Reflections of a Broken Man

On Just War: Part II – Alternatives (c) by StephenMac
September 16, 2009, 8:05 pm
Filed under: Reflections

*currently in a break between lectures… will post detail tonight or tomorrow…**

During the 16th-18th centuries, there was a transition from Christian/moral just war theory to legalistic just war theory. This still exists today. Should just war theory remain legalistic?

It is my belief that Just War Theory is and should remain a moral theory, rather than a legal one. In other words, it deals with right and wrong, rather than legal or illegal actions.

The rise of legalism in just war theory came from the abuse by sovereigns of the tradition, turning it into an excuse for war (“holy war”), rather than a restriction on it. Arguably, legalism is now guilty of that same charge. The codification of just war theory into international law, placing it in the paper world of positive international lawyers, is producing the same problems, allowing sovereigns to justify their wars – no longer in terms of “holy war,” but rather as legal war. Just war theory has become a series of checkboxes of laws that politicians tick to justify their positions. This poses some serious issues, as it overlooks the original focus of just war theory, namely, the limitation of war and a reduction of the individual suffering caused by it.

There are three points that flow from this assertion. First, the individual has always been, and should remain, the primary focus of JWT. From a political theory standpoint, the state is founded upon the individual, and a state’s rights and responsibilities are based on those of the individual. Thus, a violation of those rights at a state level corresponds to a violation of rights at the individual level. As Walzer writes, aggression is the name we give to the crime of war, and it is a crime because of the violation of the rights at an individual level. War forces citizens to give up their freedom and welfare for a cause, be it just or not. Importantly, it forces one’s adversary to do the same to their citizens. JWT is a theory that addresses the problem of human suffering caused by war, and it is for this reason that it aims to limit and restrict it.

Secondly, JWT is an incredibly practical framework. The codification of JWT into international law means that this element is often neglected. One need only look at the criteria of jus ad bellum, let alone jus in bello, to see the practicality of the framework. “Legitimate authority” ensures that war is only fought or declared by those with the appropriate power to do so, “reasonable prospects for success” and “last resort” are essentially cost/benefit analyses, and “proportionality” and “discrimination” all have prudential considerations.

Finally, legalism deals with what Walzer terms the “superstructure.” It fails to deal with the ethical substructure that underpins it, and as such, fails to account for how laws were formulated, and why they are considered legitimate. International law is seen to be the combination of what Grotius calls “natural law” (human reason applied to understanding the will of God: what is “just”) and “human law” (the customs, traditions, and agreements made by society for “the enjoyment of rights and the common interest”: what is legal). Both natural and human law require some ethical substructure to provide a reason for why they are accepted as law. The concept of “sovereignty” is a perfect example, being a fundamental term in international law. While many accept that sovereignty is about responsibility, this acceptance is mainly limited to the Western world, and is disputed by developing nations. The reason this is disputed is because of the implications for individual political freedom. Developing nations believe the concept of sovereignty as responsibility could be used as an excuse for other countries to interfere in their domain, whereas many in the West believe that if a state is incapable of carrying out its duties in providing for the welfare of its citizens, then it no longer retains that right, and others need to make that provision. It is interesting that the catalyst for this development came about from the moral outrage caused by the suffering of people in Rwanda, Somalia, and Kosovo.



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[…] philosophy reminded me that I had neglected this series. You can find them here, here, here, here, […]

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