just victor are implied in these new stipulations that Locke draws from the tradition of just war. 38

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A third of Locke’s innovations is his basing just war theory squarely on people’s right to property, the protection of which is the raison d’être of government. He famously declares that everyone has the right to life, liberty, and property, a right that Thomas Jefferson incorporated in the Declaration of Independence, though substituting “happiness” for “property”: The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions . . . [and] when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another. 39

Locke’s restrictions on the behavior of the victors towards the vanquished with respect to their right of property is not a matter of charity, as is the case with earlier just war theorists, but one of justice which demands that the innocent vanquished have a rightful claim against the victors. Emer de Vattel Emer de Vattel’s principles of jus ad bellum are those formulated by preceding just war theorists. Preeminently, a nation has a right of self-defense: “A nation or state has a right to every thing that can help to ward off imminent danger, and keep at a distance whatever is capable of causing its ruin; and that from the very same reasons that establish its right to the things necessary to its preservation.” According to Vattel, nations ought not to do anything to vitiate the perfection of others, which is their faculty to attain the purposes of civil society. Nations should aspire to live in a state of comity with each other: No nation therefore ought to commit any actions tending to impair the perfection of other nations, and that of their condition, or to impede their progress,— in other words, to injure them. And since the perfection of a nation consists in her aptitude to attain the end of civil society,—and the perfection of her condition, in not wanting any of the things necessary to that end—no one nation ought to hinder another from attaining the end of civil society, or to render her incapable of attaining it.

However, if a nation does impair the perfection of another nation, the latter has the right of redress so as to deter such impairments in the future: “Finally, the offended party have a right to provide for their future security, and to chastise the offender, by inflicting upon him a punishment capable of deterring him thenceforward from similar aggressions, and of intimidating those

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who might be tempted to imitate him. They may even, if necessary, disable the aggressor from doing further injury. 40 Like earlier just war theorists, Vattel evokes the condition of competent authority to ensure the justice of war: “A right of so momentous a nature,— the right of judging whether the nation has real grounds of complaint,— whether she is authorised to employ force, and justifiable in taking up arms,—whether prudence will admit of such a step,—and whether the welfare of the state requires it,—that right, I say, can belong only to the body of the nation, or to the sovereign, her representative.” And because the authority to go to war lies wholly with the political leadership, whether vested in one or several persons, the onus is on them if they prosecute an unjust war. They bear the whole of the blame and guilt for manifold crimes, even a crime against humanity itself: “He [the Sovereign] is chargeable with all the evils, all the horrors of the war: . . . , he is guilty of a crime against mankind in general, whose peace he disturbs, and to whom he sets a pernicious example.” 41 Johnson points out, however, that by exempting all others in the nation from guilt in prosecuting an unjust war, such as advisors to the leadership and military commanders who normally have a say in the decision to go to war, Vattel has inadvertently compromised the justice of just war theory. 42 Unlike Vitoria and Grotius, Vattel disallows the exemption of conscientious objectors from fighting: “No person is naturally exempt from taking up arms in defence of the state,—the obligation of every member of society being the same. Those alone are excepted, who are incapable of handling arms, or supporting the fatigues of war.” 43 Unlike Locke and Grotius, but like Vitoria, Vattel disallows pre-emptive wars against nations that merely threaten one’s own without actually doing anything: “A nation has a right to resist an injurious attempt, and to make use of force and every honourable expedient against whosoever is actually engaged in opposition to her, and even to anticipate his machinations, observing, however, not to attack him upon vague and uncertain suspicions, lest she should incur the imputation of becoming herself an unjust aggressor.” 44 With respect to jus in bello, though for Vattel all the citizens, combatants and noncombatants alike, of a nation with which one’s own is at war are to be classified as enemies, noncombatants should be immune from attack: Women, children, feeble old men, and sick persons, come under the description of enemies; and we have certain rights over them, inasmuch as they belong to the nation with whom we are at war, and as, between nation and nation, all rights and pretensions affect the body of the society, together with all its members. But these are enemies who make no resistance; and consequently we have no right to maltreat their persons, or use any violence against them, much less to take away their lives. 45

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Following Locke, Vattel adds to the precepts of just war theory, specifically to those of jus in bello and jus post bellum. Like Locke, Vattel proscribes the willful and indiscriminate destruction of the natural environment: “Those who tear up the vines and cut down the fruit-trees, are looked upon as savage barbarians, unless when they do it with a view to punish the enemy for some gross violation of the law of nations. They desolate a country for many years to come, and beyond what their own safety requires. Such a conduct is not dictated by prudence, but by hatred and fury.” He certainly would have condemned the use of Agent Orange to defoliate the jungles of Vietnam. Vattel goes further than Locke in also proscribing the unnecessary destruction of cultural monuments such as fine buildings. The visual culture of the enemy as represented by their architecture must not be damaged or destroyed. The wanton ruination of exemplary public artefacts is a loss of aesthetic value and an affront to humankind: For whatever cause a country is ravaged, we ought to spare those edifices which do honour to human society, and do not contribute to increase the enemy’s strength,—such as temples, tombs, public buildings, and all works of remarkable beauty. What advantage is obtained by destroying them? It is declaring one’s self an enemy to mankind, thus wantonly to deprive them of these monuments of art and models of taste. 46

He would have roundly condemned the Taliban’s blowing up the statuary Buddhas of Bamiyan in Afghanistan in March of 2001, and ISIS’s demolition of part of an ancient Roman theater and tetrapylon in Palmyra, Syria in early January of 2017. Of course, in some cases despoliation of the land and destruction of cultural artefacts are unavoidable, but ought never to be done for their own sake—Aquinas’ principle of double-effect might be invoked here. Johnson notes that Locke’s and Vattel’s proscriptions on the deliberate spoliation of the environment in time of war, then, are their original contributions to just war theory. Theirs are a blanket condemnation of the “scorched earth” policy in war and carry important implications for the conduct of modern warfare, the jus in bello: By the criteria of Locke and Vattel, both nuclear weapons, which leave a persistent radioactivity for generations after their use, and defoliants, which severely alter the ecology of the region where they are used, must alike be condemned, for both destroy the productivity of the land and thus deny those inhabitants who remain after the war what is their right by nature—a livelihood from their land. 47

I would add that the use of defoliants and nuclear weapons would not only make the land unproductive but also mar the natural integrity of the environ-

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ment by disrupting the entire ecosystem with the concomitant diminution of native species and of natural beauty. Vattel’s position on jus in bello is epitomized in his following exhortation: Though reduced to the disagreeable necessity of prosecuting our right by force of arms, let us not divest ourselves of that charity which connects us with all mankind. Thus shall we courageously defend our country’s rights without violating those of human nature. Let our valour preserve itself from every stain of cruelty, and the lustre of victory will not be tarnished by inhuman and brutal actions. 48

Also relevant to just war theory, particularly to the issue of national sovereignty, is Vattel’s conception of the nation as a person of sorts analogous to a human person. As such, it is as incumbent on nations to coexist peaceably as it was on individual persons in a state of nature: That society, considered as a moral person, since possessed of an understanding, volition, and strength peculiar to itself, is therefore obliged to live on the same terms with other societies or states, as individual man was obliged, before those establishments, to live with other men, that is to say, according to the laws of the natural society established among the human race, with the difference only of such exceptions as may arise from the different nature of the subjects. 49

Vattel’s attribution of personhood to nations is significant in several respects: One is, as moral beings, they have obligations toward one another. That is, they necessarily exist in a moral relationship with each other, not just a legal and political one, and so constitute a moral realm distinct from the legal and political realms. However, attributing personhood to nations raises the question as to what kind of persons they are; obviously they are not persons in the literal sense that human beings are. Perhaps they are quasi- or virtual persons. But what justification is there for considering them thus? This involves a deeper, metaphysical question as to what constitutes personhood in any being, human or otherwise—what is it, exactly, that makes a person a person? I shall broach these questions in a later chapter where I discuss and attempt to resolve the ethical and other philosophical issues raised by just war theory. Like Locke, Kant later in the eighteenth century in his reflections on international relations, emphasizes the importance of human rights and endorses revolution in their name. He believes that republics committed to honoring the rights of their citizens would spontaneously form themselves into international federations or leagues and, inspired by their example, other nations would join with them and so together further the cause of world peace, a scheme for which is found in his Toward Perpetual Peace. Accord-

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ing to Orend, “Pro-rights societies, he [Kant] predicted, would eventually band together to form a prosperous, peaceful federation of free nations. Their success, in turn, would spur other nations to change internally so as to join the club, and a kind of peaceful ‘cosmopolitan federation’ would grow and grow.” 50 Unfortunately, however, this optimistic prediction still remains a dream. Orend credits Kant with almost single-handedly putting teeth in the jus post bellum, as well as in jus ad pacem, by specifying how a just peace might be secured, an issue, by the way, neglected by just war theorists. With their emphasis on human rights, Locke and Kant transferred sovereignty from states to their citizens. RECENT DEVELOPMENTS The period from 1850 to 1914 up to the First World War was the golden age of the codification of just war theory in international law and the ten different treaties of the Hague Conventions established between 1899 and 1907, although regrettably they failed to prevent that catastrophe. After the First World War, there were further modifications in just war theory. Excluded as a just cause was ideology such as wars of national liberation and making the world safe for democracy. The sole but sufficient justification now for a nation’s declaring war was its self-defense, formalized in the Kellogg-Briand Pact (1928) that reduced the number of just causes for war to one, namely, a nation’s self-defense—“no aggressive war, but no restriction on defensive war.” 51 Similarly, Article 51 of the United Nations Charter prohibits all first use of military force, sanctioning only a second use of force as retaliation against an armed attack. However, this limitation on retaliatory force does not consider that aggression can take a technological form such as cyberattacks, and retaliation can take an economic form such as the imposition of economic sanctions on aggressors. Moreover, the Charter of the United Nations (1945) shifted the authority to declare war from a single nation to a coalition of nations. Compacts like the Covenant of the League of Nations, the Kellogg-Briand Pact, and the United Nations Charter prescribed arbitration over war in resolving international disputes. In Article 1 of the KelloggBriand Pact, its signatories “condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another,” though this prescription did not abrogate a nation’s “inherent right of self-defense.” 52 In the aftermath of Hitler’s genocide in the Second World War occurred the most significant modification of just war theory which put the honoring, promotion, and vindication of human rights at its foundation. This is reflected in conventions instituted to check crimes against humanity such as the Convention Banning Genocide (1948); the Geneva Conventions (1949);

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the Universal Declaration of Human Rights (1948); and the Rome Statute of the International Criminal Court (1998), which established the first permanent international war-crimes tribunal. These conventions codified in international law Locke’s rights-based theory of the justice of war, and thereafter just war theorists have been obliged to take seriously Locke’s defense of human rights and their relation to the legitimacy of the state. 53 Johnson proposes, in the way of further modification of just war theory, that given the terrible devastation of modern warfare the limitations on war of jus ad bellum and jus in bello must become that much more stringent. Their justification may require that just war theory resort once again to some ideological commitments, that is, commitments to certain values universally held. Indeed, a consensus as to the content of these values may result from an emergent international community. Johnson seems to have in mind something like the possible emergence of a universal moral community as envisioned by the British Idealists (discussed in the previous chapter on rights): The awful destructiveness of modern war in all its forms points to the need for more stringent and more workable limits on both the resort to war and its prosecution once begun. . . . If limitation free from ideology cannot meet these demands, then constraints based on ideology will also have to be employed . . . for the first time since the Middle Ages there is a rudimentary international community that is nearly universal in membership. This suggests that a universal value system is not so far off as it was throughout the intervening centuries. We are now at a good point in history to try again the limitation of war by restraints based in ideological standards, with the hope and intent that a new and just war doctrine can result. 54

In response to the pervasiveness of bellicose acts by terrorists in the world today performed by agents unaligned to any state, traditional just war theory may need either to be rethought from the ground up or simply emended to meet this new situation. As Orend notes: An even deeper issue is whether, as some have argued, the laws of war and just war theory must be completely rethought in the Age of Terror . . . the laws of armed conflict and just war theory have generally been constructed assuming that state governments, and their armed forces, are the main belligerents in the given conflict. But 9/11 revealed that non-state actors, like terrorist groups, can now pose state-scale levels of threat and destruction. Are new principles needed? 55

SUMMATION From the various historical documents concerned with the justice of war surveyed above we have, as previously indicated, the makings of just war

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theory as it stands today. All the ancient, medieval, and modern authorities agree as to the rules that should be observed in declaring and waging war, and in establishing the peace thereafter—these are the laws of war. I shall now summarize these rules and show how they coalesce into the three components of just war theory, viz., jus ad bellum, jus in bello, and jus post bellum. There is agreement on the following points as to the justice of war: A war to qualify as just (1) must have a just cause, namely, a nation’s selfdefense or that of an ally; (2) must be declared by a competent authority, the political leadership authorized to make that declaration; (3) must have the right intention, that is, be fought for the sake of justice or the vindication of human rights and not for the sake of revenge or territorial expansion. There is disagreement, though, as to the permissibility of pre-emptive wars. This, by the way, is a moral, as well as a legal, issue which I shall address in a subsequent chapter. These points or principles as to the justice of war constitute the component of jus ad bellum, the moral and legal right to make war. There is agreement among these authorities on how the war, once declared, is to be waged: (1) Innocent civilians are not to be deliberately targeted for attack; (2) the use of military force ought to be restrained and proportional to strategic goals; and (3), for some (Locke and Vattel) the land itself and even public monuments (Vattel) ought to be spared devastation as much as possible. These strictures constitute the component of jus in bello, what is morally and legally right in the actual conduct of war. Classical just war theorists also agree that the aim of war is peace. This means, among other things, that reparations should not exhaust the resources of the vanquished nation but be fair; that only those responsible for initiating an unjust war should be held to account; and that the sovereignty of the defeated nation should be respected. These are the conditions constituting jus post bellum, the moral and legal ways of pacifying an enemy country after its defeat, as well as jus ad pacem, the means of perpetuating peace. The history of just war theory reveals three trends in its development: One is a gradual stripping away of any ideological presuppositions, typically theological. A second trend is toward substituting the law of nations for natural law as its basis. And a third is its progressive secularization. Finally, what of the credibility of the laws of war as prescribed by the classical just war theorists? That among a variety of thinkers in different times and places there is a consensus as to their content and their importance makes them credible and worthy of our continued serious attention. NOTES 1. James Turner Johnson, The Quest for Peace: Three Moral Traditions in Western Cultural History (Princeton, NJ: Princeton University Press, 1987), 65.

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2. Aristotle, Politics, in Politics of Aristotle, trans. Peter L. Phillips Simpson (Chapel Hill: The University of North Carolina Press, 1997), 152, 134. 3. Ibid., 151, 134. 4. Cicero, On the Commonwealth and On the Laws, ed. James E. G. Zetzel, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1999), 143, 73. 5. Ambrose, “On the Duties of the Clergy,” in Nicene and Post-Nicene Fathers, Series II, Volume 10, ed. Philip Schaff (Grand Rapids, MI: Christian Classics Ethereal Library), 84, 97, http://www.agape-biblia.org/orthodoxy/Early_Church_Fathers/npnf2-10.pdf. 6. Augustine, Contra Faustum, Bk. 22, 74, http://www.newadvent.org/fathers/1406.htm. 7. Augustine, Concerning the City of God against the Pagans, trans. Henry Bettenson (London: Penguin Books, 1972), Bk. 19, Chap. 7, 861-62. 8. Augustine, Contra Faustum, Bk. 22, no. 75. 9. Augustine, Letter 189, http://www.newadvent.org/fathers/1102189.htm. 10. Augustine, Concerning the City of God, Bk. 19, Chap. 12, 866. 11. Thomas Aquinas, On Law, Morality, and Politics, ed. William P. Baumgarth and Richard J. Regan (Indianapolis, IN: Hackett Publishing Company, 1988), 221. 12. Ibid., 226. 13. Ibid. 14. James T. Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts, 1200-1740 (Princeton, NJ: Princeton University Press, 1975), 170. 15. Francisco de Vitoria, On the Law of War, in Francisco de Vitoria: Political Writings, ed. Anthony Pagden and Jeremy Lawrance, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1991), 302–03. 16. Ibid., 303. 17. Ibid. 18. Ibid., 303. 19. Ibid., 308. 20. William Shakespeare, Henry the Fifth, in The Complete Works of Shakespeare, ed. David Bevington, 4th ed. (New York: Longman, 1997), 1.2.21–32. References are to act, scene, and lines. 21. Vitoria, On the Law of War, 307. 22. Ibid., 306–07, 312–13. 23. Ibid., 307. 24. Ibid., 315–16. 25. Ibid, 304, 305, 321. 26. Ibid, 326. 27. Ibid, 326–27. 28. Johnson, Ideology, Reason, and the Limitation of War, 261. 29. Ibid. 30. Hugo Grotius, The Rights of War and Peace, ed. Richard Tuck, Natural Law and Enlightenment Classics (Indianapolis, IN: Liberty Fund, Inc., 2005), Bk. 1: 250. 31. Ibid., Bk. 2: 393–95, 1102. 32. Ibid., Bk. 2: 1180. 33. Ibid., Bk. 2: 398; Bk. 3: 1186, 1420–21, 1439 34. Brian Orend, The Morality of War (Peterborough, ON: Broadview Press, 2006), 18. 35. Richard H. Cox, Locke on War and Peace (Oxford: Clarendon Pres, 1960), 155. 36. John Locke, Two Treatises of Government and A Letter Concerning Toleration, ed. Ian Shapiro, Rethinking the Western Tradition (New Haven: Yale University Press, 2003), 107. 37. Ibid., 180, 181, 182, 183–84, 185. 38. Johnson, Ideology, Reason, and the Limitation of War, 240. 39. Locke, Two Treatises of Government, 102. 40. Emer de Vattel, The Law of Nations, ed. Bela Kapossy and Richard Whatmore, Natural Law and Enlightenment Classics (Indianapolis, IN: Liberty Fund, Inc., 2008), 88, 271–72, 289. 41. Ibid. 470, 586. 42. Johnson, Ideology, Reason, and the Limitation of War, 244.

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43. Vattel, Law of Nations, 474. 44. Ibid., 288–89. 45. Ibid., 549. 46. Ibid., 549, 570, 571. 47. Johnson, Ideology, Reason, and the Limitation of War, 253. 48. Vattel, Law of Nations, 563–64. 49. Ibid., 73. 50. Orend, Morality of War, 19–20. 51. Johnson, Ideology, Reason, and the Limitation of War, 267. 52. Article 1, Kellogg-Briand Pact 1928, in Avalon Project: Documents in Law, History and Diplomacy, http://avalon.law.yale.edu/20th_century/kbpact.asp. 53. Orend, Morality of War, 23. 54. Johnson, Ideology, Reason, and the Limitations of War, 274. 55. Orend, Morality of War, 25–26.

Chapter Eleven

Contemporary Just War Theory

I here consider just war theory as it currently stands which, as will be evident, recapitulates all the main elements of classical just war theory as it has come down to us. To review: There are three components to modern just war theory which have emerged in its historical development: (1) jus ad bellum (justice/law for or about war); (2) jus in bello (justice/law in war); (3) jus post bellum (justice/law after war). Jus ad bellum has to do with the moral and legal right to make war; it is concerned with what makes the cause for war just. Jus in bello is about what is morally and legally right in the actual conduct of war and so considers such issues as the proper treatment of civilians and prisoners of war, and restraints on the use of military force. Jus post bellum deals with the moral and legal ways of pacifying an enemy country after its defeat. However, I shall add a fourth component of my own devising, namely, jus ad pacem (justice before war), which concerns the prevention of war. This component might be subsumed under jus post bellum, or otherwise closely associated with it. The restraints on the behavior of nations with respect to war may be referred to collectively as the “laws of war.” These components of just war theory, though conceptually distinct, are actually different phases of a continuous process. Brian Orend draws an analogy between them and surgery where there is a preoperative phase (jus ad bellum), an operational phase (jus in bello), and a closing phase (jus post bellum). 1 To continue with this analogy, jus ad pacem would comprise the measures taken to prevent the need for surgery at all. The other components of just war theory are derived from jus ad bellum which might stand in synecdochically for all three. A war to qualify as just must meet the conditions laid out in all the components of just war theory other than jus ad pacem. Otherwise a war that meets the condi147

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tions of jus ad bellum may violate those of jus in bello, or vice versa, that is, a justly declared war might be fought unjustly whereas an unjustly declared war might be fought justly, though this is highly unlikely. I shall now consider each component of just war theory in its current formulation. JUS AD BELLUM A war to be just, or morally justified, must meet the following criteria: (1) its public declaration by a competent authority; (2) the justice of its cause; (3) a right intention; (4) careful calculation of the total cost of war, including the expenditure of money and other resources and an estimate of human casualties; (5) a high probability of victory; (6) the last resort after all other measures, diplomatic and otherwise, have been exhausted to maintain the peace. Each of these six criteria will now be considered in more detail together with noting problems in their interpretation and application. Competent Authority The criterion of competent authority concerns who may legitimately declare war. That authority has traditionally been vested in a political figure like a monarch, chancellor, prime minister, or president and is derived from the nation’s constitution if it has one. In the United States of America it is Congress alone that is that competent authority. Furthermore, a nation is authorized to make war only if it makes a public declaration of its intent to its citizenry and to the enemy. Article 3 of the Hague Convention III of 1907 stipulates that no signatory nation may go to war without “previous and explicit warning, in the form either of a declaration of war or of an ultimatum with conditional declaration of war.” 2 This is to secure the consent of the nation’s people on whose behalf war is about to be waged (especially important in a democracy), and to apprise a nation facing attack that war is imminent, which might serve to make it reconsider the wisdom of its bellicose policies. However, this does not obviate immediate, undeclared retaliation against “blitzkrieg” attacks so long as the nation’s executive authority has been duly given this prerogative and procedures are in place for eventual legislative review and approval. Just Cause There is no difficulty, or disagreement, as to what counts as unjust causes of war. Orend identifies as the fundamental cause of all unjust wars a nation’s “core drive for dominance,” 3 a nation’s Nietzschean will to power. More specific examples of unjust causes are identified by Augustine as the desire to inflict harm for its own sake, the thirst for vengeance, the lust for power,

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and the acquisition of territory and wealth. To these can be added causes that once were deemed just but no longer such as enslaving those who were thought to be slaves by nature, advocated by Aristotle; the civilizing of socalled barbarians, endorsed by Mill no less 4; or converting the infidel (however interpreted), used by Crusaders and jihadists and other wagers of religious wars throughout history. But what makes a cause just? It is hard to say what that is in the abstract. For Vitoria it is “a wrong received” by a nation, this though is open to different interpretations. The wrong received interpreted as violation of a nation’s rights might lead to military retaliation for perceived wrongs that did not employ military force, such as starting a trade war, thus permitting a first use of arms by the offended nation. In the nineteenth century, it was interpreted as the violation of a nation’s rights (specifically of sovereignty) by another; however, by the twentieth century it was recognized that this is too narrow a criterion since it overlooks the rights of peoples in contrast to those of states. However, examples of a just cause can be given, perhaps the best that can be done under the circumstances but adequate for our purposes. The Right of National Self-Defense One example, which is intuitively obvious and may be regarded as the paradigm of a just cause, is a nation’s inalienable right to defend itself against foreign attack or some other act of aggression which is “the violent violation of human rights” generally or “the violation of state rights to territory and sovereignty” specifically. This Orend designates the “Core Principle on Aggression” (CPA) according to which, “the commission of aggression by any aggressor A, against any victim V, entitles V—and/or any third-party vindicator T, acting on behalf of V—to employ all necessary means to stop A, including lethal force, provided that such means do not themselves violate human rights.” 5 The victim is morally entitled to go to war. It is not reasonable that a state should not have the right to retaliate so as to do its duty by its citizens of protecting their rights. According to the CPA, a nation’s right to self-defense against another’s aggression is a sufficiently just cause for war. But the question now occurs, what qualifies as an act of aggression the defense against which constitutes a just cause for war? For Orend, it is an armed attack violating human rights. For the United Nations, it is an attack on a nation’s right of political sovereignty. According to its definition adopted by the General Assembly in 1974, “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.” The Charter further specifies that any of the following acts qualifies as aggression:

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a. The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; b. Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; c. The blockade of the ports or coasts of a State by the armed forces of another State; d. An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; e. The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; f. The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; g. The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein. 6 Lackey, though, notes that, as narrowly defined above by the U.N. special committee, aggression is restricted to what infringes the rights of nations, i.e., their right to sovereignty and self-determination (though Article 7, in the spirit of Locke, does allow that citizens may legitimately take up arms against their governments which deprive them of their human rights): In failing to enumerate under “acts of aggression” such traditional causes of war as attacks on citizens abroad, assaults on nonmilitary ships and aircraft on the high seas, and the seizure of property of aliens, the committee counted as aggression only military acts that might substantially affect the physical security of the nation suffering aggression. The only violation of rights that merits the unilateral use of force by nations is the physically threatening use of force by another state. 7

In light of this restriction, an argument may be made for expanding the definition of “aggression” to include the violation of human rights per se, individual as well as national, as a just cause for war. Indeed, an attack on a nation is as much a violation of its citizens’ rights as of its own. A nation ideally exists only to protect and secure the human and civil rights of its people—indeed, its right of sovereignty depends upon its doing this. Any

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attack on a nation, then, is indirectly an attack on its citizens’ rights since these include the right to protection from their government which it can provide only if it has the opportunity, one a foreign invasion would foreclose. The violation of a nation’s rights is as much a violation of its citizenry’s rights. There is currently no international agency, none with teeth as it were, to safeguard a nation’s rights; thus, it is entirely up to the nation to do so. Nations exist in a state of nature, where, according to Locke, each has an inherent right to self-defense since it cannot appeal for military help to a more powerful body like the UN. The only feasible way at present for a nation to safeguard its rights against foreign aggression is defensive military retaliation. Nor is it fair that a victimized nation loses the lives of its citizens and wastes it resources in an unwarranted attack while the aggressor nation undeservedly benefits; a wrong needs to be redressed. The aggressor nation bears full responsibility for its unprovoked attack and has no grounds to complain if it meets with retaliation. The victimized nation has an implicit entitlement, a right and even a duty, to do what is necessary, including the use of lethal force, to maintain its rights and those of its citizens. Moreover, in retaliating militarily, the victim state is not violating the rights of the aggressor state since it forfeited them in its aggression. The CPA is an expression of a nation’s right of political sovereignty over its people and territory and of self-determination; it has the right to defend its sovereignty against foreign (or domestic) aggression. But what are the roots of a nation’s sovereignty that constitute it as a right? Orend identifies two roots: one negative, the other positive: “Fundamentally, political sovereignty is rooted: 1) negatively, in our disdain for aggressive foreign domination; and 2) positively, in the individual human rights to freedom and security possessed by everyone within that community.” 8 Consequently, against foreign aggression a nation is wholly within its rights to retaliate in kind so as to punish the aggressor nation, and so vindicate and preserve its rights and those of its citizens. Michael Walzer offers a “theory of aggression,” or “legalistic paradigm,” for justifying a nation’s right to defend itself against foreign aggression which builds on the fact that there exists an international society of autonomous and sovereign nations bound by international laws based on treaties, covenants, and conventions establishing rights of its members, viz., rights of territorial integrity and of political sovereignty. An act of aggression by one nation against another is a violation of the latter’s rights, together with those of its citizens, and as such is a crime demanding legal redress in the form of military action. The defense of rights, then, is the sole just cause for war, as Walzer strenuously insists:

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Chapter Eleven The defense of rights is a reason for fighting. I want now to stress again, and finally, that it is the only reason. The legalistic paradigm rules out every other sort of war. Preventive wars, commercial wars, wars of expansion and conquest, religious crusades, revolutionary wars, military interventions—all of these are barred and barred absolutely, in much the same way as their domestic equivalents are ruled out in municipal law. 9

Note that Walzer’s legalistic paradigm for justifying a state’s right to selfdefense is reminiscent of Grotius’ modelling of international law on a state’s civil law. The just causes of war are analogous to those of civil actions demanding legal redress. Walzer’s legalistic paradigm is based upon an analogy between the international order among states and the civil order within a state where the rule of law obtains. Just as citizens have certain rights enforced by civil law (at least in democratic societies) so do states have rights enforceable by international law. In his words, “If states actually do possess rights more or less as individuals do, then it is possible to imagine a society among them more or less like that society of individuals. The comparison of international to civil order is crucial to the theory of aggression.” However, Walzer’s analogy between the international order and a civil order is not perfect, which he himself concedes: Because of the collective character of states, the domestic conventions of capture and punishment do not readily fit the requirements of international society. They are unlikely to have significant deterrent effects; they are very likely to extend rather than restrict the number of people exposed to coercion and risk; and they require acts of conquest that can only be aimed at entire political communities. 10

Furthermore, despite the system of international laws, conventions, covenants, and treaties binding and restraining them, nations still largely exist in Hobbes’s state of nature where the condition of “war against all” prevails, unlike citizens within a civil society, because there is no recognized international police force that has the authority and power to enforce the law. Related to the question of whether a nation has the right of self-defense against foreign aggression is the question of whether its citizens have that right. Do a defeated people have the right of armed resistance against the aggression of their occupiers such as that undertaken by the French and Poles against the Germans during the Second World War? It seems intuitively obvious that they would since their resistance would be simply an exercise in another form of a nation’s right to self-defense. Oddly enough, though, Locke thought otherwise. He believes that a vanquished people should wait patiently until their occupying enemy leaves: “if God has taken away all means of seeking remedy, there is nothing left but patience.” 11 Presumably,

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acts of civil disobedience and other forms of peaceful resistance would be morally permissible. However, Locke’s prohibiting armed resistance is inconsistent with his view that a government is legitimate only if it is founded on the consent of the governed; if not, they have the right of rebellion. The mock government set up by an occupying force would lack all legitimacy and so the people would have the right of armed rebellion against it. Right Intention A third criterion to be met for the justice of war is the agent’s possession of the right intention or motive in declaring it, and that this be the sole or principal one behind its declaration. This means that war must be waged for no other reason than a just cause. Ulterior motives such as the acquisition of territory and resources, ethnic or racial hatred, or revenge for previous slights are morally inadmissible and taint the whole enterprise. This criterion of right intention expresses Kant’s deontological viewpoint. Kant insists that an action is morally good if and only if it proceeds from a good motive, or right intention, that for him is a sense of duty. If it is done from any other motive such as the agent’s self-interest, or even from the expectation of its beneficial consequences redounding to others, then it is tainted and no longer wholly morally good. Having the right intention as stipulated by jus ad bellum entails the commitment of a nation at war to following the precepts of the other two components of just war theory, namely, those of both jus in bello and jus post bellum. It thus serves as a principle linking the three components of just war theory both conceptually and practically, as Orend notes: “Thus, in addition to having one’s subjective intentions (in going to war) [right intention] be consistent with one’s objectively just cause [jus ad bellum], one must also clearly and publicly commit, in advance of the war starting, to adhering to the other rules of just war theory [jus in bello and jus post bellum]. 12 However, a right intention as a criterion in determining the justice of war, as unimpeachable as it might seem, is nevertheless open to several objections, though they are readily met. One objection is that an agent’s right intention does not guarantee that the subsequent action will produce beneficial results: right or good intentions, on the part of nations as well as individuals, might produce disasters—according to the old adage, the road to hell is paved with such. For a strict Kantian ethicist, though, this is an irrelevant objection since it confuses a utilitarian standard with a deontological one: all that counts in determining the rightness of an action is the motive or intention; the results are of no account. A second objection that may be lodged against the criterion of a right intention is the difficulty, if not impossibility, of deciding whether any action was indeed rightly intended. It is for this reason that this criterion is absent

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from the international law governing armed conflict. It is difficult enough to decide whether or not our own actions were motivated by a good intention or even what our real motive was in a particular case. The situation is further complicated by the fact that we may act from several different motives at the same time, some of which being unconscious are hidden from us. We may be mistaken as to our real motive in acting, or think we are acting with a right intention when not. As Freud makes plain, our efforts to discern introspectively our real motives or intentions might be distorted by self-deception and rationalization. How can we ever be sure that an intention is not tainted by some elements of self-interest? There is the same problem, to an even greater degree, in determining the motives, real or not, of others, which lie well beyond our ken. This is particularly acute when it comes to accurately determining the real motive or intent of a collectivity like a nation. Nations are notoriously adept at duplicity by hiding their real, dishonorable intentions behind a mask of pretexts. Moreover, a nation may rightly intend the securing of a peace, but only by forcibly annexing the territory of a belligerent neighbor. Here in a single action the right intention is inseparable from the self-interested benefit to the state of territorial acquisition. Yet this hardly matters if the original intention is securing peace with territorial annexation (not the original intention) being merely a concomitant means to that end. Here Aquinas’ principle of doubleeffect might be invoked—what determines the merit of the action is the principal intention of peace, not the incidental effect of acquiring territory. Walzer believes that supposing a nation’s having “a pure good will” is “a political illusion,” 13 though it may be possible for an individual person, as Kant thinks. When nations act they do so necessarily from a mixture of right and wrong intentions and motives, not from a single pure and unalloyed one. Be that as it may, for Walzer it is sufficient that a right intention, e.g., that an injustice by rectified, be present somewhere in the mix of motives that might be vindictive or self-serving. Though this raises the question of whether the right intention should be the dominant one or not. However, the difficulty of determining motives and distinguishing right intentions may be exaggerated. Our own motives and those of others are not as opaque as they may seem. The discerning mind might descry the motives of ourselves and others as they are betrayed in the overall patterns of their behavior, body-language, and slips of the tongue. And though political leaders may act from multiple motives, some of which may be morally dubious, the possibility that one at least is identifiable as a right intention may be understood as redeeming the rest and lending their ensuing actions legitimacy. Yet even if determining the right intention for war might prove difficult, there are motives or intentions that are manifestly wrong. As we saw earlier, Augustine cites the following as examples: “The real evils in war are love of violence, revengeful cruelty, fierce and implacable enmity, wild resistance,

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and the lust of power.” By eliminating these intentions as wrong, the intentions remaining may qualify as right. Though he went so far as to declare, contrary to Walzer, that even if just one of these base motives is present, but merely peripheral, along with a right intention, a war is unjust. Moreover, the above objections to a right intention as a criterion for determining the justice of war might be blunted somewhat if the following conditions are met: (1) that the intention alleged to be right is publicly declared and the justice of the cause previously established; (2) that whatever other goals may be pursued, even those in the national self-interest of the warring nation, do not obstruct the goal of prosecuting the just cause and securing an equitable peace; (3) that disinterested authorities like the United Nations are invited to monitor the progress of the war to see that it is being pursued according to the publicly proclaimed right intention. A third objection to the criterion of a right intention is a utilitarian one. It is not motives and intentions that determine the rightness or wrongness of actions but solely their consequences. If the consequences of an action are likely to, or in fact do, benefit their agent and others then it is deemed the right one to take. Thus a prescriptive realist with a utilitarian bent might argue that national self-interest alone justifies a nation’s going to war. It is implausible, even well-nigh impossible, to keep national self-interest out of the equation of planning for war. Moreover, in the state of nature within which they necessarily exist, nations reserve the fundamental right of selfdefense which is in their interest. Consequently, out of prudence, nations ought always to act in their own self-interest including acts of war. Thus, the criterion of right intention, apart from being difficult to determine empirically, is irrelevant in deciding the justice of war. However, intentions are not entirely irrelevant in the moral evaluation of behavior whether that of individuals or nations which is why there is a legal distinction between murder and involuntary manslaughter. Even a classic utilitarian like Mill thought that acting virtuously from right motives, though not affecting the worth of actions per se (this being determined by their consequences), did confer worth on the agent’s character. In addition to the original rationale for a right intention as a criterion of jus ad bellum, together with the replies to the above objections to it, another reason might be adduced for its remaining a bona fide criterion, and that is the moral confidence it might inspire in retrospect. Thus, were a war declared with the right intention but turned out badly, the knowledge that it was so motivated would go some way in lessening the self-recrimination and guilt that might subsequently afflict the leaders and their nation—at least they could take some cold comfort in the fact that according to their best lights at the time they acted in good faith.

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Proportionality A fourth criterion that must be met for a war to be accounted just is that of proportionality, 14 which is codified in Articles 22–23 of the Hague Convention III. The principle of proportionality stipulates that a war should be prosecuted if and only if the anticipated benefits of victory are calculated to significantly outweigh, or be high proportionally to, the estimated costs such as harm in the form of casualties and financial expenditures. These benefits and costs must be “universal,” meaning that they would redound not only to the nation contemplating war but also to other nations that may be affected by it. Or, to put it in another way, proportionality requires that a war is just if and only if the harm consequential upon it is significantly less than the harm consequential upon not waging it. A “cost-benefit analysis” should be undertaken before declaring war. Proportionality is a prudential criterion to be met for a war to qualify as just. This concerns more the interests of those about to declare war rather than those of the enemy. Legally and morally considered this is a relatively uncomplicated criterion; though given the lethality of today’s weaponry, proportionality may dictate that certain weapons ought not to be used or that the prospective war not be waged at all. Although the moral issue might emerge as to whether a nation with the military power to do so should intervene in another’s affairs—say, to prevent genocide—though to the material detriment of its own citizenry. This notwithstanding, the issue of cost is fundamentally an empirical one. However, it should always be borne in mind that the economic cost of war is typically underestimated as was the case in the United States’ recent wars in Iraq and Afghanistan. Now the cause of a proposed war may very well be just, but if the harm caused by it would significantly outweigh any benefits, or if victory were impossible, then the prosecution of such a war would not qualify as just. However, as Lackey points out, determining whether the estimated benefits of waging war justifies the harm consequent upon it raises the question of how “harm” is to be interpreted. If harm is thought of broadly in physical terms as death, injury, suffering, destruction, and financial depletion, then a war is just if and only if there would be more of those harms if the war were not fought than if it were, that is, if the good resulting from war outweighed the unavoidable harm—this would be the case, perhaps, in wars of intervention to stop genocide in the nation invaded. However, on this interpretation most wars (even supposedly just wars) have failed to meet the criterion of proportionality given the massive lethality, destructiveness, and expense of war. Alternatively, if harm is thought of in political terms as the violation of human rights, then a war is just if fewer rights would be violated by fighting it than not. Consequently, since a just cause necessarily seeks to ensure and

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promote human rights, then the majority of wars with just causes have met the criterion of proportionality. 15 The relevant question, though, is not so much how harm is interpreted as which forms of harm are worse. Harm is harm no matter what form it takes, but some forms are worse than others. Untimely death is worse than injury (though death may be preferable to living with catastrophic injuries like massive brain damage); and both death and injury are worse than property damage (though conceivably an exception might be made in the case of certain irreplaceable and invaluable works of art), bankruptcy and deficits. However these various forms of harm are ranked, though, a ranking is possible. So this brings us to the question of which form of harm is worse: the death, injury, suffering, and destruction following in the wake of war, or the violation of human rights precipitating it? There is no clear answer here. It might appear intuitively obvious that the former is worse than the latter. Yet martyrs would surely disagree—for them certain fates are worse than death. Patrick Henry in his famous demand, “Give me liberty or give me death,” certainly thought being deprived of the right to liberty (a violation of a right) is worse than death. 16 The same sentiment is expressed in the state motto of New Hampshire: “Live free or die.” Those volunteers from abroad who went so Spain to fight on the Republican side in the Spanish Civil War risked life and limb to further the cause of freedom and believed that that cause was justification enough for taking up arms and risking death and injury to themselves. The different ways the various forms of harm are ranked nonetheless confront us with a dilemma: If the violation of human rights is deemed the worse harm, then the criterion of proportionality is subsumed under that of a just cause and fails to clarify the idea of a just cause—the very reason for introducing proportionality as a supplementary criterion in the first place. On the other hand, if physical harm is deemed the worse, then the criterion of proportionality would outlaw virtually all wars and, as Lackey says, reduce “just war theory to antiwar pacifism.” 17 Of course any war is harmful, so stipulating that a war is just if and only if it does more good than harm is too vague. The point at issue is just how much harm is permissible in a just war. If the war does not produce “a great deal more harm than good” then it is permissible, and so just, according to the principle of proportionality. The question now arises, however, as to what constitutes a “great deal” of harm as opposed to an acceptable level? There is no formula that can be applied to resolve this issue. Lackey puts it this way: All just causes are just, but some are more just than others. The amount of harm that it is morally permissible to produce in pursuit of a just cause should be a function of the moral importance of the cause. No formula can be generated for weighing the justice of the cause against the harm that might be done in

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However, applying the criterion of proportionality is problematic in further ways. First, there is the problem of how to compare incommensurate things. On the one hand there are quantifiable factors like the financial cost of war and the number of causalities expected. The financial cost is distinguishable into the explicit cost, like that of mobilizing for war, and the implicit cost, like the toll on domestic programs. On the other hand, there are qualitative factors like the value of national sovereignty and human rights. Orend makes a further distinction between short-term and long-term costs and benefits (quantifiable or unquantifiable): How can we pretend to measure, on the same scale of value, the benefits of defeating aggression against the body count needed to achieve it? For example it sounds ridiculous—literally, groundless—to say things like: ‘My country’s freedom from aggression is worth $300 million . . . and 245,000 casualties.’ The numbers appear completely arbitrary, and the comparison between an abstract, like independence, and a concrete, like cash and causalities, seems as ill-conceived as one between apples and exchange rates—they are simply different things. 19

Second, there is the problem of precisely estimating the probability of certain benefits and costs occurring even if they are quantifiable. The principle of proportionality is, at best, a rough rule of thumb that constrains the pursuit of a just cause in war. Orend again: Proportionality, at best, provides some checks and balances, some outside constraints, on the drive to secure a just cause. . . . Proportionality has, so to speak, negative content: it does not really positively add anything except to remind us that the problem in question has to be so severe (like unjust armed invasion) that war is, in fact, an appropriate response—and to suggest that the good to be gained from the war must be better than the substantial costs and evils we know war always brings in train. 20

Lackey counsels that an empirical approach be taken to the weighing of these conflicting factors, and that those making these decisions (those possessed of the proper authority to declare war), it is hoped, will have the requisite virtues—among the chief of which is impartiality or disinterestedness—to make them. Henry the Fifth’s caution to the Archbishop of Canterbury whose advice he is seeking on the justice of his going to war against France should be heeded by all those entrusted with the authority and power to make war: “And God forbid, my dear and faithful lord, / That you should fashion, wrest, or bow your / reading, / Or nicely charge your understanding soul / With

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opening titles miscreate, whose right / Suits not in native colors with the truth; / For God doth know how many now in health / Shall drop their blood in approbation / Of what your reverence shall incite us to.” 21 Probability of Success Related to the criterion of proportionality is that of the probability of success, of the likelihood of the war’s being won; those having the authority to declare war must have some assurance of victory in its prosecution. The rationale behind this requirement is prevention of the considerable harm and destruction that always comes in the wake of any war which, after all, might prove futile. Meeting this criterion requires that a cost-benefit calculation be done before war is declared to determine statistically and accurately the probability of success. However, given the radical unpredictability of war this is extremely difficult to do. Determining the probability of success in war raises the following question: Should a nation refrain from declaring war even if the cause is just because the chances of success are virtually nil? Finland defended itself (unsuccessfully) against Russia, an overwhelming foe, in the Winter War (1939-40), but Great Britain did so (successfully) against Germany in World War II against all the odds of success. Given what is at stake such as its sovereignty and the rights of its citizens when a nation is unfairly attacked, its taking up arms in its own defense is at least morally justified and practically warranted even though the chances of its success are low. There should be, according to Orend, “a presumption in favour of permitting some kind of armed response, even when the odds of military success (however defined) seem long.” 22 Absolute precision is impossible in estimating correctly the benefits and costs of war and the probability of its success. Yet this should not deter us from trying. Aristotle cautions that the same degree of precision and accuracy required in the natural sciences should not be insisted on in moral matters concerning human behavior. Incidentally, the criterion of probability of success is not recognized by international law since it is thought prejudicial against small, weak states. Necessity and Last Resort The sixth criterion to be applied in determining the justice of war is that if it might be averted through diplomacy and other pacific avenues, then by all means they should be tried. And if and only if these endeavors come to naught would war be justified by the “rule of last resort” as codified in the UN Charter. This criterion reflects the seriousness of war and the horrors it unleashes, of which Henry reminds his episcopal advisor as he continues his

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aforementioned caution: “For never two such kingdoms did contend / Without much fall of blood, whose guiltless drops / Are every one a woe, a sore complaint / ’Gainst him whose wrongs gives edge unto the / swords / That makes such waste in brief mortality.” 23 However, Walzer cautions that in theory at least there is no such thing as a predeterminable last resort; there is always the possibility of taking measures short of war that might be tried to preserve the peace such as diplomacy and economic sanctions. These are preferable to force in settling international disputes. But the pursuit of such measures to delay war and to provide time to determine whether war is really justified as the last resort can enable an aggressor nation to buy time to increase its strength and thus making it a more formidable foe whenever the time for war comes. Moreover, sanctions may violate a precept of jus in bello by harming innocent civilians rather than the political leadership and yet fail to achieve their goal. Saddam Hussein’s regime in Iraq, for example, survived twelve years in spite of sanctions. Orend qualifies the criterion of last resort as follows: “It seems much more plausible to contend not that war be the literal last resort—after all other imaginable means have been totally exhausted—but, rather, that states ought not to be hasty in their resort to force. There ought to be a strong presumption against the resort to force.” For Orend, the key question the criterion of last resort raises, and requires an affirmative answer to, is this: “is the proposed use of force reasonable, given the situation and the nature of the aggression?” 24 It is critical to consider each case of prospective war on its own merits. There is one final issue that needs to be noted before leaving this section on jus ad bellum, namely, whether in war a nation can have justice entirely on its side with none on the side of its adversary; alternatively, might there be some justice on both sides. In the Second World War there can be no doubt that justice was wholly on the side of the Allied Powers (though this judgment should be qualified by the fact that the Dragon’s teeth of that war were sown by the same Allied Powers at the Paris Peace Treaty of 1919 when draconian measures were imposed on Germany), but this was emphatically not the case in the First World War. The position that no side has a monopoly on justice in war presupposes the principle of comparative justice. Vitoria opposes this principle since, objectively considered, only one side can be just; the other mistakenly thinks it is. Walzer opposes it since the degree of justice on either side of a war cannot be quantified so as to make a reasonable assessment of the amount of comparative justice. Before declaring war in what it believes a just cause, a nation’s leaders should heed Oliver Cromwell’s caveat to the synod of the Church of Scotland on 3 August 1650, “I beseech you, in the bowels of Christ, think it possible you may be mistaken.” 25 It should be pointed out that the failure of a proposed war to meet just

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one of the above criteria of jus ad bellum renders it unjust—they constitute an all-or-none principle. JUS IN BELLO I come now to the second component of just war theory, namely, jus in bello. This establishes two sets of principles, viz., external and internal. The external principles govern a state’s conduct of war abroad, whereas the internal principle governs a state’s conduct of war at home. We shall now consider each kind of principle in turn and, as in the case of jus ad bellum, noting as we go problems of their interpretation and application. I shall begin with the external principles. Principle of Necessity One external principle, the principle of necessity, stipulates that “military forces should cause no more destruction than is strictly necessary to achieve their objectives.” 26 The principle of necessity, by the way, is the “military” form of the principle of proportionality operative after a war has begun, as distinct from its “political” form operative before its beginning, discussed above under the heading of jus ad bellum. Henry Sidgwick sums up this principle as follows: “It is clear that the aim of a moral combatant must be to disable his opponent, and force him to submission, but not to do him (1) any mischief which does not tend materially to this end [victory], nor (2) any mischief of which the conduciveness to the end is slight in comparison with the amount of the mischief.” 27 The principle of necessity stipulates both that “the amount of destruction permitted in pursuit of a military objective must be proportionate to the importance of the objective,” 28 and that only the military force sufficient to achieve accredited goals, the ultimate one being the securing of peace, should be used. Observing this stricture would disbar the use of weapons of mass destruction, e.g., nuclear, chemical, and biological weapons (some of which are already prohibited by international law and certain treaties) because their destructive effects would be all out of proportion to the achievement of acceptable goals, not to mention that these effects would include untold harm to civilians, thereby violating another precept of jus in bello. A case in point would be a nation’s retaliation for a wrong done to it by another nation. Suppose Egypt, for example, invades and annexes land belonging to Israel. Israel has the right to retaliate by pushing the Egyptians out and reclaiming that land, but no more. This would be a proportional response. But if Israel retaliated by launching a nuclear missile against Cairo and killing thousands, this military response would be completely disproportional. The principle of necessity is at bottom an application of the ancient principle of lex talionis

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(law of retaliation), i.e., an eye for an eye, tooth for a tooth, to the conduct of war. However, far from being a pretext for revenge, lex talionis is in fact a demand for limiting the retaliatory response such that the punishment is proportional to the offense. History, unfortunately, is replete with examples of the use of disproportionate force, a violation of the principle of necessity. Arguably the Allies’ fire-bombing of Dresden and the American atomic bombing of Nagasaki and Hiroshima qualify as examples of the use of disproportionate force, the catastrophic effects of which are part of the historical record. The rationale behind the principle of necessity is the prevention of slaughter and destruction on a mass scale that might in the end prove futile. Though on the face of it the principle of proportionality is unimpeachable, it does pose some problems. One problem is determining what exactly counts as a proportional use of force as opposed to a disproportional one. Proportion is an abstract mathematical concept that may be misapplied to the messy world of human behavior. Cases of the disproportional uses of force are more readily recognized as such than proportional ones. Here again Aristotle’s counsel about not demanding too much precision in these matters should be heeded. A problem with Sidgwick’s formulation of the principle of necessity is its implication that any “mischief” that does tend materially to the end of victory, and whose conduciveness to the end is high compared to the amount of mischief incurred, is morally acceptable. This is a crude utilitarian “the ends justify the means” formula. The only value acknowledged here is utility. As long as the mischief, which might include acts and weapons proscribed by international law, has utilitarian value then it is permissible. Walzer points out the flaw in this strictly utilitarian interpretation of proportionality: “With regard to the rules of war, utilitarianism lacks creative power. Beyond the minimal limits of ‘conduciveness’ and proportionality, it simply confirms our customs and conventions, whatever they are, or it suggests that they be overridden; but it does not provide us with customs and conventions. For that, we must turn again to a theory of rights.” 29 Noncombatant Immunity A second external principle of jus in bello is noncombatant immunity (discrimination) which mandates that “civilian life and property should not be subjected to military force: military force must be directed only at military objectives,” 30 i.e., armed combatants, together with their weapons and munitions and military installations. Vattel, it will be remembered, affirms this principle thusly: Women, children, feeble old men, and sick persons, come under the description of enemies; and we have certain rights over them, inasmuch as they belong to the nation with whom we are at war, and as, between nation and nation, all rights and pretensions affect the body of the society, together with

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all its members. But these are enemies who make no resistance; and consequently we have no right to maltreat their persons, or use any violence against them, much less to take away their lives.

Lackey distinguishes between two versions of the principle of noncombatant immunity, viz., the objective version and the subjective. On the objective version, if civilians are killed inadvertently in combat—the deaths in this case known euphemistically as “collateral damage”—then the principle is violated. On the subjective version, if and only if civilians are specifically targeted and intentionally killed is the principle violated as per Aquinas’ principle of double-effect. 31 To justify the subjective version of the principle of noncombatant immunity a distinction needs to be made between direct and indirect killing. In direct killing, civilian deaths are intended, but in indirect killing death is not intended (with attempts even made to avoid it) but a regrettable concomitant or byproduct of an action having another aim. Thus the direct killing of civilians is murder and prohibited, whereas their indirect killing is simply non-criminal manslaughter and so morally permissible. It should be noted that this distinction between direct and indirect killing is not sanctioned by criminal law. Whether in the commission of a crime I kill someone intentionally or accidentally I am still a murderer, and either way my victim’s right to life has been abrogated. So, why is indirect killing in combat morally acceptable but not in the execution of a crime? An answer has to do with who is deciding whether a homicide is intentional (direct) or not. A jury in a criminal case trying to determine the defendant’s guilt cannot know with certainty his real motives, whether he intended the victim’s death or not, because first the defendant’s state of mind prior to his action is a closed book to them and second they are coming in after the fact. By contrast, a soldier in the field can know perfectly well before he acts whether he intends the killing of civilians or not because his own state of mind before the proposed action is open to him; I have a privileged access to my own mental states and motives (though we may be deceived) that others cannot possibly have. The principle of noncombatant immunity raises the issue of the propriety of the state-sponsored assassination of noncombatant political leaders deemed either threats to their own people or other nations. Suitable candidates for assassination might be Syrian president, Bashar Hafez al-Assad, whose provoking a catastrophic civil war further destabilized the Middle East and whose crimes against humanity are legion, and the murderous North Korean dictator Kim Jong-un, whose sabre rattling with atomic weapons is of international concern. As a precedent, eleventh-century Muslim leader, alHasan ibn-al-Sabbah, founder of the Hashshashin Society, perfected the technique of selective killing of enemy leaders. Plans for actions of this kind are provided by the CIA’s manual on assassination. 32 Lutheran pastor and theo-

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logian, Dietrich Bonhoeffer justified the failed attempt to assassinate Hitler (not state sponsored). However, legal scholars in principle condemn the assassination of political officials since they are classed as nonmilitary personnel and so immune from attack. Furthermore, they, however hateful their policies are to some, are distinguishable from military personnel with respect to the nature of their actions: “The threatening character of the soldier’s activities is a matter of fact; the unjust or oppressive character of the official’s activities is a matter of political judgment.” 33 That it is a matter of political judgment is confirmed by the fact that some of his people might regard the political official as a tyrant, and so would approve of his assassination and exonerate the assassin, whereas others might regard him as a hero and so would disapprove of his assassination and condemn the assassin as a murderer. For example, even after the revelation of their crimes against humanity, some still excuse and continue to admire Joseph Stalin, Mao Zedong, and even Adolph Hitler. Most recently, the citizens of Syria have been divided over their opinions of Bashar al-Assad, some supporting and others opposing him. The principle of noncombatant immunity has as its complement the principle of combatant non-immunity, which allows that armed combatants are fair game in war. But why should this be so? One answer is killing an armed combatant is justified in self-defense, but this is not the case when that combatant does not shoot or threaten to shoot first. A broader justification is needed. One possibility is as follows: Citizens have the inalienable right to life and to live unmolested. However, upon voluntary enlistment or conscription personnel in the armed forces waive that right because of the requirements of their role as future combatants in defense of their homeland or in pursuit of some other just cause. As Walzer puts it, “soldiers as a class are set apart from the world of peaceful activity; they are trained to fight, provided with weapons, required to fight on command. No doubt, they do not always fight; nor is war their personal enterprise. But it is the enterprise of their class, and this fact radically distinguishes the individual soldier from the civilians he leaves behind.” 34 However, accepting the principle of combatant non-immunity raises other ticklish questions: Do combatants, upon enlistment or conscription in the armed forces, unconditionally relinquish their rights as civilians not to be attacked, even if they are unarmed or out of uniform as when they are on leave or off duty? Should they be exempt from attack under these circumstances? What of the status of those military personnel performing noncombatant duties, say, in the areas of transportation, administration, or medicine? Then there is the question of who counts as a combatant. This is particularly acute in combatting jihadist terrorists who wear no distinctive uniform nor fight under the aegis of any particular nation, and who fight as guerrillas for a period, only to blend back again into the civilian population.

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And what about soldiers involved in covert operations disguised as civilians? Or civilians who shield combatants? They may do so by choice, inadvertently, or under compulsion, but at the time there is no way of knowing their motives. Should these civilians be targeted when that is the only way to attack the combatants in their midst? How can presumably innocent civilians be exempt from attacks on the combatants themselves? The traditional distinction between combatant and civilian is necessarily blurred given the nature of modern warfare, and cases where the identification of legitimate targets for attack is rendered more difficult. Consider the case of Timothy McVeigh who perpetrated the 1995 Oklahoma City bombing. Now given that his intent to bomb had been known, would his civilian status at the time have exempted him from being targeted as a combatant engaged in a one-man war against the United States government, as opposed to a common criminal intent on mass murder? The answer would have determined whether it was appropriate to send in the army or the police to apprehend him. Suppose that the Allies in the Second World War had decided to bomb the Nazi death camps. Would, then, the train drivers transporting prisoners to Auschwitz and other concentration camps, or the employees of factories manufacturing Zyklon B gas, have been legitimate targets even though they were civilians? These civilians, like employees in factories making munitions, are engaged indirectly in a war and so are legitimate targets of force, but only when they are so engaged and not, say, at home. Walzer usefully distinguishes “between those who make what the soldiers need to fight and those who make what they need to live like all the rest of us.” Presumptively, then, “anyone or anything not demonstrably engaged in military supply or military activity is immune from direct attack.” 35 The presumption is that killing armed combatants, but not civilians, is justified because the former directly prosecute a war but not the latter. But this breaks down given that in democracies, at least, it is the civilian population that indirectly authorizes war which their political representatives then declare and the armed forces wage (perhaps reluctantly), which means that civilians are no less involved (though further removed) in the war effort than the military. The issue underlying these questions is the degree of the agents’ involvement, whether military or civilian, in the prosecution of a war, particularly if the agents are prosecuting an unjust war. Presumably, the closer agents are to actual involvement in military operations then the more eligible they are as legitimate targets of military attack. Walzer contends that if there is any doubt about someone’s combative status, then we should err on the side of caution and spare him or her from attack; the burden of proof is on the political or military authorities to show that he or she is indeed closely involved in combat before becoming legitimate targets.

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A less problematic corollary of the principle of noncombatant immunity is that even combatants, when they are not “engaged in harm” nor posing any lethal threat by actually fighting, as when they are off duty, on leave, or disabled by surrendering or capture, should be treated humanely according to the articles of the Geneva Conventions. Upon surrender as prisoners of war, they should enjoy what international law calls “benevolent quarantine,” 36 i.e., exclusion from any kind of abuse like torture or starvation. International Law A third external principle of jus in bello stipulates that combatants obey those international laws proscribing actions mala in se such as torturing prisoners of war; rape; genocide; treachery, e.g., disguising soldiers as Red Cross workers, forcing captured soldiers to fight against their own side; and deploying weapons whose effects are uncontrollable, viz., biological and chemical agents (which indeed are prohibited by many international treaties and covenants). Though not explicitly proscribed in international law, the use of nuclear weapons should by all means be avoided because of the incalculable harm they would wreak on civilian populations and the environment while being disproportionate to the pursuit and realization of any just cause. This principle enjoins military personnel in all ranks and occupations to take full responsibility for their actions and consider carefully their consequences— ignorance of them does not excuse culpability. This may require disobeying immoral commands, e.g., an order to shoot innocent civilians. Reprisals A fourth external principle of jus in bello, related to the above, normally prohibits reprisals, though allowing them under certain restrictive conditions. Reprisals are problematic from the start because the maxim behind them “legitimates actions otherwise criminal, if those actions are undertaken in response to crimes previously committed by the enemy.” 37 Reprisals may occur during war or times of peace. During war they may take one of two forms: One is a disproportionate retaliation against a civilian population for a perceived wrong motivated by revenge and deterrence. An egregious example of such reprisals is when the German army massacred all males over the ages of sixteen in Lidice and Lezaky, and destroyed those villages, as reprisal for the assassination in 1942 by Czech patriots of Reinhard Heydrich, Hitler’s appointee as Deputy Reich Protector of BohemiaMoravia. A second form of reprisal in time of war is selective retaliation against an enemy for violating a tenet of jus in bello—an exercise in quid pro quo—in order to bring the former to book and induce it to conform to jus in bello.

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Reprisals may occur in a time of peace, but in retaliation for a violation of a precept of jus ad bellum. An example of such is when a belligerent nation, without an official and public declaration of war, raids another without just cause. Walzer distinguishes between wartime and peacetime reprisals as follows: “What is at issue [in wartime reprisals] is the mode or means of attack. In the case of peacetime reprisals, what is at issue is the attack itself. It has come from across the border: a raid of one sort or another. The victim state responds with a second raid, which isn’t aimed at re-affirming the rules of war but at re-establishing the broken peace.” 38 The responsive second raid is justified as self-defense. The essential difference between reprisals during war and those during peace is this: The occasion for wartime reprisals is a violation of jus in bello for peacetime reprisals a violation of jus ad bellum. However, the distinction between wartime and peacetime reprisals is somewhat tenuous at best. As Walzer points out, “peacetime reprisals” is something of a misnomer insofar eras of perfect and universal peace, such as those reputedly of the Pax Romana and Pax Britannica, are rare if not nonexistent since even those peaceful periods were at best only relatively so. And most recently, the relatively peaceful period from the end of the Second World War in 1945 to the collapse of the Soviet Union in 1991 was marred by the Cold War. Peacetime reprisals characteristically mark “periods of insurgency, border strife, cease-fire, and armistice” 39 and of international terrorism. The relation between those who occasion reprisals and those who carry them out might be asymmetrical. The objects of reprisal, typically terrorists and guerillas, are not always sponsored by official state or military authorities, though they may be condoned or even patronized by them, but those who execute reprisals are typically such authorities. Walzer remarks that these peacetime reprisals, though they do not necessarily engender peace, are the necessary and appropriate response to illegitimate attacks, that is, they are self-defensive acts authorized by jus ad bellum. The legitimate targets of reprisals are the attackers, yet reprisals against them might be tricky. If they are terrorists or guerrillas they are roaming targets who can easily blend in with a native population and are so not easy to pin down. Trickier still, they might inhabit the territory of some sovereign state which means reprisals against them would seem to infringe on its sovereignty. This is an especially critical concern when reprisals are undertaken against terrorists who operate from a state that is the ally of the state undertaking them. In the twenty-first century, the government of Pakistan, an ally of the United States, harbored terrorists like Osama Bin Laden, and perhaps even colluded with them. Related to this issue of reprisals against terrorist groups is the question of whether any of them—ISIS, for example—qualifies as a state. Thus ISIS, at least, aspires to create an Islamic state, or caliphate, spanning the Middle East. But what constitutes a state? On Weber’s definition, if you recall from

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an earlier chapter, a state is “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” The key word here is “legitimate” which means authorized by the larger populace. Now if ISIS were able to claim the monopoly of the legitimate use of physical force within a territory, then, according to Weber, it would have created a bona fide state; however, if its use of force is illegitimate, then it has failed to do so. This is perhaps why, when ISIS was on the ascendant territorially, that newscasters referred to it as the “so-called” Islamic State, thereby denying their legitimacy in the use of physical force. Statehood, then, does not depend on geography or even ideology, but on the ability to monopolize and legitimately project physical force. I turn now to the internal principle of jus in bello concerned with how the state should treat its own citizens in time of war. The internal principle is that despite the exigencies of war, the state must uphold the human and civil rights of its people to the best of its ability as codified in the Second Amendment to the Geneva Convention of 1977. According to this Amendment and the “Paris Minimum Standards,” citizens of any country have certain indefeasible rights among which are those core rights enabling a person to live a minimally good life, viz., “personal security, material subsistence; personal liberty, elemental equality; and social recognition.” These rights, according to Orend, form “an interlocking whole” such that if but one is violated all are: “Human rights form a coherent, non-hierarchical whole where each of them is needed as a component of what it means to live a minimally good or decent life in the modern world. Without their satisfaction, no one has reason to sign on to the social contract constitutive of political order in the first place.” 40 The Right of Neutrality Belonging to jus in bello is the right of neutrality which protects neutral nations from foreign invasion and occupancy in time of war. As defined by Walzer, “neutrality is a collective and voluntary form of noncombatancy. It is collective in that its benefits obtain for all the members of a political community without reference to the status of individuals.” 41 Nations have a right of neutrality which belongs to their sovereignty; and if they abstain from a conflict between other powers they have neutral rights. A nation claiming neutral rights has correlative obligations which, if not met, forfeits these rights. Neutrality, for Walzer, requires “a strict impartiality toward the belligerents, without reference to the justice of their cause or to any sentiments of neighborliness, cultural affinity, or ideological agreement. It is not only fighting on one or another side that is prohibited, but every sort of official discrimination.” 42 On the other hand, belligerents have the reciprocal obligation to honor the neutral rights of nations claiming them by both refraining from military attacks and other violations of neutrality.

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JUS POST BELLUM Jus post bellum concerns the return to peace after the cessation of hostilities, particularly the responsibilities of the victors to the vanquished. Achieving a just peace is no less crucial than waging a just war. Orend has noted that there is little in the way of international law applicable here, excepting the laws regarding occupation and treaties protecting human rights; moreover, jus post bellum has not received the attention of just war theorists that it deserves. To make way for peace after war requires a clear idea as to the purpose of war. For Clausewitz it is nothing less than “to defeat the enemy,” 43 a view supported by “moral realists.” According to them, peace is the norm for nations and the return to peace as well as the preservation of human rights should be the goal of war. Walzer describes their position as follows: It is a feature of democratic or liberal culture that peace is conceived as a normative condition. Wars can only be fought, then, if some “universal moral principle” requires it: the preservation of peace, the survival of democracy, and so on. And once war begins, this principle must be vindicated absolutely; nothing less than total victory will justify the resort to the “evil instrument” of military force. The threat to peace or democracy must be completely destroyed. 44

Note that this reaffirms jus ad bellum, but with the rider that the justice of war demands and justifies the resort to maximum force—achieving anything less than total victory and unconditional surrender of the enemy is to betray the cause of justice. Woodrow Wilson acted as a moral realist in declaring war on Germany during the First World War so as to “make the world safe for democracy,” as did the Allies to justify their demand for unconditional surrender during the Second World War. Moral realism, however high minded, is open to Walzer’s criticism though. His criticism of moral realism regarding the purpose of war is that it sets goals impossible to reach and in pursuit of which combatants die unnecessarily. Making the world safe for democracy or eliminating evil is a laudable enough goal, but impossible of realization. The demand for unconditional surrender is unrealistic and inconsistent. International relations, and human relations in general, insofar as they involve contractual arrangements, necessarily operate according to terms or conditions. Walzer points out, “There is really no such thing (in the moral world) as the unconditional surrender of a nation, for conditions inhere in the very idea of international relations, as they do in the idea of human relations.” The demand for unconditional surrender is punitive in intent and effect. War, then, should have the more moderate purpose of strengthening the peace that obtained before it which means, among other things, greater security for nation states, their decreased

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vulnerability to the territorial designs of hostile states, and increased safety for their citizens and their self-determination. 45 A nation wronged by another nation has the right and duty to right that wrong through military force and eventual victory; but does it have the right to demand more? In civil law, if a party is wronged by another, then the wronged party has the right to compensation for that wrong. In addition, the party wronged has the right not only to compensation for loss resulting from the wrong, but also to damages. Analogically, then, a nation’s retaliation against another for a wrong has the right not only to the restoration of the status quo ante but also to additional benefits or damages. However, the analogy breaks down. In a civil case, the party paying damages is liable and legally bound to pay. But in the aftermath of war, the majority of citizens in a defeated nation on the unjust side may not have been parties to the conflict and so are not liable, and consequently should not have to bear the burden of ruinous reparations, as were imposed upon the Germans by the Paris Peace of 1919 closing the First World War. Orend proposes the following principles of a putative jus post bellum: (1) The peace settlement should be moderate and rational, and made public. Revenge, an indication that the war has not ended for practical purposes, is proscribed, and as a rule unconditional surrender should not be demanded. The demand for unconditional surrender may protract the war because it would offer no incentive for surrendering and might be understood to derogate from the dignity of the conquered people. Japan, by resisting the American demand for unconditional surrender in the Second World War, forced the American hand into dropping atomic bombs on Nagasaki and Hiroshima. Had the Americans been satisfied with a conditional surrender, the war might have been shortened and the catastrophic bombing of those cities avoided. On the other hand, though, a policy of unconditional surrender known beforehand might deter an aggressive nation from going to war against a nation committed to that policy. The Paris Peace Treaty concluding the First World War was anything but moderate and rational, and its dire consequences are a matter of history. This demand for moderation in the restoration of peace is yet another application of the principle of proportionality discussed above in connection with jus ad bellum and jus in bello. (2) Basic human rights, their violation occasioning war in the first place, or their loss in its prosecution, must be restored. These rights, as described in the UN Charter of Rights and the U.S. Bill of Rights, include the vanquished nation’s entitlement to its own territory and sovereignty. (3) According to the principle of discrimination, those involved in negotiating a just peace settlement ought to distinguish between the political and military personnel on the one hand (those who actually declared and waged war) and, on the other, the civilians (many of whom were innocent bystanders or dragooned to participate in the war) of a conquered nation. This dis-

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tinction is important in determining where the responsibility for an unjust war lies and imputing guilt for possible war crimes. Justice demands an accounting, a determination of who was responsible for an aggressive war and punishing them: “There can be no justice in war if there are not, ultimately, responsible men and women.” 46 (4) According to the principle of proportionality, the political leaders of a defeated regime that has engaged in acts of aggression and egregious violations of human rights must receive proportionate penalties as prescribed by international courts of justice. The same is true for military personnel, from either side, who commit war crimes. (5) The defeated nation, if the aggressor, ought to make financial restitution and other reparations for the material costs incurred by the war. However, this must be in accordance with the above principles of proportionality and discrimination, and without bankrupting the defeated nation. Note that this stipulation was not observed at the Paris Peace Treaty closing the First World War, to later disastrous effect. (6) The opportunity provided by peace for the rehabilitation of the flawed political and social institutions of the vanquished aggressor nation, which somehow may have caused its aggression, ought to be taken. However, reforms must be proportioned to the level of injustice and dysfunctionality of the defeated regime. These reforms may involve disarmament, the re-training of the police and judiciary, massive education of the populace in human rights, and a fundamental political reconstruction that promises to lead to a just society under a legitimate government. Orend, though, considers rehabilitation the most problematic part of jus post bellum. It raises the question of whether such post-war rehabilitation of a nation, or “coercive regime change” as is now called, can ever be morally justified, or whether it is the “might-makes-right” prerogative of the victor. Orend answers that it is morally justifiable if the following conditions are met: (1) The war against the defeated nation was just and fought in conformity with the standards of jus in bello; (2) the political regime of the defeated nation was illegitimate and thus lacked sovereignty; (3) the modest aim of the proposed reforms is “a minimally just regime”; (4) during the political and social reformation of the defeated nation, the principles of jus in bello are honored. The rehabilitation of a regime conducted along these lines would be justified because: (a) human rights are respected; (b) it bodes well for the perpetuation of peace; (c) the post-war period is a propitious time for undertaking reforms. Two spectacular examples of not only morally justified but also highly successful rehabilitations of defeated nations was that of Germany through the Marshall Plan (the European Recovery Program or ERP) after the Second World War and the Occupation and Reconstruction of Japan (1945–52).

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In the effort to rehabilitate a nation, however, care should be taken not to forcibly impose an alien political culture on a nation that neither understands nor desires it and in which it cannot take root. Such are was not taken in the American attempt to impose a liberal democracy on post-war Iraq. The policy of coercive regime change there has not been met with conspicuous success, and however benign its intentions it has been opposed by some Iraqis as being imperialistic or as showing favoritism toward certain ethnic, religious, or political groups within the country. Implementing a program of jus post bellum of the sort proposed by Orend to ensure a just peace raises the following question: Does the victorious nation alone have the moral prerogative to decide what pacific actions are in accord with the requirements of an adequate program of jus post bellum? Or should a neutral third party, either another nation or an international commission of some sort, be brought in to oversee the negotiation and enactment of the terms of a just peace? Certainly a disinterested third party would help ensure that the terms of the jus post bellum are strictly observed and help reduce the chances of the victor’s avenging the vanquished. Related to the establishment of peace after war is how a civilian population should behave toward its occupiers during war, especially in the case of its government’s surrender to an aggressive foreign power such as France’s surrender to Germany in the Second World War. France was out of the war, but the Allies fought on. Surrender is a social contract where the surrendering government pledges to stop fighting in exchange for peace. Citizens are forbidden to attack the occupying forces. Those who do so commit what is known as “war treason” which, as “a breaking of political faith,” 47 is a capital offense. An example of this is when a platoon of German soldiers was ambushed by members of the French Resistance. The German captain Helmut Tausend relates this incident in the documentary film, The Sorrow and the Pity: They passed a group of young men, French peasants, or so it seemed, digging potatoes. But these were not in fact peasants; they were members of the Resistance. As the Germans marched by, the “peasants” dropped their shovels. Picked up guns hidden in the field, and opened fire. Fourteen of the soldiers were hit. Years later, their captain was still indignant. “You call that ‘partisan’ resistance? I don’t. Partisans for me are men that can be identified, men who wear a special armband or a cap, something with which to recognize them. What happened in that potato field was murder. 48

If those partisans had been subsequently captured by the German authorities, they would have been summarily executed—and with legal justification. However, partisans are not ordinary criminals. They may think of their government’s surrender, in which they had no say, as shameful, and be motivated by nothing less than patriotism and the desire to secure again their

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right to political self-determination, hardly a criminal intent. If citizens of a defeated nation still have a right to fight on for a just cause, then their government’s surrender means little or nothing. And, if they continue to fight, the contract represented by the terms of surrender is rendered null and void, and the occupying power has no recourse but to return to its combatant role. Here is a dilemma: On the one hand, if citizens violently oppose the occupying forces, then they violate the legal contract of surrender; but, if they do not, then they renege on their moral duty to defend the autonomy of their nation and forfeit their right to self-determination. The way out of this dilemma, I think, is by appealing to the distinction between legal and moral obligations. The citizens’ duty to comply with the terms of surrender is a legal obligation, but their duty to preserve their nation’s independence and other political ideals is a moral obligation. Now a moral obligation always trumps a legal one if the latter violates or conflicts with the former. Partisan resistance might be authorized by the principle of civil disobedience, a longstanding moral prerogative, but with a legal sanction attached. This distinction lies behind Walzer’s somewhat paradoxical judgment on armed resistance to forces of occupation: “resistance is legitimate [as a moral obligation], and the punishment of resistance is legitimate [as a legal obligation].” 49 There has recently emerged a conception of justice that has a bearing on jus post bellum, and that is transitional justice. This is a relatively new area of anthropological and multidisciplinary study and practice having to do with the ways society reacts to genocide and other crimes against humanity by seeking to strip away the impunity of and punish perpetrators of injustice, such as those guilty of violating human rights, and to make restitution to their victims. Transitional justice was abetted and informed by three signal events after the Second World War. One was the establishment of the International Military Tribunal at Nuremberg (1945) which held the Nuremberg trials, and of the International Military Tribunal for the Far East (1946) which conducted the Tokyo War Crimes Trials. These tribunals were particularly significant in two respects: One was their application of international law to individuals, in contrast to states; the other was their affirmation of the supremacy of international law over national laws (a nod to natural law), thereby infringing on the right of national sovereignty. The second event was the emergence of a body of international law governing human rights augmenting the preexistent laws laid down in The Hague and Geneva Convention, such as the United Nations’ Declaration of Human Rights, and the formation of organizations like Amnesty International and Human Rights Watch dedicated to the promulgation and protection of human rights. The third event was the transition during the 1980s from despotism to democracy in several African and South American countries and the democratization of the Eastern European coun-

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tries formerly in the Soviet bloc. These three events occurred against the backdrop of the end of the Cold War with its promise of a “new world order” where human rights would be more universally honored and democratic regimes would proliferate. As its qualifying adjective suggests, transitional justice has to do with the passage of a state from a despotic past when human rights were abrogated to a democratic future when these rights would be honored. Accordingly, Alexander Laban Hinton defines it as: The process of addressing past wrongs committed in states shifting from a violent, authoritarian past toward a more liberal, democratic future—though more recently the term has been defined in a broader manner (for example, a more general “response to systematic or widespread violations of human rights”) and extended to encompass a larger set of outcomes, such as advancing development and social justice. 50

A distinctive focus of transitional justice is, as Hinton points out, “local justice,” which is “concerned with the ways in which justice is experienced, perceived, conceptualized, transacted, and produced in various localities, ranging from village-level interactions between former victims and perpetrators, to offices of nongovernmental organizations, to the court-rooms of international tribunals.” This contrasts with justice conceived of abstractly as a set of transcendent and universal principles, as it is in international law, to be applied indifferently to particular communities, a legacy of natural law. Hitherto international justice has been thought of in terms of normative abstractions like the rule of law and due process to the neglect of how it is enacted on the ground at the local level. As Hinton notes, there is often friction between justice as conceived universally and abstractly and justice as conceived locally and concretely, i.e., “the dynamic intersection of a varying combination of local, regional, national, transnational, and global processes in particular contexts.” 51 Measures sanctioned by transitional justice aimed at reconciling formerly competing factions and meting out a measure of justice to both the violators of human rights and their victims are tribunals, truth commissions, “lustrations,” i.e., administratively purging leaders of the previous regime, memorializations, reparations, and amnesties. Such measures were taken by the newly emergent democracies in Africa in order to come to terms with their autocratic and repressive pasts, as did South Africa with its Truth and Reconciliation Commission. Transitional justice, though, applies not only to the rehabilitation of countries previously burdened by oppressive and undemocratic regimes but also to the pacification of aggressor nations defeated in war, thereby making it a component of jus post bellum. Further research in this area should open up new possibilities for the exacting of justice after war.

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NOTES 1. Brian Orend, The Morality of War (Peterborough, ON: Broadview Press, 2006), 106. 2. Article 1, Convention (III) relative to the Opening of Hostilities. The Hague, 18 October 1907, in Treaties, States Parties and Commentaries, International Committee of the Red Cross, https://ihl-databases.icrc.org/ihl/a/b59c84b75bfb1520c125641e0037aa5a 3. Orend, Morality of War, 34. 4. “In the next place, nations which are still barbarous have not got beyond the period during which it is likely to be for their benefit that they should be conquered and held in subjection by foreigners.” From John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical, vol. 3 (New York, 1874), 252–53. 5. Orend, Morality of War, 71, 76, 37. 6. “Definition of Aggression,” United Nations General Assembly Resolution 3314 (XXIX), in University of Minnesota Human Rights Library, http://hrlibrary.umn.edu/instree/ GAres3314.html. 7. Douglas P. Lackey, The Ethics of War and Peace (Englewood Cliffs, NJ: Prentice Hall, 1989), 35. 8. Orend, Morality of War, 34. 9. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, Inc., Publishers, 1977), 61, 72. 10. Ibid., 58, 121. 11. John Locke, Two Treatises of Government and A Letter Concerning Toleration, Ian Shapiro, ed., Rethinking the Western Tradition (New Haven: Yale University Press, 2003), 179. 12. Orend, Morality of War, 49. 13. As cited ibid., 46. 14. This form of the principle needs to be distinguished from the proportionality between the goals of war and the means to achieving them, which belongs to jus in bello discussed below. 15. Lackey, Ethics of War and Peace, 40. 16. Note that this presupposes a normative judgment about the value of liberty or some other right. Though such a judgment can be (and has been) made by individuals, it is questionable whether a collectivity such as a nation’s citizenry could agree to make it. 17. Lackey, Ethics of War and Peace, 40. 18. Ibid., 41. 19. Orend, Morality of War, 60. 20. Ibid., 60–61. 21. William Shakespeare, Henry the Fifth, in The Complete Works of Shakespeare, ed. David Bevington, 4th ed. (New York: Longman, 1997), 1.2.13-20. References are to act, scene, and lines. 22. Orend, Morality of War, 59. 23. Shakespeare, Henry the Fifth, 1.2.24–28. References are to act, scene, and lines. 24. Orend, Morality of War, 58. 25. Thomas Carlyle, ed., Oliver Cromwell’s Letters and Speeches (New York: Harper & Brothers, Publishers, 1859), 1: 448. 26. Lackey, Ethics of War and Peace, 59. 27. Henry Sidgwick, The Elements of Politics, 2nd ed. (London: Macmillan and Co., 1897), 267. 28. Lackey, Ethics of War and Peace, 59. 29. Walzer, Just and Unjust Wars, 133. 30. Lackey, Ethics of War and Peace, 59. 31. The earlier Hague Convention favors the objective version, whereas the later Geneva Convention, according to the Second Protocol of 1977, favors the subjective version. 32. Richard Belfield, The Assassination Business: A History of State-Sponsored Murder (New York: Carroll and Graf Publishers, 2005). 33. Walzer, Just and Unjust Wars, 200.

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34. Ibid., 144. 35. Orend, Morality of War, 114. 36. Ibid., 110. 37. Walzer, Just and Unjust Wars, 207. 38. Ibid., 216. 39. Ibid. 40. Orend, Morality of War, 129, 130. 41. Walzer, Just and Unjust Wars, 234. 42. Ibid., 234–35. 43. Clausewitz, Carl von. War, Politics and Power, ed. and trans. Michael Howard and Peter Paret (Princeton, NJ: Princeton University Press, 1976), 595. 44. Walzer, Just and Unjust Wars, 111. 45. Ibid., 112, 121–22. 46. Ibid., 288. 47. Ibid., 177. 48. Marcel Ophuls, The Sorrow and the Pity; quoted in Walzer, Just and Unjust Wars, 176. 49. Walzer, Just and Unjust Wars, 178. 50. Alexander Laban Hinton, ed., Transitional Justice: Global Mechanisms and Local Realities after Genocide and Mass Violence (New Brunswick, NJ: Rutgers University Press, 2010), 2. 51. Ibid. 1, 2.

Chapter Twelve

Ethical Foundations of Just War Theory with Attendant Moral Issues

This chapter has two purposes. One is to demonstrate that in its historical development just war theory is founded in normative ethical theory, in particular the correlative theories of natural law and of rights, and from which it derives its validity and obligatoriness. In some cases, its principles are directly derived from ethical theory; in others, they may merely reflect or are at least consistent with it. Whatever the case, though, its principles may be justified by ethical theory. The justice of war is manifestly an expression of ethical theory and its practical application to matters of war and peace. Indeed, their very names, viz., “justice” of war or “just” war theory, bear the imprint of their foundation in ethics since justice as a virtue is an ethical concept and for Aristotle the pre-eminent virtue. Much is at stake here. If an ethical foundation for the justice of war is found wanting for some reason or another, either because it is not demonstrable, or because of defects within or conflicts between the various ethical theories, then the justice of war becomes unstable and its claims on us untenable, and the advocates of realpolitik win the day—either moral realism 1 or political realism is true, but not both. On the other hand, if the justice of war has a demonstrable ethical foundation, then this is vindication enough, I think, of its authoritativeness and validity. The burden of proof rests on political realists intent on denying the validity of just war theory, against moral realists, to demonstrate that there is none for any ethical theory either. When all is said and done, though, there is a moral paradox at the heart of just war theory, particularly the jus ad bellum and jus in bello, namely, that it permits doing evil so as to minimize evil. Michael Walzer identifies what he calls its “dualism,” which goes some way in resolving this paradox: “It is a crime to commit aggression, but aggressive war is a rule-governed activity. It is right to resist aggression, but 177

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the resistance is subject to moral (and legal) restraint. The dualism of jus ad bellum and jus in bello is at the heart of all that is most problematic in the moral reality of war.” 2 This chapter’s second purpose is to frame the moral issues raised by each component of just war theory and to attempt to resolve them, their resolution in part depending on what ethical theory is appealed to. Moral issues are distinguished from other kinds of issue according to how they are resolved. Empirical issues are settled by consulting the relevant facts. Verbal issues are decided by clarifying the meaning of the terms in which they are couched. Legal issues are determined by invoking the relevant law. Moral issues are resolved by appealing to normative ethical theories. The easiest to resolve are empirical issues which require only the adducing of facts for their resolution. The next easiest are verbal issues requiring only reference to a lexicon for their decision. The hardest to resolve, and sometimes intractable, are moral issues because the ethical theories appealed to for their resolution involve our deeply-held values expressive of our innermost sentiments which makes them particularly tendentious and contentious. As Plato has Socrates say in Euthyphro: Then what sorts of questions would make us angry and hostile towards one another, if we differed about them and were unable to reach a decision? Perhaps you can’t say offhand. But consider my suggestion, that they are questions of what is just and unjust, honourable and dishonourable, good and bad. Aren’t those the matters on which our disagreement and our inability to reach a satisfactory decision occasionally make enemies of us, of you and me, and of people in general?

Moreover, continues Socrates in his conversation with Euthyphro, not just human beings but even the gods differ over such questions, “And what about the gods, Euthyphro? If they really do differ, mustn’t they differ about those same things?” 3 Little wonder, then, that our differences over moral matters elude our resolution. Resolutions of moral issues may be attempted by an appeal to ethical theory, with the nature of the resolution depending on the ethical theory appealed to. The result might be contrary resolutions reflecting the incompatibility of the ethical theories to which appeal is made, thereby making a definitive resolution impossible. Our choice of resolutions depends on which ethical theory we prefer, which is determined beforehand by subjective and nonrational factors in our psychological makeup. Agreement among all the ethical theories on the resolution of a moral issue makes that resolution decisive. Aquinas lays down as the first and foremost precept of natural law “that good is to be done and promoted, and evil is to be avoided,” the fundamental precept, whether explicitly stated or not, of all theories of natural law. This

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broad ethical principle informs all normative ethical theories, though they differ over what the good is that is to be done. For Aristotle it is the promotion of the happiness of individuals; for Mill it is the perpetuation of public well-being; and for Kant it is the exercise of the moral will. This principle informs all the components of just war theory; it is the fundamental root and ultimate justification for all their precepts whether they originate in, reflect, or are consistent with it. JUS AD BELLUM Ethical Foundation One criterion of jus ad bellum is the justice of its cause. An indisputably just cause of war, upon which all just war theorists are agreed, is a nation’s selfdefense, the defense of its territory and its people—in a word, its sovereignty. This is a nation’s right, and an obligation it owes its citizens. A nation’s right to defend itself against foreign aggression is simply an extension of the individual’s right to defend him- or herself from harm. This right of individuals issues directly from natural law in all its forms and from whence it receives its justification. According to Aquinas, “whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law”; and similarly for Grotius, “‘tis the first Duty of every one to preserve himself in his natural State.” Hobbes affirms that this right of self-preservation is “the sum of the right of Nature, which is, ‘by all means we can, to defend ourselves’”; moreover, the “fundamental law of nature being the preservation of mankind,” according to Locke, “no human sanction can be good or valid against it.” Self-preservation, then, is an irrefragable right, a dictate of natural law. The other ethical theories of utilitarianism and deontologism, though not the source of a nation’s right of self-defense as dictated by jus ad bellum, may be appealed to in its vindication. Thus a utilitarian would point out the unquestionable benefits accruing to a society that defended itself successfully against aggression, and a deontologist could affirm with Kant the perfect duty of self-preservation, whether of persons or nations. However, it is not only a nation’s defense of its right of sovereignty that is a just cause of war but also, more generally, the defense of people’s rights, which is implied in a nation’s right of sovereignty. It is also for Brian Orend, “the violent violation of human rights”; and according to Michael Walzer, “the arguments we make about war are most fully understood . . . as efforts to recognize and respect the rights of individual and associated men and women,” and “the defense of rights is a reason for fighting. . . . that it is the only reason.” As shown in an earlier chapter, ample reasons (though none is decisive) may be given in justification of a nation’s and an individual’s

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having rights, whether from their origins in natural law, our common humanity, or the human community. A second criterion of the justice of war is its public declaration by a competent authority, a governmental figure authorized to declare war on behalf of the nation. That it be publically declared is morally justified on both deontological and utilitarian grounds. Its deontological justification is that the maxim behind allowing unauthorized or unpublicized declarations of war could not be rationally universalized. Its utilitarian justification is that a public declaration of war might induce a threatening aggressor to cease hostilities, and that permitting one lacking the competence to declare war would probably have the direst consequences. A third criterion is a government’s having the right intention in declaring war. In morally justifying this an appeal may be made to Kant’s deontological ethics, particularly its stipulation that the moral worth of an action depends on the purity of it motive, namely, respect for the moral law. Citizens’ knowing that their government had the right intention in its declaration of war would give them confidence in the rightness of their nation’s cause, thereby boosting their morale, and, if the war turned out badly, they would be less likely to recriminate their government—though this is a consequence that Kant would not consider, but a utilitarian would. A fourth criterion of just war theory is proportionality, the principle that the benefits proportionally outweigh the harm redounding to the nation in prosecuting a war. The most obvious moral justification of proportionality is utilitarianism to which its cost/benefit calculation of the consequences of war is consistent; though further justification may be found in Aristotle’s aretaic ethics, particularly his definition of “virtue” as the midpoint between the extremes of deficiency and excess, a matter of proportion. Finally, the sixth criterion is that war must be absolutely the last resort, a demand of natural law. Hobbes speaks for other just war theorists in stating: It is a precept or general rule of reason “that every man ought to endeavour peace as far as he has hope of obtaining it, and, when he cannot obtain it, that he may seek and use all helps and advantages of war.” The first branch of which rule containeth the first and fundamental law of Nature, which is, “to seek peace, and follow it.” The second, the sum of the right of Nature, which is, “by all means we can, to defend ourselves.”

The assumption here is that the nation contemplating war has the leisure to endeavor peace in the form of negotiation and diplomacy. However, once a nation is engaged in war, steps to prevent war obviously can no longer be taken, though overtures for peace may still be made. Jus ad bellum applies only before hostilities occur, but with jus in bello applying thereafter. And, of course, this criterion can be justified from the standpoints of both utilitarian and deontological ethics: peace is certainly a condition of the public weal,

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and Kant’s proposal for peace in his Toward Perpetual Peace is informed by his uncompromising commitment to the moral law. Moral Issues Moral issues raised by jus ad bellum concern pre-emptive war; the personhood of nations; national sovereignty; and humanitarian intervention. These issues are related insofar as they revolve around sovereignty. I shall now consider each in turn. Pre-emptive Wars However, does a nation’s right to self-defense extend to the mere threat of an attack? In other words, does a nation have the right to take pre-emptive military action against another that is only perceived as a threat? Francis Bacon, like Grotius and Locke, thinks it has: “For there is no question, but a just fear of an imminent danger, though no blow is given, is a lawful cause of war.” 4 A “just fear,” though, must be in response to a palpable threat. A nation’s right to pre-emptively strike against an apparently threatening power is one kind of defense against aggression of which Orend distinguishes two kinds: one of which he designates the “descriptive” kind, where a nation waits to be attacked before counter-attacking; and the other he designates the “normative,” where, under very special circumstances (listed below), a nation is entitled to take the initiative in attacking. 5 A nation may be prompted to take normative pre-emptive action against another in the interests of either self-defense against an expected attack or of perpetuating the balance of power necessary for long-term peace and security. A nation’s right to preventive—or what Orend prefers to call for the sake of clarity “anticipatory”—measures against another is grounded in its right to self-defense against actual and even potential aggression. A threatening posture of one state toward another is itself a form of aggression insofar as it can disturb the peace of mind and sense of security a threatened populace has every right to enjoy. The United Nations Charter of 1945 expressly denies any such right to pre-emption; it prohibits the first use of force, specifically a pre-emptive strike in anticipation of a possible attack. The only defense permissible is against an actual attack. Vitoria opposed such pre-emptive action on moral grounds since it would be tantamount to punishing one for an offense as yet uncommitted, a rank injustice. There are also empirical and practical grounds for opposing it. First, pre-emptive strikes destabilize the international order. This was the case in August of 1914 when Great Britain declared war on Germany simply because of the perceived threat represented by Germany’s attack on Belgium. Belgium’s seaports were near the British coast, and under German control they would pose a threat to British trade. Second, a pre-

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emptive attack may set a dangerous precedent by emboldening other nations to act pre-emptively. Third, pre-emptive tactics may include “false flag operations” where a belligerent power (disguised as its enemy) stages an attack against itself in order to justify “retaliation.” An example of a false flag operation was the sinking of the Lusitania by a German U-boat, which Winston Churchill had planned to bring the United States into the First World War as an ally. And fourth, a pre-emptive strike, for Lackey, no longer has the violation of a right as its just cause, but something else which is not a just cause for war: If the use of force by nation A is justified on the grounds that its rights have been violated by nation B, then nation B must have already done something that has violated A’s rights. To argue that force is necessary in order to prevent a future rights violation by nation B is not to make an argument based on rights at all: it is a call to use force in order to make a better world—a very different sort of moral argument than the argument that a right has been violated, and one rejected by the mainstream tradition that defines just war as a response to a “wrong received.” 6

International law prohibits pre-emptive strikes, except those authorized in advance by the United Nations Security Council (UNSC). Orend tentatively supports the requirement of international authorization, e.g., the UNSC’s, for war in cases, other than national self-defense against actual aggression, where the perceived threat is doubtful, such as pre-emption: My overall view on international authorization of war is this: it is certainly not required in straightforward cases of defense (whether of self or others) from actual aggression: no UNSC fiat could overturn those pre-existing rights of people. In more contested cases—humanitarian intervention and especially anticipatory attack [pre-emptive strikes] involving regime change—the desirability of international authorization increases very considerably but might not even then, pending the details, strictly be required. 7

I would add this in support of that requirement. Seeking the UNSC’s authorization for war whose justice may be dubitable (other than self-defense or the defense of allies) has the following merits: First, any flaws in a nation’s case for going to war stand to be exposed by its taking counsel with other nations. Second, it delays the onset of military pre-emption, thereby allowing for further careful deliberation before a declaration of war is made, which is all to the good since in the meantime the foreign threat may be defused. Third, by seeking such international authorization for war a nation tacitly acknowledges the fact that it does not exist in isolation but is an integral part of a community of nations. Fourth, a nation’s doing so is consistent with its commitment to international law. And fifth, by undertaking a pre-emptive

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war with the UNSC’s authorization, a nation stands to win moral and material support from other nations sympathetic to its cause. A nation’s appealing to the authority of the UNSC for authorization to wage war is not, however, unobjectionable. For one thing, the process of appeal may take up precious time thus giving an advantage to the threatening power against whom pre-emption is contemplated. For another, the UNSC’s credibility in deciding issues of war and peace is open to doubt. Only five nations are members of the UNSC and, with one exception, are Western industrialized nations, and so are not representative of the UN’s whole membership. Moreover, its past record in authorizing wars has been a mixed bag with failures in Cyprus and Congo; the ineffectiveness of UN peacekeepers in Bosnia; its failure to intervene in the civil war in Rwanda of 1994. Finally, it can be argued that the authority and responsibility for declaring war ultimately rests with individual states which are the real locus of political sovereignty—the UN, after all, is simply their creation. However, as a general rule, a nation’s seeking the UNSC’s authorization before undertaking military pre-emption is on the whole desirable and to be observed. Walzer, as reported by Orend, makes a case for pre-emptive wars, but lays down the following stringent conditions for them to meet to be legitimate: (1) “a manifest intent to injure” on the part of the threatening nation as revealed in a long-standing history of antagonism between it and the nation threatened, or through a series of recent bellicose threats; moreover, the threatening state must be “a determined enemy” who has given evidence of its implacable intention to seriously harm its neighbor; (2) “a degree of active preparation” by the threatening nation “that makes the intent a positive danger” such as moving military personnel and materiel to the borders of the threatened state or engaging in war games close to its territory; (3) the situation of the threatened state must be one “in which waiting, or doing anything other than fighting, greatly magnifies the risk” 8 of an attack that, were it to come, would prove disastrous and threaten its very survival; (4) the imminence of the threatened attack. According to Walzer, a hostile power by meeting all four conditions has tacitly committed aggression against its neighbor and so is an eligible object of the latter’s pre-emption. By way of qualification, though, Walzer strenuously insists that preemption be exceptional, and the nation initiating it have substantial evidence that the above conditions have been fully met. A philosophical justification of the right to military preemption may be found in the Pragmatic theory of belief developed by the mathematician William K. Clifford and the philosophers Charles S. Peirce and William James. Lying behind intentions, of which they are expressions, are beliefs. A belief is the beginning of a potential action, the first step on the road to acting. Those who threaten harbor negative beliefs about the threatened which might coalesce as an intention and potentially issue in a future action,

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e.g., Iran’s belief that Israel doesn’t deserve to exist lies behind its threatening posture toward it. My conclusion is that there is a right of preemption subject, unless in exceptional cases, to the UNSC’s authorization and the other restrictions described above, the main support for which comes from natural law theory. The Personhood of Nations This is, properly speaking, less a moral than a metaphysical issue, though it is one that needs addressing for on its resolution that of other issues depends. Underlying it is the deeper issue of what makes a human person a person, a philosophical conundrum that continues to defy resolution, which is fundamental to debates over the legality and morality of abortion; however, this is an issue for neuroscience and the philosophy of mind and so does not need to detain us here. Does a nation qualify as a person, as Hobbes and Vattel thought? If so, in what sense is it a person? These questions are important in determining whether a nation has rights like the right of sovereignty since rights belong uniquely to persons, and whether a nation as a whole can be held accountable and punished for offenses like initiating an unjust war and committing war crimes and crimes against humanity. There are three theories as to the personhood of collectivities like nations, viz., the fiction theory, the aggregate theory, and the reality theory. The fiction theory, derived from the Roman conception of the person, is that “the personality of a corporate body is a pure fiction, and owes its existence to a creative act of the state.” 9 A nation, then, is a legal person. “Roman law recognized two types of organizations. One, governed by contract, a societas, was such that its assets were owned by the contractors. The other, a universitas, was a legal entity separate from its members, capable of holding property and of possessing distinct rights and obligations. Legal personhood was conferred on the universitas.” A legal person is anything that has a right: “A legal person may be described as any entity that is a subject of a right, or as any entity recognized in a legal system as supporting such capacities as instituting and defending judicial proceedings. Legal personality is always something conferred, it is never merely the result of the act or acts of parties.” 10 Such is the case with nations whose personhood, together with the attendant right of sovereignty, is conferred by international law. On the aggregate theory, the names of collectivities like nations are simply umbrella terms covering groups of human persons. Human persons have real existence independently of law, whereas “nations” have merely nominal existence as names for ease of reference. This is a nominalist conception of nations. 11

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Finally, according to the reality theory, collectivities like nations are sociological persons having real existence independently of law. This is a realist conception of nations. 12 Josiah Royce epitomizes the reality theory thus, “A community is not a mere collection of individuals. It is a sort of live unit that has organs, as the body of an individual has organs.” 13 As such a political community, or nation, is a virtual person having a mind of its own that manifests itself in its culture as constituted by language, customs, and religion. This theory presupposes that law cannot create what is subject to it but can only determine whether it conforms to its requirements. Reality theory, contra fiction theory, holds, according to French, “that the law does not invent its subjects, it recognizes their existence” as persons because they are functionally such: In simplest terms, to the realist, corporations are persons because, prelegally, they meet the basic function conditions of personhood applied to any entity seeking admission to the legal community. For the reality theorists, the fact that something is artificial or natural or some combination of artificial and natural is irrelevant to whether or not it is entitled to legal personhood status. What is relevant is what it is capable of doing before any legal powers are conveyed on it. What is crucial is whether an entity has certain capabilities and capacities, functions in certain ways and can be known to do so, and evidences identity or self-sameness over time. 14

Michael J. Kerlin describes the reality theory in the same terms as French: [The realist] asserts that extra-legal considerations regarding personhood should dominate the issue of whether any human ought to be treated as a legal person. The law’s task is to capture as its subjects the players actually involved in the social game. It does not create those players, though it attempts to regulate their play. . . . In simplest terms, to the realist, corporations are persons because pre-legally, they meet the basic conditions of personhood applied to any entity seeking admission to the legal community. 15

French defends the reality theory of collective (corporate) personhood by explaining why collectivities should be regarded as bona fide persons. Earlier he stated that “corporations can be full-fledged moral persons and have whatever privileges, rights and duties as are, in the normal course of affairs, accorded to moral persons.” 16 Later, though, he substituted “actor” for “person” for sake of clarity, though for him actors have all the same characteristics conventionally associated with human persons. Human persons are simply a kind of actor. Actors are the primary inhabitants of the moral community and so the proper subject of ethics. Membership in the moral community requires that something be an actor. “Actors,” for French, “are those entities that display a certain set of functional capacities as they perform on the social stage. There are at least three

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crucial capacities, starting with the ability to act intentionally . . . intentionality does not require human personhood.” “To say that something acts intentionally,” according to French, “is to say that it has purposes, plans, goals, and interests that motivate some of its behavior.” Some like Donald Davidson think that intentional actions are the result of desires and beliefs: “Desires, coupled with beliefs, cause intentional actions. If I have the desire to go to Hawaii and I believe that I have the means to do so, then I intend to make the trip.” However, if intentions are causally linked to desires and beliefs, then corporations cannot be said to have intentions since they are incapable of having mental states like desires and beliefs: “Obviously, corporations cannot, in any normal sense, desire and believe. If intentional action must reduce to desires and beliefs, then corporations will fail to make it as intentional actors.” For French, “Intention is a quite distinct state from a desirebelief complex, and I think the operative element of that state, planning, is typically found in corporate decision making.” The two other functional capacities, again not unique to human persons, are ratiocination, “the ability to make rational decisions and to consider rational arguments regarding their intentions, in particular arguments about the ways to realize their long- and short-term interests”; and moral adaptiveness, “actors must have the facility to respond to events and ethical criticism by altering intentions and patterns of behavior that are harmful (or offensive) to others or detrimental to their own interests.” 17 Now corporations, as do human persons, exemplify these capacities, as French explains below, hence qualifying them as actors. Intentionality can be attributed to corporations, according to French, because they operate within a Corporation’s Internal Decision (CID) Structure which is made up of humans who have intentions and decide to act on them. For French, “Corporate intentions are always reducible to human intentions” because they are vested in human beings. French analyzes a CID into the following components: (1) an hierarchical division of labor—“an organizational or responsibility flow chart that delineates stations and levels within the corporate power structure”; and (2) procedural rules—“corporate decision recognition rule(s) (usually embedded in something called ‘corporate policy’).” The CID structure is the organization of personnel for the purpose of exercising power and enacting intentions. In doing so, it draws on the expertise at different levels of the corporate hierarchy in making decisions. Thus, according to French, “When operative and properly activated, the CID Structure accomplishes a subordination and synthesis of the intentions and acts of various biological persons into a corporate decision. . . . A functioning CID Structure incorporates acts of biological persons.” 18 From this incorporation, there emerges a corporate person. French approvingly cites J. K. Galbraith as one who aptly expresses this conception of corporate personhood: “From this interpersonal exercise of power, the interaction and resulting purpose of the participants, comes the personality of the corporation.” 19

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This corporate person supervenes on the biological persons constitutive of the corporate body. Now for French it is not any collectivity that counts as a moral agent. To count as such, a collectivity must be a conglomerate as opposed to an aggregate. An aggregate is “merely a collection of people” Whereas a conglomerate is an “organization of individuals such that its identity is not exhausted by the conjunction of the identities of the persons in the organization.” 20 In other words, its identity is greater than the sum of the identities of its constituents. It is conglomerates alone that qualify as moral agents capable of intentional actions and may be held collectively responsible for them. Now what French says about corporations, one kind of collectivity, by way of demonstrating that they are bona fide agents can as well be said of nations, another kind of collectivity. A nation has the equivalent of a CID, though unlike a corporation’s it is constituted not by the entire membership of the collectivity but only by the members of its government (though if the government is chosen by a nation’s citizens then the nation’s CID has a wider constituency). As such, intentions can be imputed to nations, specifically to their governments, and especially so if those governments rule with the consent of the governed. In what sense, then, are nations persons, if at all? Are they legal persons as on the fiction theory; nominal persons as on the aggregate theory; or real persons as on the reality theory? French, as we have seen, makes the case for their being maximally moral persons (agents). However, Robert F. Gibson, Jr., gives two reasons for rejecting the reality theory of corporate personhood and, by extension, national personhood. One is that corporations cannot be penalized qua corporations for their crimes as can human persons, though their human constituents can. And even in attempts to penalize corporations, the penalty typically devolves on human persons, in some cases on those who are not blameworthy. Gibson accordingly cites John Danley: The corporation cannot be kicked, whipped, imprisoned, or hanged by the neck until dead. Only individuals of the corporation can be punished. What of punishment through the pocketbook, or extracting compensation for a corporate act? Here too, the corporation is not punished, and does not pay the compensation. Usually one punishes the stockholders who in the present corporate climate have virtually no control over corporate actions. Or, if the corporation can pass on the cost of a fiscal punishment or compensation, it is in the end the consumer who pays for the punishment or compensation. If severe enough, hitting the pocketbook may result in the reduction of workforce, again resting the burden on those least deserving, more precisely, on those not responsible at all. 21

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A second reason is corporations’ “lack of capacity to reciprocate morally. In other words, while it may very well be in a corporation’s self-interest to promote moral virtues such as honesty, truthfulness, and company loyalty in its employees, it is conceptually barred from nurturing such moral virtues itself.” Thus, The corporate manager who decides, for example, to spend more than the law or public pressure demands for cleaning up the environment, or who hires the hard-core unemployed when more productive workers could have been hired at the same wages, or who decides not to lay off long-time employees with low productivity figures—such a manager is making a personal decision, not a corporate decision. Such a decision is irrational from the corporation’s point of view. Furthermore, such a manager is not likely to be retained by the corporation, if found out. 22

However, two responses might be made to Gibson’s rejection of the reality theory of corporate personhood. One, with respect to the subject of penalties, is that a corporation as a whole could itself be penalized with massive fines for their crimes thereby forcing it into bankruptcy and possibly liquidation. A second response, with respect to moral reciprocation, is that those decisions such as “to spend more than the law or public pressure demands for cleaning up the environment, or who hires the hard-core unemployed when more productive workers could have been hired at the same wages, or who decides not to lay off long-time employees with low productivity figures” are not morally obligatory but simply morally supernumerary, that is, failure to make them does not entail moral culpability, but making them is morally estimable. Human persons who meet their moral obligations but fail to perform supernumerary acts like donating to charities are nonetheless deemed real persons. On the fiction theory, nations are minimally legal persons since international law has conferred on them the right of sovereignty. The difference between legal and moral personhood is that legal personhood depends on juridical fiat whereas moral personhood, being ontologically rooted, does not. On either the reality or the fiction theory, nations are more than nominal persons per the aggregate theory. And though there may be some doubt about the reality theory of national personhood, there can be no doubt about the fiction theory—their being legal persons is vouchsafed by international law. Indeed, when it comes to nations’ having the right of sovereignty it makes no difference as to whether they are real or legal persons; though it does make a difference as to whether that right is a moral or a legal right.

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National Sovereignty Related to the issue of the personhood of nations is that of their presumed right of sovereignty, which raises a pair of moral issues: One is whether nations should have that right at all. The second is which should take precedence, a nation’s right of sovereignty or the rights of its citizens if in conflict. In a way, that nations should have the right of sovereignty is beside the point for they do have it under international law. Given that they have that right, what kind of right is it, i.e., a moral or a legal right? It is unquestionably a legal right, but is it a moral right as well? The difference between them at its simplest is this: a legal right is one conferred by law and does not belong by right to the entity upon which it is conferred independently of law; a moral right is one not conferred by law (though it may be recognized by it) but belongs by right to the entity possessing it. To put their difference metaphysically, a legal right exists only juridically, i.e., by legislative fiat; whereas a moral right exists ontologically, i.e., it inheres in the very being of a thing having it. The distinction between a legal right and a moral right parallels the distinction between positive law and natural law, respectively. On the reality theory of national personhood, according to which nations are real persons, the right of sovereignty is a moral right depending on more than juridical fiat and comparable to the natural rights possessed by human persons. However, that nations indubitably have legal rights does not mean that they also have moral rights. Though international law confers on nations a legal right to sovereignty it cannot confer a moral right. A moral right is a natural right which exists independently of institutional mandates like those of law. Moreover, there is a distinction between the legal realm and the moral realm and the two do not always coincide; indeed, in some cases the law may be immoral. According to Lackey, only persons can have moral rights since they uniquely possess the capacity of making free choices and so can be held morally responsible for them, which collectivities like nations lack: “The possession of moral rights is logically connected to the possession of moral responsibilities, and moral responsibilities can be assigned only to entities capable of free choices. But only individual persons are capable of free choices; nations, which are aggregates of persons, do not possess consciousness, and ‘make choices’ only in a metaphorical sense.” 23 However, though nations lack consciousness, on French’s reality theory, according to which a nation’s personhood or agency is vested in its government, a nation as an agent is certainly capable of free choice and morally responsible for them. Whether nations have a moral right of sovereignty depends on their being agents, as French argues. As to the question as to whether nations should have a right of sovereignty, either moral or legal, at all. Darwin Kingsley, president of New York Life between 1907 and 1930, 24 strenuously opposes a nation’s right of sovereign-

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ty. Kingsley identifies the undue reverence for national sovereignty as the chief cause of war between nations jealous of their individual sovereignties and so posing a continuing threat to their citizens: “Sovereignty is to every citizen a menace as real as that of the vicissitudes of life, an enemy as certain and cruel in its average action as human mortality.” Even apparently wellintentioned treaties are vitiated by the signatories’ competing claims of sovereignty and so are often not worth the paper they are written on. Kingsley exposes the supposed moral principles underlying treaties like promise-keeping as little better than the “honor” which exists among bullies and thieves. They are necessarily interpreted by their makers and not by an impartial court, because there is no such court, and can be none under the existing doctrine of sovereignty. Kingsley blames the First World War on the idolatrous worship of “the god of unconditioned sovereignty”: “The statesmen of the world could not or did not rise above the provincialism of nationality. Remorselessly or blindly or stupidly—some will say deliberately—they drove the great machines of modern civilization into each other, head on.” For Kingsley, human rights take precedence over the national right of sovereignty with their protection as “the supreme purpose of civil society.” He expresses in Kantian terms the intrinsic value of human life for its own sake: “The thing of supreme value in this world is human life—not because it is stamped American or English or Russian or French, but because it is in itself the sum of all values, without which no other thing has any value.” 25 Now a nation should enjoy the right of sovereignty on the condition that its government is legitimate. But what makes a government legitimate? Hobbes maintains that a government is legitimate if it is not tyrannical. More particularly, a government is legitimate if, first, it is democratically willed by its citizens, governing by their consent; and second, it meets its obligation to secure and honor the rights of its citizens which is required by the social contract between it and them. For Locke, the safeguarding of the rights of its citizenry is the sole justification for a government’s existence. He further insists that a government be accountable to its people and neither corrupt nor incompetent. If it safeguards its citizens’ rights, a government is legitimate; if fails to do so, it is illegitimate, and the nation it governs forfeits its right of sovereignty and its citizens have the right to revolt. This is a matter of elementary justice. If a government does not honor its citizens’ rights, its nation’s right of sovereignty does not deserve to be honored by other nations. It is those indefeasible rights of its citizens, as specified, for example, in the American Bill of Rights and the United Nations’ Universal Declaration of Human Rights, which are the basis of a nation’s right to sovereignty. According to John Westlake, “The duties and rights of states are only the duties and rights of the men who compose them.” 26 And third, a government has legitimacy and the nation under it has the right of sovereignty if it is recognized by the legitimate governments of other nations. Nations, then, should have the

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right of sovereignty because it is nothing other than the right of their citizens’ to their government’s protection. Now as to the issue of whose rights should take precedence in a conflict between them, a nation’s right of sovereignty or the rights of its citizens. An example of such a conflict would be the case of a foreign power invading a nation (violating its right of sovereignty) in order to protect its citizens’ rights that are being egregiously violated by their government. If a government honors the rights of its citizenry, there can be no conflict between its rights and those of its citizens since they are in accord. A conflict occurs only if a government violates its citizens’ rights, with the result that the nation which it governs forfeits its right of sovereignty. In any conflict between the rights of a nation and those of its citizens, the rights of its citizens should have precedence and for the following reasons: First, assuming the truth of the fiction theory, nations are minimally and uncontroversially legal persons, but human persons are more. Nations are not made of flesh and blood and endowed with a brain from which genuine personhood is derived. Second, a nation’s rights are wholly contingent upon its commitment to the human rights of its citizens—“state rights are authorized and delimited by the human rights of individuals” 27—such that if a nation reneges on that commitment, its rights are abrogated; whereas its citizens’ rights are contingent upon nothing less than their humanity, such that if they lose certain of their civil rights because of criminal behavior, they nevertheless retain a modicum of rights like their right (at least in the United States) not to be subject to cruel and unusual punishment. Third, a nation’s rights are minimally legal rights, whereas a citizen’s rights are moral, that is, more fundamental or ontologically rooted. And fourth, citizens’ rights are primary insofar as they are the source and validation of a nation’s rights, like the right of sovereignty, which are secondary. Humanitarian Intervention Does a nation have the right, even obligation, to intervene militarily in the affairs of another? This question is related to the issue of national sovereignty since any such intervention would transgress the invaded country’s right of sovereignty. The answer to this question depends on which of three forms the military intervention takes. One such form is a nation’s siding with another which has been unjustly attacked by a belligerent power. The second form of intervention is a nation’s taking sides in a civil war or revolution within another. And the third form is a nation’s invading another for humanitarian reasons such as stopping or preventing crimes against humanity within its borders. With respect to a nation’s coming to the aid of another that is the victim of foreign aggression, if there is a formal alliance between them as estab-

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lished through treaties or covenants, then that nation has not only the right but also the obligation, moral as well as legal, to come to its aid in order to protect its right of sovereignty. 28 It is a moral obligation because treaties are promises whose keeping is a moral duty (Kant’s perfect duty and the paradigm of such). It is a legal obligation because treaties are contracts inscribed in law which it is obligatory to honor. Moreover, Article 51 of the UN Charter allows nations to come to the aid of their beset allies. This, therefore, is a noncontroversial form of military intervention. But what of a nation’s intervention on behalf of another when there is no formal alliance between them? Its intervention in this case is not a legal obligation sealed by a treaty. But is it a moral obligation? Does a nation have the right to intervene in such a case? To claim that it has that right and obligation only if authorized by a formal treaty seems unduly restrictive. Arguably, it does have a right and obligation to intervene since moral principles override legal restrictions. In support of such intervention on moral terms, even though not authorized by a prior legal agreement like a treaty, Lackey compares the intervening nation to the biblical Good Samaritan: “We do not, at the personal level, require the Good Samaritans have prior contracts with those they seek to aid, even if the Good Samaritan, unlike his biblical predecessor, must use force to rescue the victim of attack. By analogy, it seems unreasonable to require prior collective defense agreements between international Good Samaritans and nations that are the victims of aggression.” 29 A political realist like Reinhold Niebuhr, though, would demur by saying that this is a false analogy: the moral principles appropriate to governing the behavior of individuals in their interpersonal relationships are not appropriate to governing the behavior of nations in their international ones. Note that the Samaritan’s motive for aiding the afflicted man was compassion. Justice did not demand that he do so; he was not duty-bound to render aid and could not be blamed for failing to do so. His act of mercy is a purely supernumerary act, not obligatory but nonetheless commendable. Similarly “international Good Samaritans” are not obligated by the demand of justice to come to the aid of other nations victimized by foreign aggression, but if they do so it is from compassion, a worthy enough motive. Yet another argument might be adduced for a capable nation’s coming to the side of one unjustly attacked though it has no legal commitment to do so based on prior treaty arrangements. Suppose both nations are democracies where the rights of their citizens are honored. A superior power attacks Y, threatening to overturn its democratically elected government and replace it with a dictatorship. This would destroy the system of democratic governance in Y. The object of this attack is principally a system of governance (remember, war most fundamentally is about who has the prerogative to rule). Now since X shares with Y a similar system of governance, it is clearly in the interest of both to preserve that system. Indeed, an attack on the democratic

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polity of Y is tacitly an attack on the democratic polity of X and, for that matter, on that of any other democracy. Consequently, it is in the political interest of X, if not its moral obligation, to defend democratic principles wherever they are under attack. The fact that Y is separated from X geographically, each with its own borders, is irrelevant. What is under attack is their common system of government. The justification for a democratic nation’s aiding another under attack, then, is not only its national self-interest but also the more principled one of preserving a political value, namely, democracy, which is threatened. Given that a nation has the right and perhaps obligation to aid another that is unjustly attacked, what if intervening militarily on its behalf would cause severe economic hardship at home? Is a nation duty-bound to sacrifice something of its own prosperity for the sake of another? If it has a formal alliance with that nation, then it is legally bound to do so even at the risk of depleting its wealth. However, if no such agreement exists between the two nations, it is neither legally nor morally obligated to do so. This may be understood by drawing an analogy between nations and individuals: Keeping promises and telling the truth are absolute duties, but sacrificing one’s self for another’s sake is not. Self-sacrifice is a supernumerary act of benevolence, admirable if done but not censurable if undone. By the same token, a nation has the duty, both legal and moral, to honor its treaties, but not to deplete itself for the sake of another nation with which it is not formally allied. However, if the majority of a nation’s people consent to a benevolent act of national self-sacrifice, then that is commendable, but if they do not they are not morally blamable. Nations should heed a cautionary note here. They should be careful about with whom they ally themselves through treaties or other international covenants. It was through the entanglement of alliances that precipitated the First World War. And a democratic nation might ally itself with an undemocratic and despotic regime which could be justly invaded by another democratic state for humanitarian reasons and so find itself committed to opposing the latter. A second form of intervention is a nation’s intervening in another’s revolution or civil war on behalf of one side or the other. Does a nation have that right? More particularly, should a democratic nation support a revolutionary movement or side in a civil war against a tyrannical state that denies its people their fundamental human rights? Mill and Walzer argue against it. For Mill, political freedom is a right to be won from within a state and not imposed from without: “The only test possessing any real value, of a people’s having become fit for popular institutions, is that they, or a sufficient portion of them to prevail in the contest, are willing to brave labor and danger for their liberation.” 30 Following Mill, Walzer says, “It is not true, then, that intervention is justified whenever revolution is; for revolutionary activity is an exercise in self-determination, while foreign interference denies to a peo-

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ple those political capacities that only such exercise can bring.” According to Walzer, Mill “doesn’t believe that intervention fails more often than not to serve the purposes of liberty; he believes that, given what liberty is, it necessarily fails.” 31 Walzer, though, identifies three exceptional cases where such intervention may be justified: States can be invaded and wars justly begun to assist secessionist movements (once they have demonstrated their representative character), to balance the prior interventions of other powers, and to rescue peoples threatened with massacre. In each of these cases we permit or, after the fact, we praise or don’t condemn these violations of the formal rules of sovereignty, because they uphold the values of individual life and communal liberty of which sovereignty itself is merely an expression.

These cases of intervention, moreover, are consistent with Mill’s noninterventionist policy which Walzer formulates (parodying Kant) as, “always act so as to recognize and uphold communal autonomy.” 32 Thus, in the case of secession, outside military support for a political faction bent on seceding would indeed be a way of upholding its political autonomy. And, in the case of genocide, a group that is exterminated obviously has no opportunity for communal autonomy, unless it is autonomy in death. A third form that intervention might take is a nation’s invading another for humanitarian reasons such as NATO’s intervention in the Kosovo War in 1999 to stop genocide. This is the most controversial form of intervention since it transgresses most directly the invaded nation’s right of sovereignty. Does a nation that has the power to intervene militarily to prevent or stop crimes against humanity in another country have the right and obligation to do so? Here there is no question of its having a legal right and obligation since there is no pre-existing legal contract like a treaty authorizing such intervention; moreover, it would be undertaken not on behalf of a nation but on behalf of its people who cannot enter into international agreements like treaties. International law is unclear on the right, much less the obligation, of humanitarian intervention, though there is a presumption against it, reflecting the views of Grotius and Vattel. There is a consensus among contemporary international jurists that humanitarian intervention is permissible but only if authorized by the United Nations Security Council, as was the intervention by the United States in Somalia in 1992. The problem with humanitarian intervention, however noble and humane its intent, is not merely the absence of a prior international agreement like a treaty conferring a legal right to intervene, but its violation of the sovereignty of the nation where the intervention occurred, a contravention of international law. The permissibility of humanitarian intervention comes down to whether a nation’s right of sovereignty is absolute which, as I argued above, it is not.

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I shall now make a case for the permissibility of humanitarian intervention. If it receives prior authorization by the United Nations Security Council, a nation has then the legal right to intervene in another on behalf of victims of crimes against humanity. However, though not authorized by the Security Council, and thus lacking a legal right, does a nation nevertheless have a moral right, and obligation no less, to intervene? I shall argue that it has both. For one thing, the moral order transcends the legal order, and moral principles do not require legal authorization to be acted upon. For another, as discussed above in the section on sovereignty, a nation’s right of sovereignty is legitimated by its government’s honoring the rights of its citizens. With its failure to do so, it has forfeited that right, so there is none to be transgressed by the humanitarian intervention of another. The intent of humanitarian intervention is simply to secure the rights of a nation’s citizens which its government failed to do. Finally, there is the precedent of past humanitarian interventions having proven successful such as that recently in Sierra Leone. Given that humanitarian intervention is either legally or morally permissible, under what circumstances would it be justified? Specifically, what human rights whose violation by a government would justify military intervention by a foreign power, thereby infringing the national sovereignty of the nation where intervention would occur? Among the rights of its citizenry a government is pledged to uphold are “physical security; material subsistence; personal freedom; elemental equality; and social recognition as a person and rights holder.” 33 But the violation of only some would justify military intervention to rectify; otherwise there would be occasions for countless interventionist wars by democratic nations. There are regimes like China, Pakistan, and Saudi Arabia which routinely violate such indefeasible rights as free speech and freedom of religion. They might argue, and have done so, that they do not recognize these rights as being indefeasible, and accuse Western nations of paternalism which intervene in the affairs of non-Western ones to enforce the recognition of such rights. A people alone have the prerogative to choose the polity under which they wish to live, even an undemocratic one. Democracy requires the legal and political infrastructure of long-established institutions such as common law and parliamentary government in the English-speaking world. So the liberation of a people through military intervention accomplishes little if the political liberty thereby acquired finds no roots in an institutional soil conducive to its cultivation. This explains the failure of the United States and its allies to establish adequate democracies in Afghanistan and Iraq after pre-emptively invading these countries in the name of regime change. And complicating matters further is that some countries that deny certain rights to their citizens are allies and trading partners of the countries who might be tempted to intervene on behalf of the former’s citizens, thus making their intervention legally and economically unfeasible if not impossible.

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But there is one right, the natural right to life, whose violation in the form of wholesale massacres and genocides committed, or permitted, by a foreign government would presumably justify humanitarian intervention. Recent examples of humanitarian intervention to stop genocide are those that occurred in Cambodia and Uganda (1970s), in Rwanda (1994), in Serbia/Kosovo (1998–1999), and in Sudan/Darfur (2004). These regimes perpetrated, in Walzer’s words, “acts that shock the moral conscience of mankind.” A state perpetrating either directly or indirectly such acts forfeits its right of sovereignty and, consequently, says Orend, “it is actually consistent with the concept of sovereignty for others to go in, in order to protect that population.” 34 Intervention in such extreme cases is, for Orend, not only morally permissible but also obligatory. It is also legally sanctioned by the 2001 report of The International Commission on Intervention and State Sovereignty (ICISS). Apart from the enormity of the crimes against humanity occurring in a foreign country, there are two further conditions that need to be met in order to justify humanitarian intervention there. One is that the people being victimized request or consent to it, if possible, though if they happen to live in remote areas where communication is limited or impossible, they might be unable to do so. And the other condition is that military intervention would not cause more suffering than would have occurred without it, though this would be unlikely in the case of stopping large-scale atrocities. The justice of war, then, consists wholly, as Walzer maintains, in the defense of rights when these are threatened or violated. “In the final analysis, says Orend, “you must have a theory of legitimate governance to talk comprehensively about the ethics of war and peace. It is my judgment that an appealing and sound theory of governance must incorporate human rights. . . . Only states which are minimally just are entitled to rights.” 35 Rights may belong to a nation such as its right of sovereignty if legitimated by its honoring the rights of its citizens. A nation has the right and the obligation to defend itself against any attack that threatens its right of sovereignty (if legitimate) or the rights of its citizens. Other nations have the right and obligation to defend nations under attack to which they are bound through treaties and alliances. Moreover, a nation has the right and obligation to intervene in the internal affairs of another, and so violate its right of sovereignty, if the latter is egregiously abusing the rights of its citizens by, for example, acts of genocide and other crimes against humanity. Many reasons for maintaining the existence of rights may be given, as shown in the previous chapter on rights and their validation.

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JUS IN BELLO Ethical Foundation Both the external and internal principles of jus in bello can be given Aristotelian, utilitarian, and deontological justifications as well as from natural law. One external principle is the principle of necessity, the military form of the criterion of proportionality which in its political form is used to determine the feasibility of war by weighing its estimated costs and benefits. The principle of necessity stipulates that only that degree of force sufficient to attain a military objective—nothing more—is permissible, and that the degree of force expended should be proportionate to the objective’s importance. Proportionality, though perhaps not inspired by Aristotle, certainly reflects his conception of virtue. A second external principle of jus in bello is noncombatant immunity which mandates that civilians and their property should not be intentionally attacked but every possible measure taken to ensure their safety. Noncombatant immunity hardly needs justification; it is patently obvious that this is a just principle. To subject the innocent to violence is the height of injustice. However, if demanded, a deontological justification would emphasize the right of civilians not to be subjected to undeserved violence; a utilitarian justification would focus on the deleterious consequences for society of killing civilians and destroying or damaging their property; and a justification from natural law would stress that innocents should not be intentionally attacked as presupposed in Aquinas’s principle of double-effect. A third external principle of jus in bello requires that combatants obey those international treaties like the Geneva Conventions banning actions mala in se such as using biological and chemical weapons. Both utilitarians and deontologists would support the honoring of such treaties, though for different reasons: Utilitarians like Mill would claim that honoring treaties would have better long-term consequences for nations than not honoring them. Whereas deontologists like Kant would insist that honoring treaties is a form of promise-keeping, a perfect duty. I turn now to the internal principle of jus in bello which is concerned with how a state should treat its own citizens in time of war. The internal principle is that the state must honor the rights of its citizens, if for no other reason than consistency: the state wages war justly to protect its own right of sovereignty and that of other nations, together with its citizens’ rights, which are unfairly attacked. But there are also good utilitarian and deontological reasons for doing so. The utilitarian reason is that a state’s honoring the rights of its citizens would in the long run yield better political benefits that not doing so, whereas the deontological reason is that the irrefragable rights of its citizens may under no circumstances be curtailed.

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Moral Issues The moral issues raised by jus in bello have to do with noncombatant immunity, particularly Aquinas’ doctrine of double-effect; reprisals; neutrality; and the suspension of jus in bello. Noncombatant Immunity The indirect or accidental killing of civilians, though abhorrent, is morally justifiable on Aquinas’ principle of double-effect. This principle makes a distinction between effects of an action foreseen or unforeseen but unintended and those intended. Thus, the inadvertent killing of civilians is justified, but if and only if the following conditions are met: (a) the proposed action is morally permissible and not malum in se (evil in itself); (b) the harmful action is appropriate (proportional) to achieving the desired military goal; (c) every precaution against doing harm to civilians is taken; (d) the agent intends only the good effects and not the bad; (e) the bad effects are not the means to the good; (f) the good effects outweigh the bad. 36 How, though, can the intended good effects be accurately distinguished from foreseen or unforeseen bad effects? Good and bad effects are equally effects. Suppose the intention of the air force is to bomb a munitions plant in the vicinity of a school. There is a likelihood, very slim perhaps, that there will be civilian casualties if the plant is bombed. Now these casualties, a bad effect, is foreseen but unintended. However, since they would be the foreseen result of doing what is intended then arguably they are a derivative or part of the original intention. Agents’ intentions, however, are discernible in the overall pattern of their external behavior—for Walzer, the “surest sign of good intentions in war is restraint in its conduct.” 37 This means that an army rigorously conforming to the principles of jus in bello cannot be said to intend the deaths of civilians as collateral damage if they occur. “Due care” must be taken to minimize civilian casualties which means, for Walzer, that soldiers assume more risks to themselves so as to protect civilians without, however, dooming their mission. An objection to the doctrine of double-effect as excusing the inadvertent killing of civilians can yet be made to its stipulation that the good effect of, say, hitting a target with foreseeable civilian casualties outweighs the bad effect of killing civilians. For how can the worth of any military success be commensurate with the worth of the individual lives of civilians, and how can its supposedly greater worth be demonstrated? There is no answer to these questions. One who believes that pacifism is impractical must accept the terrible fact that in war all evil cannot be eradicated; at best, it can only be minimized. The viability of the subjective version of the principle of noncombatant immunity depends on the validity of the moral distinction between direct and

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indirect killing. If that distinction is not valid, then the subjective version of the principle of noncombatant immunity is null and void and the objective version alone remains—whether civilians are killed directly (intentionally) or indirectly (unintentionally) is beside the point; either way the principle of noncombatant immunity is violated. Reprisals Are reprisals ever morally justified? Walzer for one thinks so. He lays down the following criteria that reprisals must meet to be justified: (1) They target only enemy combatants for their violation of jus in bello. Even though the attack occasioning reprisal targeted civilians, the reprisal must never do so. The authority carrying out reprisals must do everything it can to prevent harm to civilians (the rule of noncombatant immunity). (2) They are proportionate in the harm and damage inflicted to those of the initial attack and sufficient to deter further violations of jus in bello (the rule of proportionality). Walzer’s example of a justified reprisal is what Churchill threatened when he warned the Germans at the start of World War II that their use of poison gas on the battlefield would bring reprisals in kind. So much can be said in defense of wartime reprisals. But what of those in peacetime? In particular, under what circumstances might the infringement of a nation’s sovereignty be justified in reprisals against terrorists in its midst who victimize nations? One is where its government is shown to knowingly harbor them and even condone their terrorist acts, in which case it is liable for them and may itself be a deserving object of reprisal. The other circumstance is where a government would if it could, but cannot, restrain terrorists within its borders, in which case it is not liable but its competence and hence legitimacy may be challenged, and a foreign power may rightfully intervene as a political surrogate to gain that control—something Aristotle advocates. Either way, reprisals infringing on national sovereignty are justified: “If a government literally cannot control the inhabitants of the territory over which it supposedly presides, or police its borders, and if other countries suffer because of this incapacity, then surrogate controlling and policing are clearly permissible . . . as punishment assumes moral agency, so reprisal assumes political responsibility.” 38 Walzer justifies reprisals meeting the above criteria on utilitarian grounds inasmuch as punitive reprisals might deter future violations of the rules of jus in bello. “Reprisals are a means of preventing war from becoming entirely barbarous.” 39 Such reprisals have the additional merit of pre-empting war: “Reprisal is a first resort to force, once diplomacy has proven ineffective. It is, again, a ‘military measure short of war,’ an alternative to war, and that description is an important argument in its favor.” Walzer believes, then, that within the important limits outlined above, reprisals are justified; it is more

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important, in his view, to maintain those limits on reprisals than to outlaw them outright: “Reprisals are always [or should be] limited responses to particular transgressions: crimes against the rules of war, small-scale breaches of the peace.” 40 This being conceded, though, the utilitarian defense is objectionable on two counts. First, there is no guarantee that reprisals will have the intended deterrent effect, but instead the effect might be to incite the enemy to further violations of jus in bello out of revenge, thereby setting off a vicious cycle of reprisals followed by their avengement. Second, the utilitarian defense is in danger of opening the door to scapegoating—in reprisals, the evil may be returned on the heads of those who had nothing to do with perpetuating the original evil. This defense lies behind the “principle of war law,” namely, “For every offense punish someone; the guilty, if possible, but someone.” 41 Yet, reprisals can be justified on other than utilitarian grounds such as deterrence; they can also be justified deontologically as retribution for the breaking of some commonly accepted precept of jus in bello. Reprisals are necessary in order to enforce previously agreed-upon precepts, otherwise they would be rendered null and void. When a rule of jus in bello “is violated, parallel and proportionate violations [reprisals], narrowly aimed at reestablishing the rule and at no larger military purpose, are morally permissible.” 42 This deontological justification is derived from Kant. Kant maintains, per the categorical imperative, that when an agent wrongs another he/ she is tacitly authorizing the other to do likewise, and to him/her in particular—whenever an agent acts he/she is universalizing the maxim upon which he/she acts. Thus, when an enemy, or rogue elements within a state, perpetrate unwarranted acts of violence against others, they are implicitly authorizing others to do likewise against themselves by their own universalization of their initial acts. The moral issue of reprisals, then, can be resolved by appealing to both utilitarian and deontological theories of ethics which concur as to their permissibility, but with the proviso that they meet the conditions outlined above. Right of Neutrality But why should nations have a right of neutrality, what justifies it? Why should a declaredly neutral nation claim to have the right to stand by while an aggressor unjustly invades another nation, such as Germany’s invasion of Poland precipitating World War II? Or why should other nations respect a nation’s neutral rights when by infringing them an aggressor nation might be repelled? According to a British proclamation of 1793, the foreign policy of France’s revolutionary government involved “all the surrounding powers in one common danger . . . giving them the right . . . imposing on them the duty,

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to stop the progress of an evil which exists only by the successive violation of all law and property.” 43 The following case may be made against the right of neutrality. There are some aggressive acts by nations so flagrant, and the consequences of their success so dire, that a nation having the capacity to stop them ought to try. If under the shield of neutrality a nation does not, it is permissible for nations at war for a just cause to infringe on its neutral rights if necessary for the defeat of an aggressive power. According to Westlake, “neutrality is not morally justifiable unless intervention in the war is unlikely to promote justice, or could do so only at a ruinous cost to the neutral.” 44 Moreover, the weight of a just cause may be such that it justifies the infringement of a nation’s right of neutrality. Winston Churchill made the case for the infringement of neutral rights when, at the start of the Second World War, he advocated infringing the neutrality of Norway by mining her territorial waters so as to deprive German merchant vessels of safe passage there: We are fighting to re-establish the reign of law and to protect the liberties of small countries. Our defeat would mean an age of barbaric violence, and would be fatal, not only to ourselves, but to the independent life of every small country in Europe . . . we have a right, and indeed are bound in duty, to abrogate for a space some of the conventions of the very laws we seek to consolidate and reaffirm. Small nations must not tie our hands when we are fighting for their rights and freedom. The letter of the law must not in supreme emergency obstruct those who are charged with its protection and enforcement. It would not be right or rational that the aggressor Power should gain one set of advantages by tearing up all laws, and another set by sheltering behind the innate respect for law of its opponents. Humanity, rather than legality, must be our guide. 45

Note that in emphasizing the right and duty to infringe the right of neutrality in order to ensure rights in the future and to reestablish the reign of law, Churchill is appealing to a deontological principle; and in warning of the possible dire consequences of not infringing on the right of neutrality, he is appealing to the utilitarian principle. This moral dilemma as to the feasibility of violating the right of neutrality is, notes Walzer, “the paradigmatic form of the collision between jus ad bellum and jus in bello. The belligerent power believes itself pressed by the exigencies of a just war. The neutral state is firm in its rights: its citizens are not bound to sacrifice themselves to someone else’s exigencies.” 46 Against such as Westlake and Churchill, Walzer stands pat for the right of neutrality, even when, for whatever reason, the neutral nation fails to understand the weighty justice of the cause for which the war is being fought and the consequences of its loss: “It may well be that they [neutral nations] have to fight if they do recognize a danger to themselves, but they cannot rightly

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be forced to fight if they do not. They may be morally blind, or obtuse, or selfish, but these faults do not turn them into the resources of the righteous.” 47 Walzer concedes that a nation, fighting on the just side of a war, may violate neutral rights, but only from necessity and never expediency. Thus, Churchill’s decision to violate Norwegian neutrality in 1940, and the German Chancellor von Bethmann Hollweg’s decision to violate Belgian neutrality in 1914, were decisions of expedience, not necessity. How one resolves the issue of whether or not a neutral nation’s rights to neutrality ought to be violated depends on whether one is utilitarian or deontological in their thinking. A utilitarian would permit the violation of neutrality whether out of expediency or necessity since the ends in this case justify the means. On the other hand, a deontologist would insist that the honoring of rights like the right of neutrality trumps calculations of utility. Walzer effects a compromise between these opposed positions: He does not countenance violations of the right of neutrality merely for the sake of expediency, which is a nod to the deontological position, yet he does countenance them in cases of necessity, which is a concession to the utilitarian side. Suspension of Jus in Bello Is a nation ever justified in cases of extreme emergency to temporarily suspend the jus in bello when its very survival is at stake? To political realists, adherents of realpolitik, this question would never occur. They would affirm that in war no holds are barred, and those fighting in a just cause are exonerated of any blame for violating any strictures of jus in bello because the blame surely falls on the shoulders of the aggressors who started the war. This was the position of Gen. George Sherman in defending his sack of Atlanta during the Civil War: “You cannot qualify war in harsher terms than I will. War is cruelty and you cannot refine it; and those who brought war into our country deserve all the curses and maledictions a people can pour out. I know I had no hand in making this war, and I know I will make more sacrifices to-day than any of you to secure peace.” 48 However, to those who hold to a consistent theory as to the justice of war this question does occur, and the answer depends on whether deontological or utilitarian considerations are brought to bear on it. For deontologists like Kant the answer is an absolute “no,” even if it means inviting calamity for the nation at risk. The Latin motto, Fiat justitia ruat caelum (“Let justice be done though the heavens fall.”), epitomizes this position. It is the position of Duke Hsiang of the Chinese state of Sung who in 638 BCE lost a battle rather than take what he considered unfair advantage of the enemy: “The superior man does not inflict a second wound, and does not take prisoner anyone of grey hairs. When the ancients had their armies in the field, they would not attack an enemy when he was in a defile; and though I am but the poor representa-

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tive of a fallen dynasty, I will not sound my drums to attack an unformed host.” 49 The Kantian case against suspension of the jus in bello even in dire circumstances might go something like this: First, if the right (just) side’s strict adherence to jus in bello were to result in its defeat and a victory for the wrong (unjust) side, the respective defeat and victory would only be momentary for in the long run justice would prevail. In Kant’s view, rights-respecting republics averse to war will eventually proliferate in the world. Thus, a defeat for the right (just) side because of its commitment to jus in bello would be only a temporary setback in the larger political scheme of things. Second, one can never be absolutely sure that the suspension of the jus in bello would be effective and so warranted. It might backfire on the nation that suspended it. This is reminiscent of “The Case of the Inquiring Murderer” mentioned earlier. If you remember, Kant says that you should, when asked, tell the truth about the whereabouts of his potential victim to a murderer in hot pursuit, even though doing so risks the victim’s life. However, it may well be that the victim did not go to where you thought he went, and by lying about his whereabouts you inadvertently tell the murderer where the victim actually went, enabling him to catch up to and kill his victim. Since it is impossible to know for certain the consequences of our actions, we should err on the side of caution by observing the moral law, in this case to tell the truth. By the same token, one cannot be certain about the consequences of suspending jus in bello, which may very well be the opposite of what was expected, therefore it should be scrupulously adhered to. And third, a suspension of jus in bello violates the perfect duty of keeping our promises. A nation pledges, either formally through international covenants or tacitly, to adhere to the precepts of jus in bello. To violate those precepts, under any circumstances, is to renege on that pledge or promise. This would be contrary to the demand of the categorical imperative since the maxim or principle behind their violation could not be rationally universalized: their violation would annihilate the very concept of a pledge or promise; it would involve self-interested expedience as its nonmoral justification; and it would risk using persons (innocent victims of collateral damage) as a means to achieving a strategic end, a denigration of their inviolable dignity. However, Kant’s opposition to any suspension of the jus in bello is objectionable on the following counts: To his view that the future course of history will favor the emergence of peaceable republics that will redeem past injustices, the result of an historical determinism, it can be objected that this is unproved at best and is nothing more than a pious hope and faith born of the optimism of the Enlightenment. Currently, though the Western nations are peaceable democracies, they still compete with nondemocratic even tyrannical governments throughout the world with no commitment to peace. To Kant’s insistence that adherence to jus in bello is a duty like keeping a

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promise, it can be objected that though a state has the duty to uphold the laws of war, it also has no less a duty to protect its citizens from harm, such as the terrible harm that might come to them if jus in bello were not suspended in the face of a supreme emergency. The worst consequence of suspending jus in bello in such a case would be an infringement of the moral law, an abstraction. But the worst consequence (which Kant would consider morally irrelevant) of adhering to jus in bello even in cases of dire emergency would be the catastrophic suffering and death of innocent victims. As to Kant’s warning of the bad unforeseen consequences of suspending jus in bello, the same set of objections are as applicable to it as to “The Case of the Inquiring Murderer.” Though there are possibly bad unforeseen consequences of suspending jus in bello, as there are of lying to the murderer, there are also bad unforeseen consequences of not suspending jus in bello, as there are of telling the murderer the truth; and the consequences of not suspending jus in bello are more immediate and probable than those of adhering to it. Moreover, for Kant to consider consequences at all in this case is to resort to a utilitarian criterion that his deontological ethics rules out from the start. Here is a classic example of a conflict between two perfect duties, viz., the duty to preserve life and the duty to honor pledges or promises embedded in international law like jus in bello. It is seemingly an intractable moral dilemma. One possible way out of this dilemma is to invoke Ross’s principle of prima facie duties and say that “intuition” would dictate that the preservation of human life and the prevention of human suffering should take precedence in any such conflict (though as earlier pointed out appeals to intuition are dubious). Another way of escape is to appeal to what I have called our “moral common sense,” though this too is not unproblematic. Such an appeal might consider, for example, the consequences of a Nazi victory in the Second World War which undoubtedly would have included a prolonged genocide and slavery. Should not anything be done, including the suspension of the jus in bello, to prevent such a catastrophe? To deny it in the name of a commitment to an abstract moral principle like keeping pledges smacks of a sophistical and excessive scrupulosity over abstract ethical theory. Utilitarians undoubtedly would take a position midway between the extremes of political realism and deontologism, arguing that it is morally permissible to violate the rules of jus in bello to ward off the greater evil incurred by obeying them. Walzer takes such a position which does, though, make a deontological concession to human rights—“do justice unless the heavens are (really) about to fall”—which he calls “the utilitarianism of extremity, for it concedes that in certain very special cases, though never as a matter of course even in just wars, the only restraints upon military action are those of usefulness and proportionality.” 50 But Orend cautions, in reference to Walzer, that suspension of the jus in bello is justified if and only if: “(1)

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there is public proof the aggressor is just about to defeat the victim militarily; and (2) there is similar proof that once it does so, the aggressor will not simply crush the political sovereignty of the victim community but, moreover, institute a policy of widespread massacre and enslavement against its individual members.” 51 It is true that the expression “public proof” is vague, though its vagueness might be diminished to an acceptable degree. Thus, the rights that jus in bello is designed to protect may be overridden in cases of supreme emergency, though Walzer is careful to qualify this by noting that “overridden” does not mean “abandoned,” but only a temporary suspension: “These rights . . . cannot be eroded or undercut; nothing diminishes them; they are still standing at the very moment they are overridden: that is why they have to be overridden.” 52 Their overriding might be justified by again appealing to Ross’s principle of prima facie duties. A nation has a duty to protect these rights, but no less the duty to safeguard itself from destruction. But when these two duties conflict, a nation ought to choose self-preservation over honoring jus in bello so as to ensure justice for its citizens and the long-term preservation of their rights, which is justifiable on both utilitarian and deontological grounds. Still, though, Walzer is ambivalent about the morality of suspending jus in bello in supreme emergencies. His position, a fusion of deontological and utilitarian considerations, is by his own admission paradoxical—suspension of jus in bello in supreme emergencies is both moral and immoral at the same time: “in supreme emergencies our judgments are doubled, reflecting the dualist character of the theory of war and the deeper complexities of our moral realism; we say yes and no, right and wrong. That dualism makes us uneasy; the world is not a fully comprehensible, let alone a morally satisfactory place.” 53 To refuse to suspend jus in bello on deontological grounds is to risk the destruction of the very culture that makes it possible and practicable. More particularly, that refusal might entail the effacement of the moral universe in the name of morality—it is to kill the moral goose that lays the moral eggs: “How can we, with our principles and prohibitions, stand by and watch the destruction of the moral world in which those principles and prohibitions have their hold? How can we, the opponents of murder, fail to resist the practice of mass murder—even if resistance requires us, as the phrase goes to get our hands dirty (that is, to become murderers ourselves)?” Walzer seems in the final analysis to weigh the scales in favor of utilitarianism, as evidenced in this remark as reported by Orend: “A morally strong leader is someone who understands why it is wrong to kill the innocent and refuses to do so, refuses again and again, until the heavens are about to fall. And then he becomes a moral criminal . . . who knows that he can’t do what he has to do—and finally does.” 54 The utilitarian justification of suspending jus in bello in extreme circumstances is open to Orend’s two objections: First, it is precisely in the situation

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of a supreme emergency that jus in bello is most called for and needs to come fully into play. Second, consistent adherence to jus in bello is necessary for preventing a descent into total war and its attendant disasters. For Orend, the suspension of any of the precepts of jus in bello strikes at the very heart of just war theory: “And if just war theory stands for anything, it is that total warfare must be avoided. The very essence of just war theory, we now know, is to insist on restraints in the reasons for fighting, and in the means used in fighting.” 55 Yet, Orend allows that suspension of jus in bello is morally permissible if it meets the following five conditions: (1) that it be absolutely the last resort; (2) that the threat to suspend jus in bello be publicly declared so as to give the aggressor nation pause and perhaps deflect it from its course; (3) that appeal be made to the international community, through, say, the agency of the United Nations, to intervene so as to diminish the emergency; (4) that the right intention in suspending jus in bello be preserved, namely, the nation’s survival and not as a pretext for territorial expansion or revenge; (5) that the suspension of jus in bello has a high probability of success in preserving intact the nation contemplating it. There is, moreover, another argument supporting the suspension of jus in bello in supreme emergencies based on the idea that a nation fighting for its survival in a just cause has justice on its side. If the only way it can win is by compromising jus in bello, then that compromise is justified by the vindication of justice in its victory, which would otherwise have been impossible. Jus in bello is sacrificed, as it were, on the altar of jus ad bellum, a higher god. Though admittedly there is something odd about claiming to fight in a just cause but being willing to fight for it unjustly—injustice in the name of justice! This argument is both deontological and utilitarian in character. When stated positively as in “the more justice, the more right” it is deontological. When stated negatively as in “the greater the injustice likely to result from my defeat, the more rules I can violate in order to avoid defeat,” 56 it is utilitarian. Though jus in bello broadly considered may justifiably be suspended in extreme situations, there are certain of its principles that should remain inviolable such as those prohibiting the deliberate targeting of schools and hospitals for attack. Arguably, if a nation scrupulously observes the precepts of jus ad bellum in going to war in the first place and so has justice on its side, then perhaps that is justice enough and so would make the jus in bello dispensable in cases of supreme emergency. The ambivalence with which one might regard the suspension of jus in bello results from the dual perspective on a supreme emergency, the moral and the prudent, as Orend notes: “Morally, a supreme emergency is a terrible tragedy. Prudentially, it is a struggle for survival.” 57 From the moral perspective, the supreme emergency is a tragedy because whichever choice is made a moral law is ineluctably violated—it is a matter of damned if you do and

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damned if you don’t. Either a nation suspends jus in bello for the sake of its survival, thereby reneging on its pledge to adhere to jus in bello. Or, it refuses to suspend jus in bello, thereby imperiling its continuance as a sovereign nation and reneging on its duty to protect its citizens’ rights. Alternatively, from the prudential perspective, a nation’s very existence is at stake in a supreme emergency. It is an inescapable moral dilemma. 58 This dual perspective on a supreme emergency reflects Kant’s dual perspective on humanity. According to Kant, from the perspective of its phenomenal existence, a human being is just another animal moved by emotions, instincts, and drives and subject to the same causal determinism as other animals. But from the perspective of its noumenal existence, a human being is one mindful of the moral law obedience to which makes true freedom possible. JUS POST BELLUM Ethical Foundation Ethical justifications for peace are superfluous since this a condition whose supreme value no one can reasonably deny. If need be, however, there are justifications forthcoming from every type of ethical theory, one being natural law. Its representatives extoll the merits of peace. Thus for Grotius, natural law demands that naturally gregarious human beings live in peace; and for Hobbes, it is the fundamental law of nature that peace be the supreme human goal. Utilitarians would extoll the social benefits of peace, whereas the deontologists would see peace as the condition under which human rights would be most secure. And for Aristotelians peace is a necessary condition for a flourishing state of existence, whether of individuals or states. More particularly, Orend’s program for the establishment of peace after war is ethically justifiable from all three standpoints of aretaic ethics, utilitarianism, and deontological ethics which contributes to its validity. I shall now show that this is the case for each principle of his program for peace. His first principle is that the terms of peace should be moderate, as well as rational and publically declared. His insistence on moderation, of course, evokes Aristotle’s rule of proportionality. Orend’s second principle is that human rights lost in war should be quickly restored at the peace. Utilitarians would justify their restoration by the social benefits that would accrue from them, and deontologists by their enhancing the dignity of their possessors. His third principle is that only those who were complicit in planning and waging an unjust war, or in committing war crimes, ought to be held liable to penalties exacted by war-crime tribunals. This is a principle of fundamental justice that would be supported by any ethical theory. Orend’s fourth, fifth and sixth principles, namely, those found guilty of violating human rights or of war

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crimes ought to receive penalties proportionate to the seriousness of their offenses; that reparations ought to be proportional to the defeated nation’s ability to pay and the victor’s needs; and that the political and social rehabilitation of an aggressor nation ought to be proportional to the need, all evoke Aristotle’s rule of proportionality. Now I am not saying that these principles were inspired by Aristotelian proportionality (probably not), but they certainly reflect and are justified by it. Moral Issues Moral issues emerging from jus post bellum are two issues of justice, namely, who is to blame, the nation as a collectivity or its individual citizens, for prosecuting an unjust war and committing war crimes and crimes against humanity; and what kind of justice should they be subject to? Complicity in Waging Aggressive Wars & Crimes against Humanity Whether nations are actually persons (agents) as French maintains on the reality theory of collective personhood, or merely legal persons on the fiction theory, either way they are blamable for prosecuting unjust wars and crimes against humanity like the Holocaust. And since on either theory it is a nation’s government, as the nexus of national personhood, on which blame devolves, then it is that which should be brought to book. Blame also devolves on military personnel who commit war crimes and they too should be brought to account. But how far, if at all, should civilian noncombatants and nonpolitical officials of a regime be held accountable for supporting in their various nonmilitary capacities their nation’s unjust war? In other words, do the precepts of jus ad bellum apply to them as well as their political and military leaders? The British prosecutor at the Nuremberg Trials thought they should apply to such noncombatants as judges. Holding them accountable might deter officials from supporting the unjust side in a future war and so provide a check on its prosecution. And what about the accountability of military personnel of lower rank with limited if any command authority who fight on the unjust side? Walzer believes for various reasons, such as the constraints lower ranking soldiers are under, that they should not be held accountable. Orend agrees, stating that there should be a presumption against holding accountable lower-ranking soldiers who were ignorant as to the injustice of the war, though with the following qualification: But this presumption does not preclude us from concluding in particular cases based on public evidence: that some soldiers of a particular aggressor state either did know, or really should have known, about the injustice of the war

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they were fighting; that they could have refused to participate in it; and thus that they may be held responsible, albeit with much lesser penalties than the elites. Such soldiers would be like minor accomplices to a major crime. 59

It should be pointed out, however, that conscripted soldiers who from conscience refuse to fight on the aggressor’s side in an unjust war might risk punishment for their refusal. This would, of course, be an extenuating factor in determining their guilt for war crimes they were ordered to commit against their will. Given, as Orend states, that some soldiers fighting on the unjust side should be held accountable as accomplices afterwards, how should they be dealt with? They, being less responsible than their leaders, should not be prosecuted unless they violated a specific precept of jus in bello. They are not legally responsible, having broken no international law nor their own country’s law, but they could properly be held morally responsible and publically censured and sanctioned, actions that would enforce and preserve the moral order. Should an entire nation be held morally accountable and punished for the crimes of its political and military leaders? Daniel J. Goldhagen believes so. In his book, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust, 60 he argues that the majority of Germans knew of the Holocaust and were complicit in it and, by implication, morally culpable. But by no means should a country’s population as a whole be punished for the crimes of their leaders and suffer from punitive post-war policies such as being forced to make ruinous reparations. Locke agrees, as previously mentioned, that the civilian population should under all circumstances be spared any retaliatory retribution: “for the people having given to their governors no power to do an unjust thing, such as is to make an unjust war, (for they never had such a power in themselves) they ought not to be charged as guilty of the violence and unjustice that is committed in an unjust war, any farther than they actually abet it.” For Locke, the guiltless whose lives and property should be thus protected include even those of the dependents, wives and children, of the guilty: “the right . . . of conquest extends only to the lives of those who joined in the war, but not to their estates, but only in order to make reparation for the damages received and the charges of the war, and that, too, with reservation of the right of the innocent wife and children.” However, the right of conquest does extend to the political authorities who authorized the war and the military authorities who prosecuted it. On them it is open season; the victors have the absolute moral right to punish them to the utmost in order to ensure the peace. Locke’s stipulations rule out a scorched-earth policy on the part of the victors and their right to dominion over the conquered peoples. H. D. Lewis believes it is patently unjust to blame a whole group for the actions of a few within it, i.e., a nation’s leadership: “Value belongs to the individual and it is the individual who is the sole bearer of

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moral responsibility. No one is morally guilty except in relation to some conduct which he himself considered to be wrong … Collective responsibility is . . . barbarous.” 61 Goldhagen’s blanket condemnation of Germans for their role in the Holocaust would be palpably unjust to members of resistant movements like the White Rose (die Weiße Rose) which opposed the Nazi regime. Administration of Justice What kind of justice should be meted out to political and military leaders who take their nations into unjust wars or commit war crimes and crimes against humanity? Justice belongs alike to the legal and moral realms; there is justice according to positive law and justice according to moral (natural) law. Sometimes the two coincide but not always. Political realists might argue that the justice to be meted out to the perpetrators of aggressive wars and war criminals should be according to positive, not natural or moral law. Determinations of legal, not moral, culpability are requisite here. Legal judgments are possible because “legal liability is a matter of definite rules, well-known procedures, and authoritative judges, while morality is nothing more than endless talk, where every talker has an equal right to his opinions.” 62 This realist position is implied by Joseph W. Bishop, Jr. who believes that the imputation of guilt in the matter of war and war crimes is entirely and solely the business of law, not morality: “I shall make no attempt to say what is immoral—not because I believe morality is unimportant, but because my views on it are entitled to no more weight than Jane Fonda’s or Richard M. Nixon’s, or yours.” 63 Bishop’s realist position, though, is open to the following objections. First, it may be true that Bishop’s views are entitled to no more weight than Fonda’s or Nixon’s, but does it follow that they are entitled to no more weight than, say, Aristotle’s, Kant’s, or Mill’s? The weight of one’s moral views depends on the cogency of the arguments backing them up—the better the argument then the weightier the view, though this does not mean that those views are correct but only that they at least merit careful consideration. Second, morality, no less than legal liability, is to some degree a matter of definite rules such as those of the Decalogue. And third, legal liability typically presupposes moral culpability since the law necessarily expresses certain basal moral principles. Walzer seems to have something like this in mind when he says that moral authority “has to do with the capacity to evoke commonly accepted principles in persuasive ways and to apply them to particular cases.” 64 Examples of particular cases to which such moral principles apply would be legal cases involving the assignment of blame. Moral judgments, even when only implicit, are unavoidable.

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Both forms of justice, legal and moral, should be meted out to perpetrators of unjust wars and war criminals. Legal justice, or that according to international law, should be and is meted out to individual persons found guilty of determinable crimes by tribunals like the International Criminal Court at The Hague. Those persons would typically include members of the political or military leadership having the power to authorize or commit war crimes and crimes against humanity. It would be unjust to prosecute those who were not complicit in criminal activity. Moral justice, or that according to moral (natural) law, should be meted out to nations conceived of as moral persons in French’s sense. It would not be possible or appropriate to try such a collectivity in an international criminal court which is charged with determining the guilt of specific individuals but not of whole groups, and if found guilty to punish them as international law prescribes. No individuals could reasonably be indicted, and a whole nation found guilty of war crimes, unlike individual war criminals, could not feasibly be punished by imprisonment! However, if a whole nation can be appropriately blamed for war crimes and crimes against humanity, then justice demands that it deserves some form of appropriate retribution. Appropriate nonjuridical punishments might include changing the membership of the responsible government or dissolving it entirely, and obliging what replaces it to make restitution to its victims. As Kerlin puts it: Similarly we make a serious practical and ethical mistake in treating the group or the organization as a moral agent in its own right. Where the group is a force for evil, we should change its membership or at the limit break it up. Moral blame and punishment must ultimately go to the people who have deliberately set the viruses loose or failed to control them or willingly submitted to them. Where the organization is a force for evil, we should re-engineer it by changing its leaders or its structures. Just as with any group, our moral discourse is with the creators of the structures, with those who manipulate them, with those who accept them, with those who profit from them. We cannot reason with the organization nor can we shame it. And we misdirect our energies when we act as though we could reason with it or shame it. 65

A nation blamed for egregious crimes might be further penalized by having heaped upon it the opprobrium of the moral community of humankind. In addition, industries which contributed indirectly to their nation’s crimes against humanity by producing biological and chemical agents indiscriminately used against civilian populations might have to undergo change of their leadership or even liquidated, or be sanctioned by adverse public opinion, An example of such an industry is IG Farben, the producer of Zyklon B, the gas used in the death camps of Nazi Germany. Mill thinks such “external sanctions” imposed by public opinion could effectively restrain illicit behavior.

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There is ample justification, then, for bringing both nations and their citizens to account for prosecuting an unjust war, war crimes, and crimes against humanity. Individual citizens can be brought legally to account and punished juridically for their crimes; entire nations can be brought morally to account and punished nonjuridically for them. There are both utilitarian and deontological grounds for the administration of both forms of justice, legal and moral, which would serve to preserve the integrity of the legal and moral realms, respectively. SUMMATION The criteria to be met to render a war and its conduct just differ in the degree of support they receive from the various ethical theories and the degree to which they reflect them. Thus, those criteria emphasizing justice and human rights receive more support from and more obviously reflect deontological ethics. Those emphasizing the consequences, both costs and benefits, of war derive more support from and mirror utilitarian ethics. And those criteria of just war theory demanding proportionality in its various forms owe more to and embody the principles of Aristotelian ethics. The degree of importance one gives to a particular criterion of just war theory depends on the ethical theory one subscribes to. Thus, utilitarians would perhaps not be as insistent on a nation’s right intention for war as deontologists since what counts for them is not the motives for war but its consequences, among which are victory and peace. NOTES 1. Moral realism affirms that there are objective and universally valid moral principles. The theory of natural law is a paradigm of moral realism. 2. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, Inc., Publishers, 1977), 21. 3. Plato, Defense of Socrates Euthyphro Crito, trans. David Gallop, Oxford World’s Classics (Oxford: Oxford University Press, 1999), 10. 4. Francis Bacon, “Of Empire,” in Essays (London: Everyman’s Library, 1973), 59. 5. Brian Orend, The Morality of War (Peterborough, ON: Broadview Press, 2006), 76. 6. Douglas P. Lackey, The Ethics of War and Peace (Englewood Cliffs, NJ: Prentice Hall, 1989), 35–36. 7. Orend, Morality of War, 57. 8. Ibid., 75. 9. Frederick Hallis, Corporate Personality (Oxford: Oxford University Press, 1930), xlii. 10. Peter A. French, Corporate Ethics (Fort Worth, TX: Harcourt Brace College Publishers, 1995), 336, 335. 11. Nominalism is “the theory that general or abstract terms, or universals, represent no objective real existents, but are mere words or names, mere vocal utterances, ‘flatus vocis’. Reality is admitted only to actual physical particulars. Universals exist only post res.” From James K. Feibleman, “Nominalism,” in The Dictionary of Philosophy, ed. Dagobert D. Runes, 16th ed. (New York: Philosophical Library, 1960), 211.

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12. Realism “the theory of the reality of abstract or general terms, or universals, which are held to have an equal and sometimes a superior reality to actual physical particulars.” From, Feibleman, “Realism,” in Dictionary of Philosophy, 264. 13. Josiah Royce, The Christian Doctrine of Life, in The Problem of Christianity (New York: The Macmillan Company, 1913), 1: 62. 14. French, Corporate Ethics, 338, 339. 15. Michael J. Kerlin, “Peter French, Corporate Ethics and The Wizard of Oz,” Journal of Business Ethics 16 (1997): 1435. 16. Peter A. French, “The Corporation as a Moral Person,” American Philosophical Quarterly 16, no. 3 (July, 1979): 207. 17. French, Corporate Ethics, 10, 11, 12. 18. French, “The Corporation as a Moral Person,” 212. 19. John Kenneth Galbraith, The Age of Uncertainty (Boston: Houghton Mifflin Company, 1977), 261. 20. Peter A. French, Collective and Corporate Responsibility (New York: Columbia University Press, 1984), 5, 13. 21. John R. Danley, “Corporate Moral Agency: The Case for Anthropological Bigotry,” in Business Ethics, ed. W. Michael Hoffman and Jennifer Mills Moore (New York: McGraw-Hill Book Company, 1990), 206. 22. Robert F. Gibson, Jr., “Corporations, Persons, and Moral Responsibility,” 24. https:// www.paulowenmartin.com/files/rfg/gibson_corporations_persons_moral_responsibility_19861987.pdf 23. Lackey, Ethics of War and Peace, 38. 24. Kingsley was undoubtedly influenced by Josiah Royce’s plan for peace through international insurance, the topic of the next chapter. 25. Darwin P. Kingsley, An Address (Panama-Pacific International Exposition, 1915), 7, 5, 7, 6, 12. 26. John Westlake, The Collected Papers of John Westlake on Public International Law, L. Oppenheim, ed. (Cambridge: Cambridge University Press, 1914), 78. 27. Orend, Morality of War, 33. 28. Lackey makes a useful distinction, often overlooked by just war theorists, between “morally permissible” and “morally obligatory” wars. Morally permissible wars are those fought for a just cause such as national self-defense. Morally obligatory wars are the sort enjoined by international treaties where a nation promises to come to the defense of an allied nation when unjustly attacked, as in the case when Great Britain came to the aid of Poland when invaded by Germany thereby initiating the Second World War. The difference between the two kinds of war is that permissible wars, though morally permitted, do not have to be fought, whereas obligatory wars, because of the treaty obligations dictated by alliances, do. However, this distinction between permissible and obligatory wars becomes blurred if a state has the obligation, based on a prior social contract, to defend its citizens in the face of an unprovoked attack on them. In this case war would be morally permissible but no less morally obligatory. Lackey also notes that “the terms ‘just’ and ‘unjust’ are logical contraries” which means that in a conflict only one side can be just but both sides can be unjust. See Lackey, Ethics of War and Peace, 28–29. 29. Lackey, Ethics of War and Peace, 37. 30. John Stuart Mill, “A Few Words on Non-Intervention,” in Essays on Equality, Law, and Education, The Collected Works of John Stuart Mill, ed. John M. Robson (Toronto: University of Toronto Press, 1984), XXI: 122. 31. Walzer, Just and Unjust Wars, 87–88. 32. Ibid., 108, 90. 33. Orend, Morality of War, 33. 34. Ibid., 91. 35. Ibid., 54 36. Ibid., 115. 37. As quoted ibid., 116. 38. Walzer, Just and Unjust Wars, 220.

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39. H. Brocher, “Les principes naturels du droit de la guerre,” 5 Revue de droit international et de legislation compare (1873), 349; quoted in Walzer, Just and Unjust Wars, 207. 40. Walzer, Just and Unjust Wars, 218, 221. 41. J. M. Spaight, War Rights on Land (London: Macmillan and Co., Limited, 1911), 120. 42. Walzer, Just and Unjust Wars, 215. 43. Philip C. Jessup, Neutrality: Its History, Economics, and Law (New York: Columbia University Press, 1936), 2: 80; as cited in Walzer, Just and Unjust Wars, 233–34. 44. John Westlake, International Law, II (Cambridge: Cambridge University Press, 1910), 191. 45. Winston Churchill, The Gathering Storm, in The Second World War (Boston: Houghton Mifflin Company, 1948), 547. 46. Walzer, Just and Unjust Wars, 239. 47. Ibid., 247. 48. William Tecumseh Sherman, Memoirs of General William T. Sherman by Himself, Civil War Centennial Series (Bloomington, IN: Indiana University Press, 1957), 126. 49. James Legge, trans., The Ch’un Ts’ew with The Tso Chuen, in The Chinese Classics (Hong Kong: Hong Kong University Press, 1960), 5:183. 50. Walzer, Just and Unjust Wars, 231. 51. Orend, Morality of War, 140. 52. Walzer, Just and Unjust Wars, 231. 53. Ibid., 326–27. 54. Orend, Morality of War, 153, 154. 55. Ibid., 150. 56. Walzer, Just and Unjust Wars, 229. 57. Orend, Morality of War, 155. 58. Prudence is not the opposite of the moral (though Kant thinks so), and, moreover, is not that distant from it. For Aristotle, prudence is a moral virtue. And Mill allows that expedience (a form of prudence) may be morally justified on utilitarian grounds. 59. Orend, Morality of War, 109. 60. See Daniel J. Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust (New York: Alfred A. Knopf, 1996). 61. H. D. Lewis, “Collective Responsibility,” Philosophy, 24 (1948), 3–6; quoted in https:// plato.stanford.edu/entries/collective-responsibility/ 62. Walzer, Just and Unjust Wars, 288. 63. Joseph W. Bishop, Jr., “The Question of War Crimes,” 54 Commentary (December, 1972): 6:85; quoted in Walzer, Just and Unjust Wars, 288. 64. Walzer, Just and Unjust Wars, 288. 65. Kerlin, “Peter French, Corporate Ethics and The Wizard of Oz”: 1437.

Chapter Thirteen

Josiah Royce on the Justice of War

Josiah Royce (1855–1916), together with Charles Sanders Peirce, William James, John Dewey, and George Santayana, marks American philosophy’s Golden Age. Born in Grass Valley, California, Royce, after studying in Germany, took the PhD in philosophy from the newly founded graduate School of Johns Hopkins University and subsequently joined the philosophy department at Harvard where he remained. He was a belated absolute idealist who synthesized elements of Hegel’s objective idealism, Schopenhauer’s voluntarism, British empiricism, and Peirce’s pragmatism. Royce’s reputation may not be as high as that of his philosophical confreres, but his thought deserves to be better known, particularly as it concerns what amounts to a theory of the justice of war. Though Royce does not explicitly and formally formulate a just war theory as such, the makings of one can nevertheless be gleaned from his work in practical ethics. His theory of a just war is innovative in two ways: First, it frames the just cause of war in terms of the preservation and restoration of a people’s loyalty to their national ideals. Second, it suggest a fourth component of just war theory that I label neologistically as jus ad pacem (justice/law for or about peace) which concerns the prevention of war and the maintenance of peace. It is related to jus post bellum concerned as it is with the continuance of peace after the cessation of war. Royce was alive during the Civil War and the Spanish-American War, with the Mexican-American War still green in his memory. He was acutely aware of the horror of war, of which he paints the following harrowing picture: “Contemplate a battle field the first night after the struggle, contemplate here a vast company the equal of the population of a great town, writhing in agony, their groans sounding at a great distance like the roar of

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the ocean, their pain uneased for many hours, even death, so lavish of his favors all day, now refusing to comfort.” 1 LOYALTY TO LOYALTY With respect to jus ad bellum, Royce lays down very stringent conditions for going to war. For Royce the sole justification for war is the preservation of loyalties, an application of his ethical principle of “loyalty to loyalty,” a distinctive feature of his just war theory. Before continuing, I shall explain what he means by this phrase. Loyalty is Royce’s categorical imperative epitomizing the whole of morality: “I maintain that without loyalty there is no thoroughgoing morality; and I also insist that all special virtues and duties, such as those which the names benevolence, truthfulness, justice, spirituality, charity, recall to our minds, are parts or are special forms of loyalty. My theory is that the whole moral law is implicitly bound up in the one precept: Be loyal.” 2 He defines “loyalty” as “the willing and thoroughgoing devotion of a self to a cause, when the cause is something which unites many selves in one, and which is therefore the interest of a community. For a loyal human being the interest of the community to which he belongs is superior to every merely individual interest of his own. He actively devotes him to this cause.” 3 A communal cause is what endows human life with purpose, and loyalty enables human beings to fully actualize their moral selves. However, whatever local or particular community and its cause one may be loyal to, one’s ultimate loyalty should be to what he calls “the Great Community” inclusive of the whole of humanity. Royce thus shares the cosmopolitan ideal of his fellow Idealists in Great Britain. Royce recognizes that not all loyalties are good, for some are perversions. He asks rhetorically, “Cannot robbers be loyal to their band, slaves to their master, mischievous boys to the comrades whose pranks they incite and applaud, but whose names they refuse to tell to any teacher?” 4 He provides the following criterion for distinguishing good or authentic forms of loyalty from bad, or false, forms. If one’s loyalty to a cause does not interfere with others’ loyalties to their causes, and all these particular loyalties have as their common end the realization of the Great Community, then it is good: “So be loyal to your own cause as thereby to serve the advancement of the cause of universal loyalty.” 5 Royce distinguishes between loyalty and its object or cause. Not all causes are good and worthy of our loyalty, but the loyalty or devotion itself is always good. What we ought to be ultimately loyal to, then, is the principle of loyalty itself which cannot be sullied by an unworthy cause. Loyalty in and of itself is not evil, but only its objects or causes may be so. For Royce, an evil cause and the false loyalty subserving it is one that

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impedes progress toward the realization of the Great Community. Loyalty to a malign cause is thus an offense to the universal community of humankind, and constitutes loyalty against loyalty. As John Herman Randall, Jr. expresses it, Royce’s ideal community “existing in aspiration rather than as yet in fact, is the true object of love and loyalty. The true moral maxim becomes ‘loyalty to loyalty,’ which expresses devotion to the whole community, the source of being for the individual.” 6 I return now to Royce’s justification for war as the defense of loyalties. War is justified only if it meets a threat to the larger network of benign loyalties, a threat representing disloyality to loyalty itself: “War, for Royce, is necessitated only when the loyalties that are a good in themselves are threatened with annihilation—threatened, that is, with actual and not merely potential aggression—by disloyal predators.” 7 Thus, if a nation is attacked by an aggressor who threatens the institutions to which her citizens are loyal, then she is legally and morally justified to take up arms in defense of her loyalties. Moreover, in the name of “loyalty to loyalty,” a nation might justifiably come to the defense of an ally under attack, as when England defended Belgium after German’s invasion of it in 1914. Royce, moreover, avers that, short of overt military support, a nation is duty bound to give aid (money and armaments) to countries which are unjustly attacked, as was the case when the United States supported Great Britain and her allies in the First World War: “We owe to those allies whatever moral support and whatever financial assistance it is in the power of this nation to give. As to munitions of war: it is not merely a so-called American right that our munition-makers should be free to sell their wares to the enemies of Germany. It is our duty to encourage them to do so, since we are not at the moment in a position to serve mankind by more direct and effective means.” 8 Royce supported the entry of the United States into the war against Germany since he believed nothing less than the survival of civilization itself was at stake. Implicit in Royce’s principle of “loyalty to loyalty” and its correlate of loyalty to the Great Community is that humanitarian intervention in conflicts is morally permissible, if not obligatory. A case in point is genocide. This crime obliterates both a people and their loyalties. A loss of loyalty to a worthy cause, of course, diminishes the stock of loyalty in the world. Royce counsels that political leaders authorized to declare war should exhibit humility and skepticism with respect to the justice of their cause. No nation is either perfectly good or perfectly evil but only more or less so. Nations are neither black nor white but different shades of gray. For Royce nations represent ongoing “ethical processes rather than simply good or evil, in a binary sense.” Leaders should be aware that a just cause might easily degenerate into an unjust one:

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Chapter Thirteen The various nations differ in the degree to which, at any stage of the conflict, their cause is just. In certain respects and with regard to certain of their enterprises, they may be, and are, explicitly aware that they intend to serve the community of mankind; while in other respects, or in regard to other matters, they may act with a more or less explicitly deliberate hostility to the cause of the community of mankind. Their moral position may, therefore, vary accordingly. 9

Examples of such degeneration, of acting with “deliberate hostility to the cause of the community of mankind,” would presumably be the Allies’ firebombing of Dresden and atomic bombing of Nagasaki and Hiroshima during the Second World War. Thus, the idea of a just cause for war, when that cause is pursued, is shrouded in moral ambiguity. Moreover, leaders who prosecute a war ought to be mindful that the enemy may have some degree of justice on their side (which, by the way Vitoria would deny). Their loyalty to their own nation should not blind them to the worthy loyalty of the enemy to their own nation. Thus, Royce commends the loyalty of Robert E. Lee to the Confederacy: “You and I may remember that Lee was the foe of that Union in whose triumph we now rejoice. Yet we may and should look upon him as, in his own personal intent, a model of the spirit of true loyalty; for he gave all that he had and was to what he found to be his cause.” 10 Respecting the loyalty of one’s adversary, however hateful his cause might be, alleviates the sting of armed conflict by bringing to mind the realization that opposed forces are implicitly serving the cause of loyalty itself. Royce claims: It is well also, whenever you have to fight, to learn the art of honoring your opponent’s loyalty, even if you learn of it mainly through feeling the weight and the sharpness of his sword. “It is a deep cut; but a loyal enemy was he who could give it to me”—to think in such terms is to lighten the gloom of conflict with what may sometimes be more precious than a transient victory; for at such moments of honoring the loyally dangerous enemy, we begin to learn that all the loyal are in spirit serving, however unwittingly, the same universal cause. To be sure, when men have once sufficiently learned that lesson, they cease to fight. But while fighting lasts, if you cannot love your enemy, it is a beautiful thing to be able to enjoy the sight of his loyalty. 11

For a war to be just, then, Royce demands it meet two conditions. It must oppose actions of aggressor nations that destroy the loyalties of others; and it must preserve and widen the network of loyalties among peoples. There is no place in his thought for the jingoistic, “My country right or wrong.” As in his theory of jus ad bellum, the focus of Royce’s theory of jus in bello is on people’s loyalties and their preservation, which Jason Bell summarizes as follows:

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Thus Royce expressly forbade in his philosophy of loyalty and by his application of it to particular questions in war ethics the right to make war on civilians, to torture the captured enemy to force them to renounce their loyalties, to steal the enemy’s property after a victory, or to seek to annihilate the right of a neighbor to choose his or her own loyalties after the temporary aggression is defeated, lest the victorious warriors, even if their cause was at first just, lose sight of the value of the relation of loyalty itself in an exclusive quest to exalt a mere particular loyalty above all particular competitors. 12

Royce is concerned here with intangibles (the right of people to choose the causes to which they pledge their loyalty) and tangibles (attacks on civilians, torture, and theft of property). If loyalty itself becomes a casualty of war, then the loyalist has suffered a degrading moral or spiritual loss. The theme of such degradation recurs when Royce castigates the settlers of California for depriving its indigenous peoples of their fundamental rights: “The conqueror of a country does not, by virtue of his conquest, either dispossess private land-owners, or deprive the inhabitants of any other of their private rights,” 13 an iteration of Locke’s view. In couching the justice of war in terms of the defense of people’s right to their loyalties, Royce agrees with Michael Walzer and other contemporary just war theorists who identify the defense of rights as the sole justification for war—in Walzer’s words, “The defense of rights is a reason for fighting. I want now to stress again, and finally, that it is the only reason.” Royce’s most signal contribution to just war theory is to the component I have coined as jus ad pacem which concerns the prevention of war and the maintenance of peace. Many schemes for the prevention of war and the maintenance of peace have been proposed over the years. One of the earliest is Leibniz’s. Leibniz, though remembered and honored now almost exclusively as a philosopher, logician, and mathematician, saw himself principally as a jurist and diplomat. As court librarian and councilor to the Elector of Hanover, later George I of Great Britain, Leibniz sought valiantly through his tireless negotiations to bring about peace among the nations. He proposed establishing an international league under the aegis of the Holy Roman Empire for settling their political disputes under the rule of law. Some years later, Kant published in 1795 another irenic proposal under the title of Toward Perpetual Peace. Like Leibniz, Kant proposed establishing a league of nations through which conflicts among them might be adjudicated in court, not settled on the battle field. Peace proposals have been typically advanced after particularly devastating wars. Leibniz’s, for example, came in the shadow of the Thirty Years’ War, concluding with the Peace of Westphalia of 1648, which he declared “the foundation of the Peace of all Germany, and, as it were, the Palladium of the People.” 14 Kant’s proposal came in a century of endless wars. And Woodrow Wilson’s peace proposal, his Fourteen Points unveiled at the Paris

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Peace Conference of 1919, came in the aftermath of the First World War. However, all these pacific proposals came to naught. A century of warfare followed on the foot of Leibniz’s proposal, the Napoleonic Wars on Kant’s, and the Second World War on Wilson’s. Wilson’s Fourteen Points, signficantly, was largely influenced by a proposal for peace published as War and Insurance, of which Wilson possessed two copies. It was written by Royce, a close friend of Wilson’s. The catalyst for Royce’s proposal was the First World War. On August 27, 1914, Royce addressed the Philosophical Union of the University of California at Berkeley. The original address bore the title, “The Spirit of the Community.” However, in response to the outbreak of war, he revised his remarks under the new title, “Interpretation of the Present Crisis.” Published in the following year as War and Insurance, it proved so popular that a second edition appeared some two days later. So attractive was Royce’s proposal for peace, that the World Insurance Congress invited him to become a member of its committee sponsoring the Peace Day Exercises at San Francisco in 1915. With his letter of acceptance of February 10 of that year, Royce enclosed a manuscript entitled, “Memorandum on International Insurance.” Therein Royce sought to impress the members of the Congress with the urgency of enacting his peace plan and enjoined them to use their expertise in doing so. Seeking further avenues for the publication of his peace proposal, Royce composed a piece for The New York Times (July 1915). This article was reprinted, with slight revisions, as the chapter, “The Possibility of International Insurance,” in Royce’s seminal study of international cooperation, The Hope of the Great Community (1916). Clearly, his insurance scheme for world peace had become for him an idée fixe. What might explain Royce’s choice of insurance, and not, say, banking, as a way of promoting peace among nations? One reason is Freudian. Royce’s biographer, John Clendenning, suggests that an insurance executive served as a father figure of sorts for Royce: “The concept of a nation protected by an insurance corporation suggests uniquely the kind of protection that an almost helpless child demands of his father, the protection that Royce, in his earliest years, was denied. As we have previously seen, Royce sought and found this relation in his friendship with George Buchanan Coale, and it is not entirely irrelevant that Coale was by profession an insurance executive.” 15 Another reason is that insurance, by the turn of the twentieth century, was generally recognized as a viable business. This was due in no small measure to its reliance on statistics. Statistics, a sophisticated branch of mathematics very closely identified with the scientific method, provided the basis of the actuarial science that allowed insurance professionals to calculate risk by applying statistical procedures. The use of statistics, Royce reasoned, would bring a measure of predictability to the otherwise unpredictable course

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of human events. Instead of basing his peace proposal on political and juridical schemes derived from international law, Royce bases it on practical business principles, which has the merit of being apolitical. He combines the science of statistics with the principles of insurance as a means to crafting a scheme for international peace. INSURANCE FOR PEACE Applying the principles of insurance to international relations, Royce proposes that “a group of nations should form an organization for the mutual insurance of its members against any kind of risks.” This organization would be administered by “a Board of Trustees, with powers and duties which would be in the main fiduciary and with no political powers or obligations whatever.” 16 It should be clear that the administrative board he envisioned would belong exclusively to the realm of business, having neither political nor juridical authority. This means that Royce had in mind not a federation of nations or international court but an international corporation, a de facto league of nations. The membership of the board would be international, made up of representatives from the nations making up the insurance organization. These members would be compensated for their services from a trust fund. Their conduct would be guided by clearly stated rules assented to by all the participating nations; the amendment of these rules would be subject to the assent of the nations involved and might not curtail rights already conferred by currently existing rules. However, allowance would be made for establishing rules, when necessary, to regulate the conditions under which a nation could relinquish its rights under the insurance plan. The fidelity of the board to its trust and administrative rules is directly related to the character, competence, and experience of its members; the manner of their selection; and the public nature of all its rule-bound proceedings, deliberations, and official acts. Apart from the disposal of funds and honoring claims, the board would concern itself with the interpretation of contracts (insurance policies, trust agreements, and the like). Whenever controversies arose, it would have complete autonomy in arbitrating disputes over the insurance rights acquired or forfeited by any insured nation. The board would not be answerable to any nation, and any of its decisions relating to matters of insurance would be final. Importantly for Royce, this board would be politically neutral. The board was to be entrusted with an enormous fund drawn from the contributions of insured nations. The fund, deposited in a traditionally neutral state like Switzerland, would provide member states compensation for losses and be invested in the insured nations in order to minimize the risk of seizure

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by a hostile power. Any nation, no matter its history or current status, would be eligible to join this international organization for mutual insurance. Royce’s scheme of international insurance was intended to prevent war by offering disincentives to a would-be aggressor nation. If an insured nation were to lose sovereignty in any manner, be it by revolution or incorporation into some larger federation, then the board would declare that nation “dead,” thereby causing its insurance rights to lapse. The aggressor nation would, in fact, forfeit its own contributions to the general fund and so be ineligible to receive any compensation for losses it might incur by declaring war. In sum, all these stipulations were meant to act as a disincentive for insured nations to initiate conflict. But what about those nations refusing to subscribe to international insurance, and then, having no investments to lose, might be tempted to attack others? The analogy is to those in our day who do not belong to the United Nations and are not signatories to the Geneva Convention. Important diplomatic initiatives are undertaken and international law imposed without their participation; Royce’s scheme was so conceived as to remain efficacious without the participation of every nation. Nations could be insured against any kind of risk because the economic impact could be quantified and redressed. These risks include, on the one hand, human disasters like wars and revolutions and, on the other, natural disasters such as earthquakes, volcanic eruptions, violent storms, floods, famines, and epidemics. In the event of a calamity, the insured nation would have sole jurisdiction over how the insurance money was distributed. Royce hoped that his proposal would be acted upon immediately, even though the outcome of the War was uncertain. To make his scheme more practical, he devised an idea for financing his insurance fund. The victors, whoever they were, would demand from the vanquished a single indemnity to be used to compensate the losses of involved nations. Remaining monies would return to the insurance fund: Let them [the victors] demand one indemnity from all the vanquished. When it is paid, let the victors at once begin and actively establish the first mutual international insurance company against national calamities, including wars. Let them devote this whole indemnity to forming the initial fund of this company. Let them deposit the fund with the trustees, and under the formal care of Switzerland or of Sweden. Then let them draw up their rules, and thenceforth invite all sovereign states, great or small, including the vanquished states, to insure by payments and enjoy all the advantages of the insurance. . . . It will henceforth be the fund of the community of all mankind. 17

Royce’s vision of universal peace through international insurance falls generally within the tradition of the irenic proposals of Leibniz and Kant. Royce based his proposal on an extant institution, the insurance industry, whereas

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Leibniz based his on the established political order of the Holy Roman Empire, and Kant his on the foundation of law. Where Royce separates himself from his predecessors is his faith that a community of humankind, of the sort envisioned by the Stoics and the British Idealists, might emerge within the framework of international commerce. For Royce, the path to peace lay through economics not through international law and politics. 18 Royce’s peace proposal has the distinct advantage over the others of bypassing political interests and juridical restraints and so perhaps bodes success in place of the others’ failure. Thus the United Nations’ quest for peace has been thwarted by the political self-interest of its member states, and international law has proved ineffectual in settling international conflicts. Royce’s peace proposal, though amounting to a jus ad pacem designed as it is to prevent war, is no less a contribution to jus post bellum insofar as it provides a mechanism for the establishment of a just peace after war, thereby showing the connection between them. His method of indemnification, for instance, is novel, making financial redress the purview of the trustees of the international insurance fund. This method is intended to avoid penalizing innocent civilians by imposing reparations for wars that they had perhaps opposed. It also lessens the burden of recompense on the vanquished aggressor nation. Royce realizes that the failure to address seriously the challenge of jus ad pacem might lead to a continuation of hostilities or sow the seeds of a future war. Here he was prescient. One thinks of the Paris Peace Treaty of 1919, which imposed punitive and politically motivated sanctions on Germany involving significant territorial concessions and excessive reparations. This kind of policy materially contributed to the rise of a bellicose National Socialism and the Second World War. Royce believed that the close of the First World War would be a propitious time to implement his insurance scheme for peace. Yet, he had doubts that the “nations, now absorbed in greed and in rivalries . . . [could] be induced to invest their funds in so prodigious and humane an undertaking” as his international insurance scheme. Royce’s framing the justice of war in terms of loyalty and his proposal for peace though insurance are, I believe, significant contributions to the contemporary discussion of just war theory. His making his ethical principle of loyalty to loyalty as the basis of the justice of war has two conspicuous merits, noted by Jason Bell. One is that it allows him to merge jus post bellum with jus ad bellum. On his view, the aim of a just war is the defense of loyalties threatened with destruction by an aggressor nation; the aim of a just peace is the restoration of loyalties shattered in war: And here Royce’s theory is especially useful for bridging the divide between theories of “just war” and theories of “just peace,” and for using careful interdisciplinary, provincial and transnational standards in order to determine

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Royce’s establishing the continuity between these two components of just war theory agrees with Brian Orend’s insight that the four components of just war theory, though conceptually distinct, are actually different phases of a continuous process. And in affirming peace as the ultimate end of war, Royce is in agreement with Aristotle, Augustine, and Vitoria. A second merit of Royce’s basing his theory as to the justice of war on the principle of loyalty to loyalty is that national loyalty, as expressed by a nation’s right to self-defense and secure borders, is an insufficient criterion in deciding whether to go to war. A wider system of loyalties ought to be considered: Royce’s . . . approach is especially useful for its broader critical measure, by which the worth of war loyalties is measured by their coherence to the whole world of loyalties, rather than in themselves, in dyadic love of our nation’s own cause and hatred of our neighbor’s cause. Here, the value of war “in itself” is not the only measure, such that the “war question” can be decided on an a priori basis, without reference to the specific facts of the case, meaning that we merely need decide once and for all whether we ought heed or oppose our nation’s or our people’s call to arms. 20

Royce’s scheme of international insurance for peace failed to be implemented. Its nearest political and financial relative is the Marshall Plan (The European Recovery Program) of 1948 that financed the rebuilding of Germany and the rest of Europe. In reconstituting a defeated foe, as well as other nations devastated by war, the Marshall Plan pays fealty to Royce’s peace proposal based on international insurance. According to Jonathan Simon, “Royce anticipated the role the United States played through the Marshall Plan in post-World War II reconstruction in Europe. The provision of millions of dollars in reconstruction funds has been widely credited with leading Western Europe to remain solidly committed to capitalism and liberal democracy during the Cold War.” 21 Royce’s scheme of international insurance has significance beyond its promise of preventing war, promoting peace, and furthering the cause of the Great Community. Simon believes that Royce’s “advanced sociological and philosophical perspective that saw insurance not as simply a god-like technology but as a process of government and human social organization” has important implications for international relations. After the attacks of 9/11,

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which like Germany’s invasion of Belgium in 1914 disrupted the previous world order, Royce’s scheme of international insurance provides a model, thinks Simon, for expanding the ties of loyalty among peoples so as to strengthen international security: Just as Royce in 1914, looked to the molecular changes in the European nations who then found themselves in combat to discern a future structure of global security, we need to begin a discussion now of what kinds of social practices hint at new kinds of loyalties. . . . Today, standing on the other side of the great twentieth century expansion of insurance, we need to consider both how to get more out of twentieth century models of insurance, and simultaneously to look beyond for ways to manage risk beyond insurance. The path toward both objectives leads through greater attention to Royce’s notion of insurance. 22

Finally, Royce’s general reflections on war and peace contain the seeds of what Andrew Fiala designates “practical pacifism.” This brand of pacifism permits war, but only in the direst circumstances. Given the difficulty of ascertaining whether a war is justified, and the jingoism, xenophobia, and fear that perceived threats to national security typically inspire, leaders entrusted to declare war must earnestly reason together to avert armed conflict. Bell summarizes Fiala’s practical pacifism as follows: Practical pacifism differs from absolute pacifism in that Fiala writes that war can be justified with good evidence, but given the modern condition of confusion and intentional deceit in presenting the case for war to the public, such evidence is exceedingly difficult to come by, and peace is to be practically counseled wherever the case for war is not certain. For Fiala, practical pacifism helps nations critically examine calls for war while permanently representing the enduring value of peace as being the highest, most satisfactory, most harmonious goal—an exemplar of loyalty to loyalty itself. 23

NOTES 1. Josiah Royce, “The Practical Significance of Pessimism,” in Fugitive Essays by Josiah Royce, ed. J. Loewenberg (Cambridge, MA: Harvard University Press, 1920), 152. 2. Josiah Royce, “Some Relations of Physical Training to the Present Problems of Moral Education in America,” in Race Questions, Provincialism, and Other American Problems (New York: Macmillan Company, 1908), 244–45. 3. Josiah Royce, The Christian Doctrine of Life, in The Problem of Christianity (New York: The MacMillan Company, 1913), 1: 68–69. Royce treats loyalty in several places. His most sustained and systematic treatment of it occurs in The Philosophy of Loyalty (New York: Macmillan Company, 1908). He gives a summary treatment of it in the essay, “Some Relations of Physical Training to the Present Problems of Moral Education in America.” 4. Royce, “Some Relations of Physical Training,” 234. 5. Josiah Royce, The Sources of Religious Insight (New York: Charles Scribner’s Sons, 1912), 203.

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6. John Herman Randall, Jr., “Josiah Royce and American Idealism,” The Journal of Philosophy LXIII, no. 3 (February 3, 1966): 64. 7. Jason Bell, “The Relevance of Royce’s Applied Ethics: Studies in War, Business, and Environmental Ethics” (PhD diss., Vanderbilt University, 2009), 102–03. 8. Josiah Royce, “The Duty of Americans in the Present War,” in The Hope of the Great Community (New York: The MacMillan Company, 1916), 11. 9. Josiah Royce, “The Hope of the Great Community,” in Hope of the Great Community, 32. 10. Royce, Sources of Religious Insight, 202. 11. Royce, Philosophy of Loyalty, 287–88. 12. Bell, “The Relevance of Royce’s Applied Ethics,” 74. 13. Josiah Royce, California, From the Conquest in 1846 to the Second Vigilance Committee in San Francisco: A Study of American Character (Boston: Houghton, Mifflin and Company, 1886), 473. 14. G. J. Jordan, The Reunion of the Churches: A Study of G. W. Leibnitz and His Great Attempt (London: Constable & Co. Ltd., 1927), 13. 15. John Clendenning, The Life and Thought of Josiah Royce, rev. ed. (Nashville: Vanderbilt University Press, 1999), 364. 16. Josiah Royce, War and Insurance: An Address Delivered before the Philosophical Union of the University of California at its Twenty-Fifth Anniversary at Berkeley California, August 27, 1914 (New York: The Macmillan Company, 1914), xi, xx. 17. Ibid., 79–80. 18. Royce’s economic path to peace is consistent with natural law since, like natural law, it has human flourishing through peace as its goal. 19. Bell, “Relevance of Royce’s Applied Ethics,” 103. 20. Ibid., 102. 21. Jonathan Simon, “Peace and Insurance: Recovering the Utopian Vision of Insurance in Royce’s War and Insurance,” Connecticut Insurance Law Journal 10, no. 1 (2003): 64. 22. Ibid., 52, 71–72. 23. Bell, “Relevance of Royce’s Applied Ethics,” 80.

Afterword Peripheral Matters

In this afterword I deal with three topics, two of which are peripheral though relevant to just war theory, namely, cyber warfare and intelligence gathering. They are peripheral because classic just war theory does not address them; for one thing, the prospect of cyber warfare is only a recent development. The third topic, essential to just war theory, is a critique of the whole enterprise of philosophical ethics. CYBER WARFARE The precepts of just war theory have had to take into account forms of unconventional war like guerrilla wars and terrorist attacks. Similarly, they will have to take into account a newly emergent kind of war, namely, cyber warfare. Though some skeptics claim there is no such thing; according to them, what goes under the name of “cyber warfare” is nothing more than an expanded form of espionage. This is the opinion of Thomas Rid, an expert in security studies at King’s College, University of London, who is averse to the term “cyber warfare,” dismissing it “as merely a new, inflated form of espionage.” The opinion of George Lucas, however, is that the prospect of cyber warfare is real and an imminent threat that must be seriously addressed. An example of a cyber attack, of the kind that would occur in cyber warfare, is described below: In the summer of 2010, a German industrial computer security expert, Ralph Langner, reported that a disturbing form of malware [nicknamed “Stuxnet”] had burrowed its way into the supervisory control and data acquisitions sys227

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Cyber warfare, as its name suggests, would occur in cyber space which is “a unique environment in which electrons and photons, through interactions determined by binary bits of computer code, dictate the form and structures of ‘objects’ and ‘events.’” Cyber warfare might consist of attacks on civilian infrastructure and military installations with catastrophic results. Lucas describes the forms that such attacks could take: Attacks on air- and ground-traffic control systems could, for example, cause freight trains loaded with chemicals and flammable materials to derail, or planes to collide in mid-air or fall out of the sky. Electric power grids could be shut down, and hydroelectric generators could be made to spin out of control and explode . . . destroying dams and causing massive flooding. Chemical plants might begin to leak poisonous fumes into nearby cities. The resultant “cyber Pearl Harbor,” or “cyber Armageddon,” could lead to death and destruction on the scale of a thermonuclear war. 2

Lucas makes a distinction between cyber attacks and cyber crimes. Cyber crimes, like that involving the Stuxnet malware, have no ostensible political purpose; whereas cyber attacks would be carried out, typically by states, to change the governance of nations. This is an important distinction since on it depends what kind of retaliatory response is appropriate—a police response in the case of cyber crimes, a military response in the case of cyber attacks. Lucas calls cyber attacks, were they to occur, “state-sponsored hacktivism” and describes them “as constituting a revolutionary new kind of warfare, carried out without regard for existing international law or the customary norms of responsible state behavior.” 3 Lucas warns that a danger of cyber warfare is that it “not only blurs the lines between war and ‘mere’ criminal activities, but that such a state of war also becomes increasingly difficult to distinguish from peace. The prospect of cyber warfare on this understanding renders existing norms of ethical and legal conduct highly contested, and their practical application to situations of grave conflict extremely difficult.” A characteristic of state-sponsored hacktivism is that it is “the cyber equivalent of irregular or unconventional warfare in the real world, a kind of armed conflict that has currently all but displaced notions of conventional warfare as Carl von Clausewitz envisioned it.” 4 Now on the assumption that cyber warfare is an actual form of warfare and not merely an expanded form of espionage, is ethics in the form of just

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war theory applicable to it? It would seem not, since it involves “statesponsored hacktivism” which is “carried out without regard for existing international law or the customary norms of responsible state behavior: “Doesn’t the very concept of ‘unrestricted warfare’ entail a war without rules, constraints, or restrictions” such as those imposed by ethical norms? Randall Dipert replies in the affirmative. In his “The Ethics of Cyber Warfare,” he contends that “objects and events in the cyber domain are so unique, and so utterly dis-analogous to anything we encounter in the everyday physical world, as to obviate both the relevance and applicability of both international law and the ethical precepts expressed in the just war tradition and just war theory. Neither, . . . , has the ability to adjudicate conflict in the cyber domain.” 5 However, though it is true that the objects and events in cyber space are unique and quite unlike anything in the physical world, yet it is human beings inhabiting this world that would control and direct cyber wars and could be legitimate subjects of legal and moral adjudication. Michael Schmitt, in his foreword to Cyberwar: Law and Ethics for Virtual Conflicts, contends that there is a consensus among experts that contemporary jus ad bellum and jus in bello are indeed applicable to cyber warfare. 6 Lucas agrees with this, and has in mind a “new theory of just war theory” grounded in “a broader type of moral discourse.” This broader type of moral discourse would identify and justify exceptions to conventional moral norms and so might be variously called “the morality of exceptions,” “the ethics of exigencies,” “a plea for excuses,” or a “request for exemptions.” 7 Lucas coins the term jus in silico (“justification of cyber conflict”) to refer to the application of ethics and just war theory to cyber warfare. Lucas applies the precepts of jus ad bellum to cyber warfare as follows: With regard to what we might then term jus in silico or the “justification of cyber conflict,” we would expect that nations or other agents would refrain from engaging in such conflict (presuming they are not engaged in criminal activities) unless there was a compelling and justifiable cause for doing so. They would likewise refrain from engaging in cyber conflict, save as a last resort (or else, as next-to-last resort before engaging in conventional armed conflict). They would do so only with the proper authorization and under the supervision of recognized and responsible state authorities. Finally, nations would only engage in cyber conflict that was, or was likely to prove, proportionate to the harm they had suffered or to the grievance which they sought thereby to address.

Here he applies the precepts of jus in bello: And when nations turned to actually carrying out such conflict, they would target only legitimate enemy military or state targets and would refrain from deliberately targeting civilian persons or objects, in keeping with existing laws of armed conflict. They would exert only as much cyber force as was neces-

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sary to achieve their aims and would seek to prevent or limit the collateral harm or damage that might be otherwise inflicted on public infrastructure or innocent third parties not engaged or implicated in the conflict. 8

Lucas, in thus applying the principles of just war theory to cyber warfare, has, I believe, made the case for the application of ethics to this potential form of warfare. INTELLIGENCE GATHERING Intelligence and Ethics Tony Pfaff maintains that intelligence gathering is a necessarily moral activity because it serves the moral end of national security: “The work of the professional intelligence officer, because it is indispensable to the national security, which is a moral obligation of the state, is thus itself a moral obligation.” In meeting their moral obligation, professional intelligence officers ought to act morally, or out of respect for human rights. Echoing Kant, Pfaff expresses this injunction in terms of honoring the intrinsic value of human life and the inviolability of human dignity: “Thus intelligence professionals, like military ones, must always take care not to act in such a way that disregards the notion that individual human life and dignity are valuable for their own sake and that people should be treated as an end in themselves and not merely as means.” 9 It is fitting that intelligence agencies with their inextricable involvement in international politics and law should also subscribe to the indefeasibility of human rights. Intelligence and Just War Theory Intelligence agencies should conform to the moral strictures prescribed by just war theory, as should the military, because intelligence gathering itself, particularly clandestine operations, is a form of covert warfare—to parody Clausewitz, espionage is war carried out by different means. There are several reasons for this: One is that insofar as the military in its battlefield operations relies on intelligence, intelligence gathering is unavoidably part of its planning and so part of the war effort. A second reason is that espionage itself is a form of aggression which, if exposed, might disrupt diplomatic efforts towards ensuring peace with hostile nations and weaken the ties with friendly ones thereby threatening to turn them into adversaries. John R. Chomeau and Anne C. Rudolph make the case for why the intelligence community should abide by the precepts of just war theory: “We have determined that the most sensible basis for justifying the use of intelligence operations corresponds with the general principles for the use of military power in the

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protection of the nation-state. Thus, we have turned to Just War theory to provide a framework for establishing moral principles for intelligence.” 10 However, making intelligence agencies abide by the precepts of just war theory is problematic: There is the question of whom or what qualifies as a legitimate target of espionage. Soldiers in combat may directly target only enemy combatants, never civilians, but intelligence officers must sometimes target the latter and perhaps put them at risk, which is a matter of moral concern. However, if the prospective harm to civilians is not intended but accidental, putting them in harm’s way is morally justifiable on the principle of double-effect. Moreover, intelligence agencies may target for surveillance even a friendly nation posing no threat to national security but withholding information of vital concern to the targeting agencies’ nation. This, though, may be justified by the standards of just war theory. Withholding such information, though not an overt act of war as such, might be construed as a lowlevel act of covert aggression and so justifying reciprocation in the form of espionage—equally an act of covert aggression—to acquire that information. A nation withholding secrets critical to the interests of another should not resent espionage against it to secure them. In turn, the nation conducting that espionage should not resent being treated in kind if it harbors secrets crucial to the well-being of a foreign state. Nations share expectations about what other nations might or must do to preserve their interests if these expectations are rational. Indeed, such shared expectations set the framework for international relations and are embodied in treaties and covenants. It is a matter of good faith on the part of nations that agreed-upon standards of behavior will be met by all. Though targeting either a friendly or hostile nation harboring secrets vital to the national interest is morally and prudentially justifiable on just war theory, targeting a nation, hostile or not, not harboring them is, of course, not justifiable. 11 The national interest broadly interpreted, preeminently national security but also including economic prosperity, is the sole criterion upon which the morality of an act of espionage ought to be judged. If it fails to meet it, then it is not morally justified. Thus, an act of espionage against either a foreign government or private institution in order to promote the interests of, say, a private corporation by stealing for it industrial secrets would not be morally justifiable, unless that corporation was providing essential goods and services to the government for the purpose of national defense. “Immoral” Practices A problem to be addressed in discussing the ethics of collecting intelligence, particularly covert and clandestine operations, is reconciling the routine practices of intelligence agencies with commonly accepted moral norms. As part

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of their job description, intelligence officers must lie, deceive, blackmail, and bribe, practices condemned by conventional moral codes: Professional standards require intelligence professionals to lie, hide information, or use covert tactics to protect their “cover,” access, sources, and responsibilities. . . . The CIA expects intelligence officers to teach others to lie, deceive, steal, launder money, and perform a variety of other activities that would certainly be illegal [not to mention immoral] if practiced in the United States [and elsewhere]. They call these tactics “tradecraft,” and intelligence officers practice them in all the world’s intelligence services. 12

Lying and deception are indispensable tools of the modus operandi of intelligence officials. Though the least so, these practices are nevertheless morally objectionable; for Kant, proscriptions against them are moral absolutes. However, lying and deception in the course of intelligence gathering are justified if they are construed as acts of self-defense against attacks whether immediate or remote and thus permitted by just war theory: “Honesty ought not to allow the creation of an emergency by the enemy, when deception can forestall or aver it. . . . Whenever it is right to resist an assault or a threat by force, it must then be allowable to do so by guile.” 13 People may be averse to such breaches of the moral code in the name of national self-defense because they lose sight of their ultimate justificatory end: “Clearly, the ‘means’ used in pursuit of the national interest cannot be morally examined in isolation. The ‘ends’ of national survival as a secure and independent republic justify measures in some circumstances which would be unjust in others.” 14 This, then, is an overtly utilitarian justification. This being said, though, dishonest means should be used only if honest ones are to no avail; and if there is no alternative to engaging in dishonest practices, then they should be engaged in only to the extent that they yield the information desired. Now the moral justification found in just war theory for the killing and destruction in war may be used to justify the more egregious practices of intelligence collection. This makes sense since intelligence operations are a form of covert warfare. The intelligence professional and the military officer have similar roles. The authorization for their work comes from government, and their common aim is protecting their fellow citizens from foreign aggression: “In a sentence, the intelligence professional, like the military officer, protects innocents against aggression.” 15 Thus “much of the justification for the deceiving and harming that intelligence professionals must do in the course of supporting a military at war [and a nation at peace] will be justified by the same sets of reasons that justify the killing and destruction that militaries must do in the course of fighting the war.” 16 This means, of course, that intelligence professionals must scrupulously observe the strictures of jus in bello, one being the principle of proportionality stipulating that only enough force should be used to achieve a military objective but no more. As

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applied to intelligence operations, this means that only those violations of the moral code deemed sufficient to achieve a goal should be permitted; excessiveness must be avoided: “This [the principle of proportionality] constitutes the foundation for limiting the activities of combatants in war through what Michael Walzer refers to as ‘the war convention.’ It should also constitute a foundation for bringing espionage activities under certain limitations.” 17 More generally, “clarity about what is being done, and whether or not it is proportional to the threat and proposed objectives, is a key element in sound policy making.” 18 Covert Political Action One morally questionable practice is covert political action. A covert political action is interventionist insofar as “it aims at influencing the course of political life in the target state by inducing or preventing a change in government or policy.” 19 It thereby violates the sovereignty of the targeted nation, and risks disrupting its citizens’ lives and the delicate balance of international relations. There are different forms of covert interventionism—propaganda, political assassination, support for armed rebels against a regime, financing organizations committed to overthrowing a government, rigging of elections, corruption of legislatures, and political manipulation. Covert political action is justifiable in response to international exigencies. Thus in 1954, facing the threat of world-wide communism, Dwight Eisenhower appointed a panel to assess the propriety of covert political action as a tool of foreign policy. It reported, “Hitherto acceptable norms of human conduct do not apply. . . . We must develop effective espionage and counterespionage services, and must learn to subvert, sabotage and destroy our enemies by more clever, and more sophisticated means than those used against us.” 20 This “fight fire with fire” justification is a “realistic” one reflective of realpolitik thinking. However, the question remains as to whether covert political action is morally justifiable. With respect to answering this question, “a standard for selection of covert actions that are just can be developed by analogy with the longstanding efforts to differentiate just from unjust wars.” 21 There are two justifications for covertly intervening in the affairs of a foreign nation. One is to protect the rights of its citizens, particularly if some of them are enslaved or the victims of genocide. The justification for covert political intervention on these grounds is the same as that for military intervention for humanitarian reasons. The second justification is that it is in the interest of the nation, e.g., national security, on whose behalf the covert intervention is done. However, what lies in a nation’s real interest is not always clear and must be weighed against the competing interests (no less legitimate) of other nations. Moreover, something may be in the national

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interest, e.g., access to a cheap supply of oil, without justifying covert action to ensure it. In contemplating covert intervention, the following factors ought to be considered: One is whether the value of the interest justifies the action intended to protect it. A second factor is the degree of harm that might redound to innocent citizens in the nation targeted for covert action. A third is the immediacy of the threat to the nation’s interests that the action is designed to thwart. And a fourth factor is the availability of other means such as diplomacy to achieve the same end. A particularly odious form of covert political intervention is manipulation by intelligence operatives of the citizens of a foreign nation. Manipulation is that “form of power that employs deception of those over whom power is exercised. It is a way of getting what you want despite the possible resistance of others.” It is doubly insidious since it does not merely oppose another’s will but turns it against himself—“by attempting to hide the exercise of power, manipulation seeks to enlist a person’s capacity for self-determination in the service of goals that are not, or not necessarily, the person’s own”; and because of its secrecy, manipulation leaves one especially vulnerable to it. A paradigmatic example of such manipulation is provided by Charles R. Beitz: Consider, for example, the CIA’s attempts to manipulate the Chilean elections of 1964 and 1970 by funneling funds to conservative forces in order to prevent victories by parties of the left. . . . The United States acted in ways calculated to cause the normal processes of social decision making to produce outcomes that might not otherwise have taken place. Because the U. S. role was kept secret, the Chilean people were defenseless against it; for example, in deciding how to vote, they were unable to compensate for the influence on their attitudes and beliefs of U. S. interference in their domestic political life.

This example is instructive because it exposes the twin evils of manipulation. One is its subversion of a person’s autonomy, for Kant, a constituent of his/ her dignity. Another is its assault on the very ethos of democracy. Democracy presupposes the ability of citizens to participate freely and knowledgeably in political decisions. It demands openness in public affairs to ensure accountability on the part of public officials and check their abuse of power. Covert acts, by definition, are secret and so not open to public view and scrutiny. Consequently, Gregory F. Treverton maintains that secretive covert acts are undemocratic in principle. This notwithstanding, secrecy is not necessarily antithetical to democracy. Democracy, broadly conceived, means that governments reflect the will of its citizens and that constitutional limits on the power of governors are in place and enforced. This conception of democracy is not incompatible with governmental secrecy, for example, in such areas as “administration of justice, macroeconomic policy, and national security policy.” 22 These are not subject to public scrutiny and control nor

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dependent on public referenda. Nor should they be since making them so would be counterproductive. Indeed, secrecy is necessary to preserve, and advance the aims of, a democratic polity. Yet this does not mean that there should not be restrictions on secrecy, or the lack of legislative oversight of secret operations and legal safeguards against their abuse by their practitioners. To assess the relative morality of various covert practices, Loch K. Johnson proposes a “ladder of escalation” in ethical concern. On the lowest level is “limited concern” such as intervention in foreign affairs to ensure honest elections. Next on the ladder is “significant concern” which is manipulation such as rigging elections or supporting forces opposed to a regime. Further up is “serious concern” including deception, nonlethal sabotage, and economic disruption. Highest up on the ladder of escalation is “grave concern” such as the deployment of lethal force to effect regime change. 23 Interrogation/Torture Interrogation, a form of manipulation, has been characterized by William Johnson as a “dirty business,” 24 and as a former CIA counterintelligence officer he should know. One reason is that interrogation can easily slide into torture. The Encyclopedia of Ethics defines “torture” as “the deliberate infliction of violence, and through violence, severe mental and/or physical suffering upon individuals.” 25 There is considerable evidence that torture does not yield useful information, a utilitarian argument against it: “It is a well-established fact that information gained under the duress of torture is rarely reliable.” Furthermore, the practice of torture offends the moral sensibility of civilized people: “In fact, its practical benefits are so few and its assault on our moral sense is so great that torture is almost universally condemned.” 26 Thus its proscription by the United Nations’ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 27 to which, incidentally, the United States is a signatory. As distasteful and morally abhorrent the practice is to our moral sensibilities, torture nevertheless may be, in very rare instances— and, I emphasize, very rare instances—morally justified and for the same reason that war, equally distasteful and abhorrent, may be morally justified under the precepts of just war theory. Just war theory may apply as well to the moral justification of torture as to war. Its moral justification can take either of three forms, viz., utilitarian, deontological, and appeal to human rights. Its utilitarian justification is thousands of lives would be saved if the information elicited by torture prevented an imminent catastrophic attack. The utilitarian might invoke the principle of supreme emergency, a tenet of just war theory to justify the suspension of jus in bello. Suppose it is known for a fact that a terrorist group not only has stockpiled weapons of mass

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destruction, viz., nuclear, chemical, and biological agents, but also has plans to deploy them, and its attack is imminent. This would qualify as a supreme emergency. Suppose that the only way to elicit information that might prevent this attack is by torturing a captured terrorist who is known for certain to have that information. Consider the “ticking time-bomb” scenario where a captured terrorist knows the location of, say, a nuclear device which is programmed to go off within the hour and immolate a city—an imminent threat. Torturing the suspect would probably yield the information that would save the city from immolation. It would seem that in such a case—rare, to be sure—torture would not only be expedient but morally justified as well. The deontological justification of torture in the direst of circumstances is not so obvious. According to Kant, the categorical imperative demands that we should treat other persons never as the means to some end—pawns, as it were, in some strategic game—but as ends in themselves, that is, according to their inherent dignity or worth as persons. Thus it would seem morally wrong on this deontological principle to use the terrorist suspect merely as a means to eliciting information in a particularly horrible way. On the other hand, for Kant, when one acts one is in effect universalizing a maxim or principle, namely, that all other persons are permitted to act in just this way. Consequently, a terrorist complicit in a plot to murder thousands of people is saying, in effect, that all others are permitted now to reciprocate by committing a similar act of violence against me—in this case, torture. Furthermore, to forbid the torture of such an individual for humanitarian reasons contradicts the very purpose of legal prohibitions against torture in the first place. Torture was prohibited to ensure protection of the innocent against such inhumane treatment. So, to forbid the torture of an uncooperative terrorist suspect who knows something that would prevent a horrific humanitarian catastrophe in the name of humanity would be counterproductive and inconsistent with the original intention of prohibiting torture since it would put the innocent at risk. Analogously, murder of the innocent is morally wrong. However, killing enemy combatants or executing murderers is itself not murder. Justifying torture by appealing to human rights is on the surface paradoxical. Does not torturing someone violate his/her right not to suffer? Jeremy Bentham asseverates that any sentient being, that is, one capable of suffering (including nonhuman animals) has the right not to have pain inflicted upon it gratuitously. The right not to suffer is an indefeasible or inalienable human right presupposed in all the international conventions and agreements proscribing torture. So how can an appeal to rights be made in the moral justification of torture when someone’s right not to suffer is being violated? First, it is not just the right not to suffer of the captive to be tortured that is at stake. There is also many others’ right to life, another indefeasible right, who will assuredly die if the information possessed by the captive is not

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forthcoming and acted upon. Arguably, a criminal, especially if his crime is a crime against humanity such as complicity in the murder of many civilians, forfeits certain of his rights. This is well understood in law. If I steal or murder, then I lose my right to freedom and, in some jurisdictions, my right to vote, and there is no moral objection to this forfeiture. Thus, a terrorist who refuses to divulge information that will save lives is violating their right to life. So, according to Kant’s dictum, he should be subject to the same maxim as he acts on towards others—it is permissible to deprive others of their right to life and so it is permissible for some, my torturers, to violate my right not to suffer. Michael Skerker, in fact, indirectly gives this Kantian argument against deferring to the terrorist’s right not to suffer: “Yet the criminal (e.g., the terrorist) does not have the right to his criminal secrets. . . . By violating his duties toward others, he looses others from an obligation to fully defer to his rights.” And according to another formulation of the categorical imperative, whatever I am willing to do to others I am willing to have done to me—if I will violence against others in the form of death then I am willing to have violence done to me in the form of torture. There is, then, a deontological justification for torture based on an appeal to human rights. Why should the criminal’s right not to suffer be considered but not others’ right to life—there is no justification for this preference. Second, not all rights are equal. The Second Amendment right to bear arms in the American Constitution does not have equal standing with the right to freedom of speech. One indication of this is that freedom of speech is recognized in virtually every bill and charter of human rights, but not the right to bear arms. It seems intuitively obvious, then, the right not to suffer— especially on the part of a criminal—does not have the same status in the hierarchy of rights as the right to life of the innocent. Alternatively, the right to life takes precedence over a right not to suffer since to violate that right is to obliterate one’s very existence whereas to violate one’s right to suffer (as serious as that is) does not. It is not self-evident, pace Patrick Henry, that death is preferable to life without liberty—in life there is still hope for future liberty and the possibility of realizing other values; but without life none of this is possible. We have, as Jefferson says, three inalienable or indefeasible rights, namely, to life, liberty and the pursuit of happiness. But, without life, the other two would be impossible. Yet, in choosing between respecting the right of the terrorist captive not to suffer and the right of others to life, we are faced with a dilemma. Either way someone’s right must be violated, either the right of the terrorist or the rights of the people who will be killed if he keeps silent. It is a classic case of you’re damned if you do and damned if you don’t. The problem is how to minimize the number of rights violated, or making sure that the right violated is not as important as the others.

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Now in claiming that in some situations one person’s right, e.g., the right not to suffer, might have to give way to others’, e.g., the right to life, we are not in principle abrogating any rights nor are we even committed to recognizing a hierarchy of rights. All rights remain standing as equally indefeasible but, in a situation of conflict between any two rights, then one takes precedence over the other. I shall explain this by invoking W. D. Ross’s concept of prima facie ethics. Abstractly and ideally considered, all rights are prima facie equally deserving of being honored. However, in real life they may come into conflict as when the right not to suffer conflicts with the right to life. In any such conflict, though, one right will emerge as intuitively more important than the other. Our intuition would probably tell us that the right to life trumps the right not to suffer. Therefore, Fritz Allhoff concludes “that torture can be justified, even if it entails rights violations, so long as we find ourselves in such a quandary that rights will end up being broken, whether torture occurs or not. In these situations, some rights violation is bound to occur regardless, so we might as well either serve the greater good or else aim to minimize the overall violation of rights.” 28 Needless to say, torture, though morally defensible on the grounds of utility, deontology, and the inviolability of human rights, should be used extremely sparingly and only in the rarest cases of supreme emergency. Allhoff lays down the following minimal conditions that must be met for torture to be justified: “[It] aims at acquisition of information [otherwise inaccessible], the captive is reasonably thought to have the relevant information, the information corresponds to a significant and imminent threat, and the information could likely lead to the prevention of the threat.” 29 If there is any doubt, however small, that the captive does not possess the requisite information, then under no circumstances should he be tortured for he may in fact not possess it. Moreover, the degree of physical pain or psychological distress applied to the captive must be just enough, no more, to elicit the desired information, thereby conforming to the principle of proportionality of just war theory. Obviously, torture for the sake of revenge or retribution and any gratuitous brutality should be strictly forbidden. And “other-directed” torture, or torture applied to someone other than the captive to induce his cooperation, should also be proscribed. Thus, an innocent relative or friend of the captive should never be tortured. Incidentally, the captive terrorist cannot claim immunity from torture as a prisoner of war since, being a criminal and not a legitimate soldier, he does not qualify for that status. However, a compelling case can still be made against the use of torture, even in situations of supreme emergency and under Allhoff’s restrictions. First, the so-called “ticking time-bomb” scenario, the strongest argument for legitimizing torture, is objectionable for two reasons. First, it is a highly abstract scenario which may be useful in theory to clarify the conflict between normative ethical positions on torture but would so seldom occur in

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actual life as to be negligible. Second, according to Christopher Tindale, justifiers of the use of torture who appeal to this scenario beg the question: Justifiers circularly conflate the success of an imagined instance of interrogatory torture with the conditions of justifying interrogatory torture. In the classic “ticking bomb” scenario, imagined interrogators know they have a terrorist and know he’s planted a huge bomb in a city and know that hundreds of thousands will die unless they torture the truth out of him. In reality, interrogators have a detainee whom they think is a terrorist but do not know if he’s planted a bomb, its size, and whether torture will reveal the bomb’s location in time to deactivate it. 30

Third, even if torture were justifiable in such a limited case, it would not be grounds for using torture as a matter of interrogatory principle: “a regime of torture is disproportionate to any information a given interrogation might actually reveal, because the routine practice of coercion involves too many broad social evils and its desired output of actionable intelligence is rarely achieved.” From the position of rule-utilitarianism, short-term benefits achieved by rare breaches of a moral rule, e.g., the use of torture in “ticking time-bomb” cases in violation of the general rule against torture, are outweighed by the long-term benefits of following the rule scrupulously. Fourth, the actual efficacy of torture in eliciting the information sought has not been empirically established. The only evidence that it is efficacious is merely anecdotal. Fifth, were torture officially sanctioned by law, though applied only by personnel trained in its methods with the intelligence community, it might foster corruption especially so if conducted in secrecy without the corrective benefit of oversight. There would be the temptation to apply it indiscriminately in cases other than those involving “ticking time-bombs” and to use it from motives of retribution and revenge or even political partisanship. Sixth, legally sanctioned torture risks brutalizing the torturers, especially those who may already have sadistic impulses, but even those who exhibit every sign of integrity and the absence of psychological disturbance. The infamous Stanford Prison Experiment led by Philip Zimbardo at Stanford University in 1971 documented how otherwise intelligent and decent people in an authoritarian setting where obedience is demanded can be induced to commit heinous acts against others. Seventh, torture might dispose its released victims to avenge their treatment by committing acts of terrorism against the government that authorized it, or render them so psychologically maimed that they are unable to resume a normal life. And eighth, the practice of torture with its secrecy and exercise of absolute, brute power over the interrogatee is inconsistent with and undermines democratic principles. Skerker maintains, “torture is fundamentally at odds with the principles of a democratic society, and this is reflected in the character of the institutions

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necessary for the perpetuation of torture. In resorting to its use in times of crisis, a democratic nation destroys what it means to protect.” 31 In light of the above critique, Skerker concludes that “coercive interrogation,” not to mention torture, “should be the last resort in a spectrum of interrogatory practices, and interrogation should not be the first or sole means of garnering intelligence.” 32 Assassination Like torture, state-sanctioned assassination of threats to the state like terrorists and foreign leaders is, on first face, morally reprehensible. However, can what Neil Livingstone calls euphemistically “state-sanctioned terminations” be morally justified? He contends that they can if the terminated are terrorists. He argues that assassinating a terrorist who intends harm against the state or its citizens is analogous to killing an enemy in war—both kinds of killing are forms of legitimate self-defense and thus do not violate the strictures of just war theory: “Just as it is not a crime to kill the enemy during wartime, so too should it not be regarded as a crime or a morally reprehensible act when a nation, acting in concert with its obligation to protect is own citizens from harm, seeks out and destroys terrorists outside its borders who have committed, or are planning to commit atrocities on its territory or against its citizens.” 33 Barack Obama’s authorizing the killing of Osama Bin Laden is an example of state-sanctioned assassination of a particularly vicious terrorist (though arresting him instead in order to interrogate him for information about his Al Qaeda network might have proven more useful in the end). However, Livingstone adds the caveat that assassination should be employed only as a last resort. Furthermore, Angelo Codevilla advocates, as a means of preventing war, the even more questionable state-sanctioned assassination of foreign leaders, forbidden by United States’ law: The military art, the very opposite of indiscriminate killing, consists of striking those people and things most likely to stop the enemy from continuing the war. Today, the specializing of weapons and tactics of war make it easier than ever to go after those whose death is more likely to stop the killing. Often, as in the Gulf War [1990–1991], there is no quarrel with the enemy country, only with its chief. In such cases, it is both futile and immoral to demolish a country in the hope that this will persuade the tyrant to give way. Why not kill the tyrant. 34

The prevention or stopping of genocide or enslavement of his own people might also justify the assassination of a foreign leader. Dietrich Bonhoeffer, the German Lutheran theologian who participated in an unsuccessful plot to

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assassinate Hitler in 1944, found theological as well as moral justification for that deed. However, there are compelling arguments against the assassination of foreign tyrants. It will not necessarily improve the lot of their people for someone as bad or worse might replace them. Tyrannicide, to be successful, must be accompanied by abolition of the regime which the tyrant represents, but this might entail war, the very thing that political assassinations were intended to prevent in the first place. A lesson of history is that political turmoil, like that produced by revolutions or political assassinations, can produce regimes worse than those replaced. Think for example of the Reign of Terror during the French Revolution or the Communist regime that supplanted Czarist Russia. Autonomy of the Intelligence Community Intelligence officials are concerned solely with the collection, analysis, and interpretation of information and not with the formulation and implementation of foreign policy. That analysis and interpretation must be objective and in no way influenced by political motives: “Analytical perceptions which have been distorted by policy preferences, political ideologies, and personal bias may obscure the facts,” 35 perhaps with disastrous results. With respect to the politicization of intelligence work: Almost all agree that it involves deliberately distorting analysis or judgments to favor a preferred line of thinking irrespective of evidence. Most consider “classic” politicization to be only that which occurs if products are forced to conform to policy makers’ views. A number believe politicization also results from management pressures to define and drive certain lines of analysis or substantive viewpoints. Still others believe that changes in tone or emphasis made during the normal review or coordination process, and limited means for expressing alternative viewpoints, also constitute forms of politicization. 36

A particularly egregious example of political interference with the work of intelligence analysts is the one reported by Andrew Wilkie who resigned from his position as senior analyst at Australia’s Office of National Assessments (ONA) in protest: Former Australian intelligence analyst Andrew Wilkie testified before a parliamentary committee examining the justification given by Prime Minister John Howard for Australia’s decision to join the war in Iraq. . . . Of all the Australian, British, and American intelligence analysts with direct knowledge of how intelligence was abused in the run-up to the war, Wilkie was the only one to resign in protest and speak truth to power. 37

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Ensuring objectivity in intelligence work means the analyst must “explore the issues fully, looking at and vetting all the available evidence and identifying where gaps, blindspots, or alternative scenarios exist.” 38 Devil’s advocacy should be the rule in the modus operandi of intelligence analysts. They should take a leaf from the scientist’s playbook, namely, allowing any interpretive hypothesis, however apparently compelling, to be falsified with evidence, and seriously entertaining alternative hypotheses. That the work of intelligence analysts should be free of any political bias is dictated by the American Constitutional principle of the separation of powers as well as demanded by justice. Plato in The Republic states that justice is fundamentally a matter of our working optimally in our employment or profession, for which we have some talent and expertise, by pursuing and achieving its distinctive goals, but not interfering with others’ work in which we are not skilled. For politicians to interfere with the work of intelligence analysts by, for example, insisting that intelligence reports be altered to fit their ideological biases, is to meddle in areas in which they have no expertise which is not only foolish and Unconstitutional, but fundamentally unjust no less. Whistle-Blowing What about the case of whistle-blowing intelligence officers, civilian or military, like Edward Snowden and Chelsea Manning, who betray their professional secrets to expose what they deem the malfeasance of government. Is this morally justified and protected by the American Constitution’s First Amendment guaranteeing the right to freedom of speech? If the betrayal through publication of secrets is indeed a threat to national security, then it is neither morally justified nor protected by the right of free speech. But if the betrayal does not constitute such a threat, then it is morally justified and warrants Constitutional protection. However, “national security” is a vague term, and it is not always clear what constitutes a genuine threat to national security. A justification for the curtailment of certain kinds of speech breaching national security is that the threat to national security is great, extremely probable, and imminent. In such a case, the whistle-blower’s betrayal of secrets entrusted to him/her is neither prudentially, legally, nor morally justifiable. LIMITATIONS OF ETHICAL THEORY My aim in this book has been to show how normative ethical theory underlies or is reflected in just war theory. Now, however, I must regretfully cast doubt on this entire enterprise. Perhaps moral philosophy is not the source of our moral values and is powerless to inform as to the nature of good and evil.

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The shadow of a doubt was first cast by such as Alastair MacIntyre and G. E. M. Anscombe who believe that philosophical ethics took the wrong turn by turning from the dispositional ethics of Aristotle to the decisional ethics of the sort formulated by Kant and Mill. Doubt has increased with Richard Taylor who, in his Good and Evil: A New Direction, aims at “reexamining, and rejecting, a whole rationalistic tradition of ethics, and it happens that Kant represents the culmination and clearest expression of that tradition.” He continues: There are countless philosophers and other intellectuals who simply assume that their behavior is rational, and who simply never doubt that a rational justification should be given, or at least be made available, for any mode of conduct or pattern of life that is claimed to be morally right. Indeed, to say that mode of life has a moral justification simply means to the vast majority of contemporary philosophers that it can be rationally defended, and virtually all contemporary philosophical literature on this subject has to do, in one way or another, with the giving of reasons for this and for that, and with the intellectual problems that inevitably arise from the attempt to do this. It hardly occurs to anyone that there might be a kind of moral justification that has nothing whatsoever to do with reason, a kind of justification that rests more upon seeing than thinking, and involves wisdom rather than dialectic. 39

Taylor is evidently advocating an a posteriori approach to ethics rather than an a priori one, and one taking its cue from the collective moral experience of human beings, a nod to Ross. In the same skeptical vein, Bernard Williams suggests “that certain interpretations of reason and clear understanding as discursive rationality have damaged ethical thought itself and distorted our conceptions of it.” 40 Where does this negative critique of philosophical ethics leave us? Is the attempt to rationally justify our moral beliefs and values nothing more than a fool’s errand? I think not. The effort to understand the nature of things, whether in the moral or physical realm, is the uniquely human quest for Aristotelian wisdom. Not to make it is to be less than human. And even if that effort ends in failure, that negative result is itself a form of knowledge by making us aware of the limits of human understanding. A failed experiment in the sciences where a theory has been falsified nevertheless has value. We now know to look elsewhere for moral justification as Taylor recommends. Moreover, in our persistent quest for moral foundations, we tacitly acknowledge the supreme importance of our moral ideals. If nothing else, the moral realm, like the physical, is ineluctably mysterious—“Behold, I tell you a great mystery”—a mystery more to be contemplated, if not celebrated, than understood. The weight of this mystery may even inspire us to act morally, to act justly and benevolently. According to Miguel de Unamuno, the truth of

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moral beliefs can be proven from our acting upon them, a pragmatic point of view: My conduct must be the best proof, the moral proof, of my supreme desire; and if I do not end by convincing myself, within the bounds of the ultimate and irremediable certainty, of the truth of what I hope for, it is because my conduct is not sufficiently pure. Virtue, therefore, is not based upon dogma, but dogma upon virtue, and it is not faith that creates martyrs but martyrs who create faith. There is no security or repose—so far as security and repose are obtainable in this life, so essentially insecure and unreposeful—save in conduct that is passionately good.

Conduct, practice, is the proof of doctrine, theory. 41 NOTES 1. George Lucas, Ethics and Cyber Warfare, The Quest for Responsible Security in the Age of Digital Warfare (Oxford: Oxford University Press, 2017), 28, 3. 2. Ibid., 17, 6, 7. 3. Ibid., 9. 4. Ibid., 9, 33. 5. Ibid., 41. See Randall R. Dipert, Journal of Military Ethics 9, no. 4 (2010). 6. See Michael Schmitt, Cyberwar: Law and Ethics for Virtual Conflicts, ed. Jens David Ohlin, Kevin Govern, and Claire Finkelstein (New York: Oxford University Press, 2015). 7. Lucas, Ethics and Cyber Warfare, 45. 8. Ibid., 102–03. 9. Tony Pfaff, “Bungee Jumping off the Moral Highground: Ethics of Espionage in the Modern Age,” in Ethics of Spying: A Reader for the Intelligence Professional, ed. Jan Goldman (Lanham, MD: The Scarecrow Press, Inc., 2006), 100, 67. 10. John B. Chomeau and Anne C. Rudolph, “Intelligence Collection and Analysis: Dilemmas and Decisions,” in Goldman, Ethics of Spying, 118–19. 11. Pfaff, “Bungee Jumping off the Moral Highground,” 76, 79. 12. Arthur S. Hulnick and Daniel W. Mattausch, “Ethics and Morality in United States Secret Intelligence,” Harvard Journal of Law & Public Policy 12/2 (Spring 1989), 520–21; as quoted in David L. Perry, “‘Repugnant Philosophy’: Ethics, Espionage, and Covert Action,” in Goldman, Ethics of Spying, 223–24. 13. Sissela Bok, Lying: Moral Choice in Public and Private Life (New York: Pantheon, 1978; Random House, 1979) 149, 151; as quoted in Perry, “‘Repugnant Philosophy’,” in Goldman, Ethics of Spying, 223. 14. Lincoln P. Bloomfield, Jr., “Legitimacy of Covert Action: Sorting out the Moral Responsibilities,” in Goldman, Ethics of Spying, 204. 15. Chomeau and Rudolph, “Intelligence Collection and Analysis,” 115. 16. Pfaff, “Bungee Jumping off the Moral Highground,” 75. 17. John P. Langan, S. J., “Moral Damage and the Justification of Intelligence Collection from Human Sources,” in Goldman, Ethics of Spying, 111. 18. James A. Barry, “Managing Covert Political Action: Guideposts from Just War Theory,” in Goldman, Ethics of Spying, 262. 19. Carl R. Beitz, “Covert Intervention as a Moral Problem,” in Goldman, Ethics of Spying, 208. 20. “Report of the Special Study Group (Doolittle Committee) on the Covert Activities of the Central Intelligence Agency, 30 September 1954 (excerpts),” in William M. Leary, ed., The Central Intelligence Agency, History and Documents (Tuscaloosa, AL: The University of Ala-

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bama Press, 1984), 144; as quoted in Barry, “Managing Covert Political Action,” in Goldman, Ethics of Spying, 248. 21. William E. Colby, “Public Policy, Secret Action,” Ethics and International Affairs 3, (1989), 63; as quoted in Barry, “Managing Covert Political Action,” 251. 22. Beitz, “Covert Intervention as a Moral Problem,” 213, 214, 215, 216–17. 23. Barry, “Managing Covert Political Action,” 262. 24. Perry, “‘Repugnant Philosophy’,” 231. 25. L. C. Becker and C. B. Becker, eds. Encyclopedia of Ethics (New York: Routledge, 2001), 1719-20; cited in Goldman, Ethics of Spying, 126. 26. Pfaff, “Bungee Jumping off the Moral Highground,” 91. 27. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 2: 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. NO exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture. (p.1), https://treaties.un.org/doc/Treaties/1987/06/19870626%2002-38%20AM/ Ch_IV_9p.pdf 28. Fritz Allhoff, “An Ethical Defense of Torture in Interrogation,” in Goldman, Ethics of Spying, 132. 29. Ibid., 134. 30. Christopher Tindale, “The Logic of Torture,” Social Theory and Practice 22, no. 3, (Fall 1996), 366. 31. Skerker, “Interrogation Ethics in the Context of Intelligence Collection,” 157, 152. 32. Ibid., 161. 33. Neil C. Livingstone, The War Against Terrorism (Lexington, Massachusetts: Lexington Books, 1982), 174–75; quoted in Perry, “‘Repugnant Philosophy’,” in Goldman, Ethics of Spying, 237. 34. Angelo Codevilla, “Get Rid of Saddam Hussein Now: The Moral Justification,” Wall Street Journal 25 (February 1991), A8; quoted in Perry, “‘Repugnant Philosophy’,” 237. 35. Chomeau and Rudolph, “Intelligence Collection and Analysis,” 119. 36. Robert M. Gates, “Guarding against Politicization: A Message to Analysts,” in Goldman, Ethics of Spying, 171–72. 37. Veteran Intelligence Professionals for Sanity (VIPS), “Memorandum: One Person Can Make a Difference,” in Goldman, Ethics of Spying, 185. 38. Gates, “Guarding against Politicization: A Message to Analysts,” 174. 39. Richard Taylor, Good and Evil: A New Direction, A Forceful Attack on the Rationalistic Tradition in Ethics (Buffalo, NY: Prometheus Books, 1984), xi–xii, 13–14. 40. Bernard Williams, Ethics and the Limits of Philosophy (London and New York: Routledge Classics, 2011), xvi. 41. Miguel de Unamuno, The Tragic Sense of Life in Men and in Peoples, trans. J. E. Crawford Flitch (London: MacMillan and Co., Limited, 1921), 262.

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Index

Adler, Mortimer, 19 Afghanistan, war in, ix, 156 Al Qaeda, xii, xiii, 240 Allhoff, Fritz, 238 Allied Powers, 160 Ambrose, St., 124–125, 128 American: Bill of Rights, 108, 190; Civil War, xv, 2; Constitution, 237, 242; Declaration of Independence, 107, 137 Amnesty International and Human Rights Watch, 173 Anscombe, G. E. M., 19, 37 Antigone, 56. See also Sophocles Aquinas, Thomas St., 6, 61, 62, 69, 70–74, 78, 82, 85, 91, 100, 103, 104n6, 108–109, 111, 114, 126–129, 132–133, 139, 154, 163, 178–179, 197–198 Arendt, Hannah, 117 Aristotle, 8, 13, 15–20, 26, 26n1, 27n7, 29, 34, 48, 56, 59–61, 72, 77, 82, 85, 97, 98, 103, 109, 123–124, 126, 149, 159, 162, 177, 179, 180, 197, 199, 207–208, 210, 214n58, 224. See also aretaic; teleological ethics; virtue assassination, state-sponsored, 163–164, 233, 240–241 Augustine, St., 62, 65–66, 123–128, 132, 148, 154, 224 Auschwitz, 165 Axis Powers, xiii

Balfour, Lord Arthur, 12 Bashar Hafez al-Assad, xv, 163–164 Beitz, Charles R., 234 Bell, Jason, 218, 223, 225 belligerent status, xiii–xvii Bentham, Jeremy, 20–21, 26, 27n15, 93, 111, 117, 118, 120n14, 236 Bhagavad Gita, 123 Bible, 123 Bishop, Jr. Joseph W., 210 Bobbio, Norbert, 90 Bonhoeffer, Dietrich, 10–11, 163–164, 240–241 Book of Manu, 43 Boucher, David, 79, 107, 116, 119–120 British Idealists, 113, 114, 142, 223 Brunner, Emil, 43, 50n28 Buchanan, Allen, 110 Burke, Edmund, 42 Butler, Joseph, 8, 47 Carlyle, Thomas, 20 Chomeau, John R., 230 Churchill, Winston, 182, 199, 201–202 CIA, 232, 234, 235 Cicero, 61–64, 103, 124, 133 civic law. See civil law civil law, 7–8, 14n5, 46, 55, 64, 75, 78, 81, 93, 96, 102, 132, 152, 170. See also human; legislated; positive; statutory Clausewitz, Carl von, xi, 1, 169, 228, 230 255

256

Index

Clendenning, John, 220 Clifford, William K., 183 Coale, George Buchanan, 220 Code of Hammurabi, 43, 45 Codevilla, Angelo, 240 collectivities, theory of: aggregate theory, 184, 187, 188; fiction, 184, 185, 187, 188, 191, 208; reality, 184–185, 187–189, 208. See also person Collingwood, R. G., 114 Convention Banning Genocide, 141 Corpus Juris Civilis (Body of Civil Laws)/ Codex Justinianus (The Code of Justinian), 64, 65 combatants, ix, xiii–xiv, 129, 162, 164–165, 166, 231 community, x, 59, 60–61, 61–62, 69, 72, 78, 80, 85, 113–114, 119, 124, 126, 151, 168, 180, 185, 205, 216, 220, 223; Great, 216–217, 224; intelligence, 230, 239; international, 5, 61–62, 113, 142, 182, 206; legal, 185; moral, 62, 74, 112–113, 114–116, 142, 185, 211; political, xvii, 61–62, 72, 113, 168, 185; universal, 63, 69, 216 competent authority, 126, 128, 131, 138, 143, 148, 180 Confederacy, 218 Convention on the Prevention and Punishment of the Crime of Genocide, 115 Cooper, Anthony Ashley, 3rd Earl of Shaftesbury, 20 cosmopolitan, 61–62, 77, 113, 114, 141, 216. See also cosmopolitanism cosmopolitanism, 61, 63, 66n17, 74 Commission on Intervention and State Sovereignty (ICISS), 196 Convention on the Prevention and Punishment of Genocide, 115 Court of Justice, 7, 39 Covenant on Civil and Political Rights, 115 Covenant on Economic, Social, and Cultural and Rights, 115 Covenant of the League of Nations, 141 Criminal Court at The Hague, 211 covert political action, 233 Cox, Richard H., 134

crimes against humanity, 3, 54, 115–116, 130, 141, 163–164, 173, 184, 191, 194–195, 196, 208, 210, 211–212. See also genocide; war crimes Cromwell, Oliver, 160 Crowe, Michael B., 90, 100, 102 cyber warfare, 227–230 Cyberwar: Law and Ethics for Virtual Conflicts, 229 Davidson, Donald, 186 Decalogue, 7, 43, 46, 210. See also Ten Commandments declaration of war, 148, 167, 180, 182 Dipert, Randall, 229 double-effect, 127, 129, 133, 139, 163, 197, 198, 231 Duns Scotus, 48, 73 Dworkin, Ronald, 86, 101 Edwards, Jonathan, 8 Eisenhower, Dwight, 233 Encyclopedia of Ethics, 235 espionage, 227, 228, 230–231, 232, 233 ethics, theories of: aretaic, 13, 15, 18–19, 29, 33, 48, 103, 180, 207; consequentialist, 13, 21, 22. See also utilitarian; teleological ; decisional, 13, 18–20, 27n7, 48–49, 242; deontological, 19, 29, 35, 38, 43, 48–49, 103, 180, 200, 204, 207, 212; dispositional, 13, 15, 18, 19, 20, 27n7, 48, 242; divine command, 43, 48, 50n26, 51n31, 55; deontological ; intuitionist, 29, 41, 42, 48, 49. See also Ross; prima facie; Kantian, 19, 29, 42; also deontological ; prima facie, 13, 40–41, 42, 49, 204–205, 238; also Ross; intuitionist; rationalistic, 242; teleological, 15, 19, 29, 33, 103; utilitarian ; Thomistic, 94; Aquinas; natural law; utilitarian, 3, 13, 19, 24–25, 48–49, 50n15, 103, 162, 207, 212, 239; Bentham; Mill; teleological ; virtue, 13, 15, 103; aretaic; Aristotle epicureanism, 61 Euthyphro, 43–44, 47, 55, 73, 178 Fay, Charles, 100, 101

Index Fiala, Andrew, 225 Finnis, John, 85, 101, 110 First World War, 22, 141, 160, 169, 170, 171, 181, 190, 193, 217, 220, 223 Free Syrian Army, xv French, Peter A., 185–187, 189, 208, 211 French and Indian War, ix French Resistance, 22, 172 Freud, Sigmund, 154 Fuller, Lon, 85, 101 Gaius, 64 Galbraith, J. K., 186 Gandhi, Mahatma, 10 Gay, John, 20 Geach, Peter T., 37 Geneva Conventions, xiii, xiv, 141, 166, 175n31, 197 genocide, 3, 12, 115, 130, 141, 156, 166, 173, 194, 196, 204, 217, 233, 240. See also crimes against humanity; war crimes Gentili, Albireo, 77 Gewirth, Alan, 110 Gibson, F. Jr., 187, 188 Goldhagen, Daniel J., 209–210 Goldstone, Richard J., 115 Good and Evil: A New Direction, 243 Green, Thomas Hill, 113–114 Grotius, Hugo, 6, 77, 78–82, 131–134, 138, 152, 179, 181, 194, 207 Gulf War, 240 Gutmann, Amy, 119 Hague Conventions, 117, 141, 148, 156, 175n31 Harries, Richard, 116 Hart, H. L. A., 110 Hasan ibn-al-Sabbah, 163 Headley, John M., 109 Heelan, Patrick A., 93 Hegel Georg W. F., 102 Heydrich, Reinhard, 166 Henry the Fifth, 128, 158, 175n16 Henry, Patrick, 157, 237 Heraclitus, 53, 56, 57, 70 Hinton, Alexander Laban, 174 Hitler, Adolph, 11, 12, 141, 164, 166, 241

257

Hitler’s Willing Executioners: Ordinary Germans and the Holocaust, 209 Holocaust, 115, 208, 209 Holy Roman Empire, 134, 219, 223 holy wars, 128, 133 Hobbes, Thomas, 1, 2, 4, 77, 82, 83–85, 89, 93, 108, 114, 121n32, 152, 179, 180, 184, 190, 207 The Hope of the Great Community, 220 Hsiang, Duke, 202 humanitarian intervention, 12, 133–134, 181, 182, 194–196, 217 Hume, David, 20, 90, 92, 93 Hundred Years War, ix Hussein, Saddam, 160 Hutcheson, Francis, 20, 21 Ignatieff, Michael, 118–119 insurance, 221–222, 225; international, 222, 222–223, 224; and international relations, 221; and world peace, 220–223, 224 intelligence gathering, 227, 230–232, 234, 235, 239–240, 241–242 The International Commission on Intervention and State Sovereignty (ICISS), 196 interrogation, 235, 239–240. See also torture Introduction to the Principles of Morals and Legislation , 20 Iraq, war in, ix, 22, 25, 156, 172, 241 ISIS, xii, 139, 167–168 Jackson, Shirley, 23 James, William, 183, 215 Jefferson, Thomas, 137, 237 Johnson, James Turner, 5, 127, 131, 136, 138, 139, 142 Johnson, Loch K., 235 Johnson, William, 235 Jones, Peter, 110 jus ad bellum , xiv, 123–126, 128, 131–132, 134, 137, 142–143, 147–148, 153, 155, 161, 167, 169, 170, 177–178, 179, 180, 181, 201, 206, 208, 216, 218, 223, 229 jus ad pacem, 141, 143, 147, 215, 219, 223

258

Index

jus gentium, 57, 59, 64, 127, 131, 132. See also international law jus in bello, xiv, 125, 126, 127, 129, 132, 133, 138, 139, 142, 142–143, 147–148, 153, 160, 161, 162, 166–167, 168, 170, 171, 177–178, 180, 197–200, 201, 202–206, 209, 218, 229, 232, 235 jus in silico , 229 jus naturalis/naturale, 57, 59, 64. See also natural justice; natural law jus post bellum , 124, 126, 129–130, 135, 139, 141, 143, 147–148, 153, 169, 170, 171, 172, 173, 174, 208, 215, 223 just cause, 107, 127, 128, 130, 132, 133–134, 141, 143, 148, 148–149, 150, 151, 152, 153, 155, 157–158, 160, 164, 166, 167, 173, 179, 182, 201, 202, 206, 213n28, 215, 217, 218 just war doctrine, 5, 66n1, 125, 131, 142 justice: discretionary, 86; international, 174; legal, xvii, 59, 96, 211, 212; moral, 211, 212; natural justice, 59; political justice, 59; retributive, 125, 126, 127, 129–130; social, 174; transitional, 173–174 Justinian, 64 Kant, Immanuel, 4, 29–39, 44, 49n2, 49n5, 49n7, 49n14, 80, 81, 94, 98, 111, 140–141, 153, 154, 179, 180, 194, 197, 200, 202–204, 207, 219, 222–223, 230, 232, 234, 236, 243 Kellogg-Briand Pact, 141 Kennan, George, 2 Kerlin, Michael J., 185, 211 Kierkegaard, Soren, 51n34 King, Jr., Martin Luther, 54 Kingsley, Darwin, 189–190, 213n24 Kissinger, Henry, 2 Kolakowski, Leszek, 110 Kosovo War, 194 Lackey, Douglas, xi, xiv, xv, 3, 6, 150, 156–157, 158, 163, 182, 189, 192, 213n28 Lauterpacht, Hersch, 107 law : common, 8, 33, 62, 135, 195; constitutional, 7; divine, 37, 56, 69, 70, 81, 84; eternal, 65, 69, 70; human, 9,

54, 56, 58, 71–72, 75, 85, 101. See also civil; legislated; positive; statutory ; international, xiii–xiv, 4, 8, 10, 54, 74, 77, 78, 115–116, 117, 118, 128, 131, 132, 133, 141–142, 151, 152, 154, 159, 161–162, 166, 169, 173, 174, 182, 184, 188, 189, 194, 204, 209, 211, 221, 222, 223, 228, 229; legislated, 90; civil; human; positive; statutory; of nations, 57, 59, 64–65, 74, 75, 77, 78, 79–80, 81, 82, 86–87, 95, 112–113, 115, 118, 127, 131, 132, 139, 143; international ; of nature, 9, 33, 54–55, 59, 61, 72, 78–80, 81, 83, 84, 85, 101, 134–135, 137, 179, 180, 207; natural ; of reason, 65, 134; natural ; positive, 9, 54, 56, 59, 61, 62, 63, 64, 65, 70, 72, 73, 81, 82, 83, 84, 85, 86, 90, 95, 102–103, 189, 210; civil; human; legislated; statutory; Roman, 59, 62, 64, 184; scientific, 53, 55, 56, 90, 95–96; laws of nature; statutory, 9–10, 54; civil; human; positive laws of war, xiii–xiv, xv, xvi, 24, 142–143, 147–148, 203–204 The Law of War and Peace (De Jure Belli ac Pacis), 131 Laws, 57 League of Nations, 39 Lectures on the Principles of Political Obligation, 113 Lee, Robert E., 218 legal positivism, 86 Leibniz, Gottfried Wilhelm, 4, 44–45; peace proposal of, 219–220, 222–223 Lewis, H. D., 209 Livingstone, Neil, 240 Locke, John, 47, 51n32, 77, 84–85, 93–94, 108, 114, 121n32, 131, 134–135, 136–137, 138, 139, 140, 142, 143, 150, 151, 152–153, 179, 181, 190, 209, 219 logos, 53, 70 London Agreement & Charter, 115 The Lottery, 23 loyalty, 4, 188, 215, 216, 217, 218–219, 223–225 Lucas, George, 227–230 Machiavelli, Niccolò, 2

Index MacIntyre, Alastair, 19, 118, 243 McVeigh, Timothy, xii, xiii, 165 Manning, Chelsea, 242. See also whistleblowing Manual of Military Law , xv Mao Zedong, 164 Marcus Aurelius, 61–62 Marshall Plan (The European Recovery Program), 171, 224 Melden, A. I., 8 “Memorandum on International Insurance”, 220 The Merchant of Venice, 19, 117 Mexican-American War, 215 military necessity, 2, 161–162, 197, 201–202. See also proportionality military preemption, 25–26, 134, 138, 143, 181, 181–184 Military Tribunal at Nuremberg, 173. See also Nuremberg Trials Military Tribunal for the Far East, 173. See also Tokyo War Crimes Trials Mill, John Stuart, 13, 20–21, 23–26, 27n11, 27n15–27n16, 27n19, 29, 33, 50n16, 50n22, 77, 89, 95, 96, 103, 111, 119, 149, 155, 175n4, 179, 193–194, 197, 210, 211, 243 Monden, Louis, 102 Moore, G. E., 90 moral: Agent, 8, 187, 211; codes, 7–8, 9–10, 43, 45–48, 70, 93, 100, 118, 231–232; common sense, 13, 40, 44, 204; community, 62, 74, 112–113, 114–116, 142, 185, 211; education, 18, 19, 48; law, 4, 8–11, 13, 23–25, 29, 31–35, 37–39, 44–46, 48, 61, 81–82, 90, 95, 97, 103–104, 111, 180, 180–181, 203–204, 206–207, 210, 216; mean, 16–18; objectivism, 11; philosophy, 7, 8–9, 19–20, 26, 29–31, 34, 110, 242–243; realism, 169, 177–178, 205; relativism, 7, 11–12, 14n7, 53, 103; sense, 112; subjectivism, 7, 53, 103. See also natural law morality : and religion, 47–48; of war, 5; rules of, 24; supreme principle of, 34 Morgenthau, Hans, 2 Napoleon Bonaparte, 12

259

Napoleonic Wars, ix, 220 Nation, definition of, x National Liberation Front (NLF), xvi national sovereignty, xi, 74, 116, 117, 130, 133–134, 140, 143, 149, 150–151, 158, 159, 167, 168, 170, 171, 173, 179, 181, 183, 184, 188, 191, 194–196, 197, 199, 205, 222, 233 natural law, theory of, 11, 29, 48, 49, 53–57, 59, 62, 65, 69, 74, 79, 90–91, 95, 99–101, 109, 184; descriptive sense of, 55; prescriptive sense of, 55; rationalist conception of, 55, 73–75, 78, 81, 82, 95; voluntarist conception of, 48, 55, 73, 78–79, 81, 94, 95 natural philosophy, 9 naturalistic fallacy,, 91, 99 neutrality, right of, 168, 198, 200–202 Nicomachean Ethics, 15 Niebuhr, Reinhold, 2, 5, 6n2, 89, 104n16 Nominalism, 104n20, 212n11. See also realism noncombatant immunity, 162–166, 197–199; objective, 163, 175n31; subjective, 163, 175n31 Noone, J. B., 91 Nuremberg Trials, 54, 115, 173, 208. See also International Military Tribunal at Nuremberg Nussbaum, Arthur, 84 Obama, Barack, 240 Occupation and Reconstruction of Japan, 171 Ockham (Occam), William of, 37, 46, 48, 73, 79, 120n3 Ockham’s razor, 46, 50n18 Oedipus the King, 56–57. See also Sophocles On the Commonwealth, 62 On the Laws, 62–63, 124 Orend, Brian, xi, 133–134, 141, 142, 147–149, 151, 153, 158–160, 168–172, 179, 181–183, 196, 204–206, 207–209, 224 Osama Bin Laden, 167 pacifism, ix, 1, 5, 157, 198; practical, 225 Paine, Thomas, x, 108

260

Index

Paley, William, 20 “Paris Minimum Standards”, 168 Paris Peace Treaty, 160, 170–171, 223 parsimony, law of. See Ockham’s razor Peace: just, ix, 223–224; proposals, 219–221, 222–224; world, 220 Peace Day Exercises, 220 Peirce, Charles S., 183, 215 Perry, Michael J., 110 person : biological, 186; corporate, 184–188; human, 140, 184–185, 187–189; legal, 184–185, 187–188; moral, 8–9, 140, 185, 187, 188, 211; nation as, 140, 181, 184, 187, 188–189, 191, 208; nominal, 184, 187, 188; real, 185, 187–188; sociological, 185; virtual, 74, 140, 185 Pfaff, Tony, 230 Phaedo, 58 Phillipson, Coleman, 74 The Philosophy of “As If” (Die Philosophie des Als Ob), 119 The Philosophy of Loyalty , 225n3 Pink, Thomas, 75 Plato, 15, 18, 43, 47, 51n33, 55, 56–59, 61, 66, 70, 73, 124, 178, 242 Plutarch, 61–62 Pogge, Thomas, 109 political realism, 1, 4–5, 11, 103, 177, 204–205; descriptive, 2–3; prescriptive, 2–4, 155 Popper, Karl, 97–98 preemptive war. See military preemption Price, Richard, 108 Priestly, Joseph, 108 proportionality, 16, 127, 132, 156–159, 161, 162, 170, 171, 175n14, 180, 197, 199, 204, 207–208, 212, 232–233, 238 Pufendorf, Samuel von, 6, 77, 81, 81–82, 131, 133 Qur’an, 123 Rachel, Samuel, 77 Randall, Jr., John Herman, 217 Realism, 213n12. See also nominalism realpolitik, 1, 3, 12, 177, 202, 233 Reprisals, 166–167, 198, 199–200 Republic, 58, 124, 242

Rhetoric, 59 Rid, Thomas, 227 right intention, 22, 39, 126, 143, 148, 153–155, 180, 206, 212 rights : citizens’, 191; civil, 9, 54, 107, 150, 191; descriptive, 108; insurance, 221–222; legal, 107, 126, 143, 147, 188–191; moral, 126, 143, 147, 188–190, 195; nation’s, 191; natural, 84–85, 86, 103, 107–120, 134, 189; neutral, 200–202; objective, 108; prescriptive, 108, 120n2, 121n40; subjective, 108; war, xvi Rolston III, Holmes., 98, 99, 100, 105n25 Roman jurists, 64, 89 Rome Statute of the International Criminal Court, 142 Rorty, Richard, 114 Ross, W. D., 13, 29, 39–42, 49, 50n21–50n22, 111, 204–205, 238, 243. See also ethical intuitionism; prima facie ethics Rousseau, Jean-Jacques, 89 Royce, Josiah, 185, 215–225, 225n3, 226n18 Rudolph, Anne C., 230 Santayana, George, 215 Schmitt, Michael, 229 Schweitzer, Albert, 16, 18 Second World War, xi, xiii, xv, 23, 37, 141, 152, 160, 165, 167, 169–173, 201, 204, 218, 220, 223. See also World War II Selznick, Philip, 102 Seneca, 61, 133 Shakespeare, William, 19, 128–129 Sharia law, 12 Sherman, George T., 2, 202 Sidgwick, Henry, 161, 162 Simon, Jonathan, 216–225 Simon, Yves R., 92, 98–99, 103 Skerker, Michael, 237, 240 Smith, Adam, 20 Snowden, Edward, 242. See also whistleblowing social darwinism, 96 societas gentium (society of nations), 77. See also cosmopolitanism; Gentili;

Index Stoicism Sophocles, 56. See also Antigone The Sorrow and the Pity, 172 Spanish American War, xi, 215 “The Spirit of the Community”, 220. See also Royce Stalin, Joseph, 164 Stanford Prison Experiment, 239 State: definition of, x; of nature, 1–2, 4, 83–84, 85, 93, 101, 113–114, 134, 137, 140, 151, 152, 155 Stoicism, 61–62 Stoics, 56, 61, 64, 77, 113, 222–223. See also Stoicism Suarez, Francisco, 73–75, 77–79, 81 Summa Theologiae/Theologica , 69 Syria’s Civil War, xv Taliban, xii Tao-teching, 123 Tausend, Helmut, 172 Taylor, Richard, 242–243 teleological, 59–61, 72, 91–92, 97–98, 103, 109, 114 telos, 60, 82 Ten Commandments, 23, 48. See also Decalogue terrorism, xiii, xvii, 167, 239 Thirty Years War, ix, 133–134, 219 Thoreau, Henry David, 10 Thucydides, 2 Tindale, Christopher, 239 Tocqueville, Alexis de, 112–114 Tokyo War Crimes Trials, 173 torture, 23, 166, 219, 235–240. See also interrogation Toward Perpetual Peace: A Philosophical Sketch (Zumewigen Frieden), 39, 140, 181, 219 Treverton, Gregory F., 234 Truth and Reconciliation Commission of South Africa, 174 Tsarnaev: Dzhokhar, xii; Tamerlan, xii Ulpian, 64–65 Unamuno, Miguel de, 244 United Nations, 4, 8, 27n20, 39, 117, 149, 155, 206, 222–223; Security Council, 182, 194–195; Charter, 26, 27n20, 115,

261

116, 141, 149, 159, 181; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 235, 245n27; Universal Declaration of Human Rights, 4, 115, 141–142, 173, 190 unwritten law, 57–58, 65, 75, 102. See also natural law Utilitarianism, 21 Vaihinger, Hans, 119 Vasquez, Gabriel, 73 Vattel, Emmerich de, 77, 131, 133, 137–140, 143, 162, 184, 194 Veatch, Henry, 92, 97, 99, 109 Vichy Government, xi Vitoria, Francisco de, 73–75, 77–79, 81, 127–134, 138, 149, 160, 181, 218, 224 Waltz, Kenneth, 1 Walzer, Michael, xvi–xvii, 3–4, 6n5, 151–152, 154–155, 160, 162, 164–165, 167–169, 173, 177, 179, 183, 193–194, 196, 198, 199–200, 201–202, 204–205, 208, 210, 219, 233 Westlake, John, 190, 201 Westphalia : Treaty of, 133; Peace of, 219 whistle-blowing,. See also Manning;; Snowdon 242 Wilkie, Andrew, 241 Williams, Bernard, 243 Wilson, Woodrow, 4, 39, 169; Fourteen Points, 219–220; Peace proposal of, 219–220 war: crimes, 3, 116, 129, 141–171, 173, 184, 207–212; definition of, x–xii War and Insurance, 219–220 War of the Austrian Succession, ix Weber, Max, x, 167–168 Winter War, 159 Wollstonecraft, Mary, 108 World Insurance Congress, 220 World War II, 115, 159, 199, 200, 224. See also Second World War Xenophon, 57 Zeno of Citium, 61. See also Stoicism

About the Author

Richard A. S. Hall received his BA in philosophy from Boston University, his MA in philosophy from Dalhousie University, and his PhD in philosophy from the University of Toronto. He currently is professor of philosophy at Fayetteville State University, a constituent institution of the University of North Carolina. His publications include two books, The Ethical Foundations of Criminal Justice and The Neglected Northampton Texts of Jonathan Edwards: Edwards on Society and Politics; and chapters in The Contribution of Jonathan Edwards to American Culture and Society (The Northampton Tercentenary Celebration 1703–2003), Josiah Royce for the Twenty-First Century, and Middlebrow Wodehouse.

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