Berkeley Talks transcript: Tanner Lectures, day 1: Toronto law professor Arthur Ripstein on rules for wrongdoers

By Public Affairs

Carol Christ: Good afternoon. I’m Carol Christ. I’m the Chancellor of the university, and it gives me great pleasure to welcome you all to the Berkeley campus this afternoon for the Tanner Lectures on human values. This distinguished lecture series is presented annually at each of nine universities, including UC Berkeley; the others are Cambridge and Oxford; and here in the United States, in addition to Berkeley: Harvard, Michigan, Princeton, Stanford, Utah, and Yale. This series was founded in 1978 by the American scholar, industrialist and philanthropist, Obert Clark Tanner, who was also a member of the Faculty of Philosophy at the University of Utah. He was also an Honorary Fellow of the British Academy. Tanner’s goal, in establishing the lectures through the Tanner philanthropies, was to promote the search for a better understanding of human behavior and human values. He hoped that the lectures would advance scholarly and scientific learning in the area of human values, and contribute to the intellectual and moral life of humankind.

Human values are defined as broadly as possible, and the lecturers may be chosen from any discipline. The lectureships are international and transcend national, religious, and ideological distinctions. The lectures from all nine universities are published in an annual volume; in addition, Oxford University Press publishes a series of books based on the Berkeley Tanner Lectures. The 11th and 12th volumes of this series were published in 2018; and the period since our last Tanner Lectures, two additional volumes are currently in preparation.

The Tanner Lecturer is chosen for his or her uncommon achievement and outstanding abilities in the field of human values. Here at Berkeley, the Tanner Lecturer is appointed through a faculty committee of which the Chancellor is the Chair. I assure you this is chair in name only; I have never been to any one of these committee meetings. I congratulate my colleagues who have really done the work: Professors Jay Wallace, Hannah Ginsborg, Christopher Kutz, Kinch Hoekstra, Niko Kolodny, Kevis Goodman, Stefan-Ludwig Hoffmann, and Rebecca McLennan for their brilliant choice of this year’s lecturer, Arthur Ripstein.

Now, let me call on my distinguished colleague, Professor Niko Kolodny, to introduce Arthur Ripstein and today’s commentator. Professor Kolodny will also moderate the discussion that follows.

Niko Kolodny: Thank you, Chancellor Christ. On behalf of the Tanner Committee, I’d like to present you with the two most recent volumes in our Berkeley Tanner Series: the “Birth of Ethics,” which is based on Philip Pettit’s Tanner lectures, edited by our Kinch Hoekstra, with commentary by Michael Tomasello; and the volume on Didier Fassin, “The Will to Punish,” with comments by Bruce Western, Rebecca McLennan, and David Garland, edited by our Christopher Kutz.

So, it’s a privilege to introduce Arthur Ripstein, who is professor of law and philosophy, and university professor at the University of Toronto. After finishing his undergraduate degree at the University of Manitoba, he went onto get a doctorate in philosophy at the University of Pittsburgh, and then a master’s in law from Yale. He’s the author of three books and counting, Equality, Responsibility and the Law, Force and Freedom, and Private Wrongs, and he’s edited at least as many other books, and has served in a variety of editorial capacities, not least after many years of service continuing on as associate editor of the Journal of Philosophy and Public Affairs. He was awarded a Killam Fellowship from the Canada Council, and his work has been featured on CBC Radio.

It’s possible that my first communication from Arthur took the form of an automated vacation message, “Your email has been filed for future reading. If the matter is urgent, you should consider contacting someone other than a philosopher.” Now, while the message is no substitute for the man himself, it conveys something of Arthur’s crisp two-part self-deprecating, one-part other-deprecating wit, if it decidedly undersells his personal generosity and warmth.

The book of Arthur’s that have spent the most time studying, Force and Freedom, is responsible for a vibrant revival of interest in Kant’s thinking on law and politics. Now, Kant’s moral philosophy has never wanted for attention, but it’s been a somewhat different story with Kant’s legal and political philosophy, with the broader philosophical community not always sure what exactly to make of it.

So, astonishingly, and in a way in which I can think of no recent parallels, Arthur has been able to reconstruct, convincingly and completely, a body of thought that so many struggled with for so long with such limited and piecemeal success; but more than that, Arthur has over just a decade made it, far from an antiquarian curiosity, one of the main schools of contemporary political philosophy. So, if before one found oneself asking, “What would a utilitarian or a communicatarian say about this?” one now finds oneself asking, “Well, what would a Kantian say?” and turning to Arthur naturally for help with an answer.

As one might expect from its Kantian inspiration, two main themes of Arthur’s work are freedom and principle. So, the freedom in question is independence, which consists in not having one’s person or property subject to the choices of another private person or unilateral will. At first, this may seem like a kind of libertarianism, which is hostile to the state; but on the contrary, Arthur thinks that the state is necessary in order to secure our independence. The only way not to have one’s person or property subject to another private person, or unilateral will, is to have all of our persons and property subject to a public law or omnilateral will. In a play on Hayek’s book, Road to Surfdom, Arthur’s masterful chapter, “Roads to Freedom,” explains how even something as ordinary as public thoroughfares are necessary to keep us from being subordinated to others.

As or the other theme, Arthur takes principles… rules, laws… very seriously. If you pose a moral question of any significant complexity to a philosopher, they’ll most often tell you that the answer, which they’ll usually leave as an exercise for the reader, depends on balancing a number of conflicting considerations, all of which depend on highly specific contingent conditions. So, their job, as they see it, is to tell you what the weights are and to help you to calibrate the scale. Arthur, by contrast, will seek to answer your question by telling you what the rules are, and then explaining why the rules have to be that way in order for it to be possible for us to enjoy a certain condition or pursue a certain kind of activity. So, his stand toward the basic subject matter of ethics is not one of calculating consequences; but instead, of upholding principles.

Now, this insistence on rules might seem at first rigid or irrational as epitomized by Kant’s intimate suggestion that there’s no right to lie even to a murderer at the door; but in Arthur’s telling, this insistence on rules comes to seem something entirely sensible and humane. So, I say this all by way of a rebuttal of Arthur’s vacation message. I realize that this may make me the living caricature of the hair-splitting analytic philosopher that I respond to in autoreply with counter-example; but if the matter is urgent and the philosopher is Arthur, then you should consider contacting him; or rather, we should all consider contacting him before the matter gets urgent; that is, we should follow his lead, in this reasonably cool hour, in trying to work out what the rules are, so we have those rules in hand before we encounter a situation whose heat will tempt us to break or bend them.

So, please join me in welcoming Arthur Ripstein to the podium.

Arthur Ripstein: Thank you very much, Niko. I’m deeply honored to be here, all the more honored by that wonderful, generous introduction. One of the difficulties with giving a lecture is that you don’t get to say everything, and so I had this methodological prelude ready, and then thought, “No, there isn’t enough time to include that in my lecture,” and then Niko went and provided it to you by way of introduction. So, that’s what I’m trying to do.

I think that in order to understand political morality generally, and in order to understand many of the pressing questions that we face both as individual human beings and as members of political societies, what we have to do is think about them in terms of rules. My topic for today is a particular category of rules, I call it “rules for wrongdoers”; that is, rules that apply to people who are engaged in activities in which they have no business engaging. Something that’s prohibited, the question is, “How can there be rules for the right or the wrong way to do it?” It seems like there’s a simple rule, “Don’t do it,” but I want to suggest that’s the wrong way to think about it.

The example with which I want to illustrate this theme, and the example that I want to interrogate with this theme, is the example of the rules of war. The contemporary law of war has two sets of rules; each of these sets of rules seems morally appealing when considered in abstraction, and yet there’s a tension between them. Let me just briefly state, in the broadest general terms, those two rules; then I’ll draw attention to the tension between them; then I will fill-out in more detail how I see them fitting together, and how I see them as following through on an integrated way of thinking about the use of force.

As Niko predicted in his introduction, I’m going to draw on Kant here, though I won’t get too drawn into any of the details of the Kantian texts; and indeed, what I will mostly do is claim that Kant made various claims, and leave it to the readers of the eventual volume to determine whether I’ve established that; and then I will quote him a few times, because Kant had many notorious turns of phrase, but a few, in the context of war, truly beautiful turns of phrase.

So, let me say something about these two bodies of rule that govern the conduct of war. These rules have elegant Latin names: jus ad bellum and jus in bello. The first set of rules, the ad bellum rules, to war, are rules governing when it is acceptable to start a war. Now, it turns out that though there have been views about war for many centuries, millennia even, and there have been wars for even longer, the contemporary international law of war, and the contemporary common sense morality of war, is quite simple and straightforward: it says there’s basically just one ground of going to war; that is, national defense. You can defend your nation against attack, you can defend another nation against attack; and in extreme situations, you can defend civilians against attack even by the force of their own nation, and that’s all. That’s rule number one. That is, it basically says, that the grounds of going to war are extremely limited.

The in bello rules are slightly different. There are lots of detailed in bello rules, but I will boil them down to two basic organizing principals: one of them is what international lawyers call “the principle of distinction” or “principal of discrimination,” you must not target non-combatant; the other is the prohibition on perfidy, with the paradigmatic case of perfidy being a false negotiation or a false surrender. Now, the thing about these in bello rules is that although the ad bellum rules basically say you can’t start a war… basically, you can just stop a war; the only ground of war is national defense… and so the ad bellum rules only authorize one side in a war, that is the side that is responding to an illicit act of aggression, but the in bello rules are different: they apply to both sides. Both sides in the war are prohibited from targeting civilians; both sides in the war are prohibited from engaging in false surrenders and other forms of perfidy.

But there seems to be a tension between these two bodies of law. I began by calling these the “contemporary law of war” because these rules are actually relatively recent, at least as a legal matter, despite the fact that they are cloaked in the vocabulary of a dead and learned language; in fact, the terms “jus ad bellum” and “jus in bello” were not used together as a contrasting pair before 1928. Actually, that’s not quite true. Kant, in a series of lectures he gave in 1784, as reported by his students who have almost used them; but other than that, they were not used as a contrasting pair. Nonetheless, starting in 1928 they were viewed as a contrasting pair. There were two sets of rules: one saying you mustn’t breach the peace, and so the only ground of war is national defense, and the other saying, “These are the rules governing how you conduct a war.”

In the early years of this division between the ad bellum rules and the in bello rules, in the Nuremberg tribunals, the chief British prosecutor, Sir Hartley Shawcross, in his closing comments to the tribunal talked about the way in which Nazi Germany had killed, as he put it, “Innocent and inoffensive men, women and children sleeping in their beds.” So far, sounds like he’s talking about the in bello rules, but then he said something quite surprising. He then said, “But so long as war was legal, perhaps it was all right to kill enemy combatants,” but where a war is illegal, as this war was, a war of aggression and a war that is undeclared, then the people who fight in their aggressor’s army are no different from an ordinary robber band. So, where he had at first said there’s a difference between killing civilians and killing combatants; he now says where war is illegal, then killing enemy combatants is just as bad as killing civilians; both are illegal. That’s the challenge.

How is it that we can understand how, if only one side in the war is allowed to fight, anything that the other side in the war does, that the aggressor does, can be permissible; that’s the challenge. This challenge was, as I said, in the early years of incorporation of the ad bellum/in bello distinction into international law, challenged by Shawcross, but in recent years this challenge has been developed by a wide variety of writers both in international law and in moral philosophy, the most distinguished of whom we will hear from tomorrow, Jeff McMahan. The thought is that if the only ground of going to war is defense, then only one side is allowed to use defensive force. If I attack you, you’re allowed to defend yourself; I’m not allowed to defend myself against your defensive force. But this seems to lead to Shawcross’s conclusion that even when they fight soldiers, the soldiers of the aggressor nation are themselves just common murderers, no different from any other common robber band.

Shortly after Shawcross made his remarks, the great international lawyer, Hersch Lauterpacht, said that although Shawcross’s reasoning seemed to be impeccable, it led to a conclusion that was so extreme as to cast doubt on the major proposition from which it is derived; and my aim today is to identify and articulate that major proposition; and drawing on Kant, provide you with a way of understanding why that proposition is defect. Let me say a little bit more, before going on, about the structure of the ad bellum prohibition, and then I want to turn to the way in which the Kantian view provides an alternative to it.

The basic thought behind the prohibition is that only one side in the war could possibly be in the right. Now, in order to see how Shawcross’s argument engages with this thought, it’s worth thinking about both its direct target and what we might identify as its indirect target. Its direct target is an idea that Shawcross identifies with what in the 18th century was called “the voluntary law of nations.” The 18the century rationalist philosopher, Christian Wolff, drew a distinction between what he called “the natural law of nations” and “the voluntary law of nations.” In describing the natural law of nations, Wolff said that, “He who lacks a just cause has no right in war and everything that he does is illegal”‘ that’s just Shawcross’s idea. But Wolff goes on to say there’s another law of nations which we can call “the voluntary law of nations.” The voluntary law of nations exists through the agreement of nations, and here Wolff’s thought is: nations have agreed that when there is a war it is acceptable for both sides to attack each other’s combatants, but not attack each other’s civilians; it is acceptable for both sides to use what he calls “ruses of war,” but it is not acceptable for them to engage in perfidy.

So, Wolff’s thought, and Shawcross’s target, is this idea that there is an agreement through which nations decide that they will permit each other to engage in targeting of their combatants, but not in targeting of their civilians. Now, Shawcross takes this as his target in two ways; the first is that there’s something puzzling about thinking about this kind of voluntary law of nations, if you think that there is also something that should go by the name of the natural law of nations. If the natural law of nations says you have no right in war, then how is it that any nation could, consistent with there being a natural law of nations, be entitled to give another nation’s soldiers permission to kill their soldiers in an aggressive war?

Now, it’s one thing if you think, and this indeed was the law of nations before 1928, that any nation can, entirely at its own initiative, start a war against another nation to which it believes itself to have a grievance. If that’s the way it operates, then perhaps you can also have a set of rules that govern the conduct of that war, rules that abstract from the justice of each side’s cause because there’s a way in which, if you think of the voluntary law of nations as a kind of dispute resolution mechanism, then you can also suppose that in resolving the dispute the rules have to be the same for both sides because they mustn’t prejudge the merits; but if you think that, the first thing to note is that it’s a very strange thing for nations to agree to. It’s a little bit like supposing that nations stand to their citizens, or to the soldiers who they conscript, in something like the relation in which a shepherd might be thought to stand to the sheep in his flock, sacrificing a few to the wolves so that the rest of the flock might be spared. There’s something problematic about this picture.

But more than that, if the voluntary law of nations has outlawed war, then once war has been outlawed it’s very hard to see how particular acts within a war could become permissible. If you’re not allowed to engage in a war of aggression, then you can’t have a side agreement saying, “This is how you’re allowed to do it.” If you’re allowed to do it, maybe you can have restrictions on how you do; but if you’re not allowed to do it, you can’t. But Shawcross’s argument is no less effective against the idea often found in recent writing about the mortality of war, according to which the reason that the same rules apply to both sides in the war is that both sides are basically exercising symmetrical permissions.

Michael Walzer, in his highly influential 1977 book, Just and Unjust Wars, said that soldiers on either side of a war are permitted to use lethal force against each other because each of them places the other in danger. Now, there’s a puzzle about this view. As my example of self-defense suggested earlier, it’s not actually clear that if I attack you…and you, through your defensive force, endanger me… I somehow get to defend myself against that defensive force; but there’s a further puzzle raised by this, and other similar suggestions, about the way in which the parties are supposedly symmetrically situated. Some people have suggested that the reason the two sides in a war are allowed to attack each other is that the soldiers have consented to this, there are various problems one might have with establishing that this is in fact true, or that it’s somehow acceptable to use force against people whose job it is to defend others.

The difficulty with all of these things is that these don’t seem like the right kinds of justifications outside of the context and war; and so, as my self-defense example suggested, the fact that you endanger me as you defend yourself doesn’t make it the case that we are symmetrically situated, and we don’t think that consent is ordinarily a response to murder, doesn’t justify murder; and we don’t think that just because a police officer has taken it upon him or herself to protect the public, that it is acceptable for a criminal to kill a police officer; we think instead that there’s something heroic about what the police officer does, but that doesn’t confer any kind of justification on the criminal. So, all of these analogies break down, but it’s not just that they break down; the situation for them is much worse because if aggressive war is already prohibited, then whatever application those analogies would have would have to be more restrictive rather than more permissive. You can’t generate an extra permission in the case of defensive war; at the most, you could have an even more limited one in the case of aggressive war.

So, Shawcross’s argument seems to show that there’s something wrong with having these two pillars of the contemporary law of war. It seems to show, that is, that there are problems with supposing both that only one side is entitled to be engaged in the war, and at the same time that the same rules apply to both sides, so that’s the challenge. Having articulated the challenge, I now want to turn to the Kantian response, and the basic idea behind the Kantian response can be brought out by thinking of the concept of peace. Many of you will be familiar with Hobbes’ characterization of war as the condition in which “the disposition of men to contend by battle is known, or where there is,” as he puts it with a lovely analogy with the weather, “lack of assurance to the contrary.” But I want to suggest that this Hobbesian characterization of the difference between war and peace rests on a different and deeper characterization of that difference, and that we can understand that difference by thinking about a distinction that Cicero drew between two ways in which human beings might organize their interaction.

On the one hand, Cicero says we can organize our interactions with words; and on the other, we can organized them through force. The Kantian thought is that this distinction from Cicero gives us the resources not only to see the difference between war and peace, but to see how both the characteristic wrong of starting a war can be characterized in terms of making a transition from a situation of peace, one in which human interactions are governed by words, to one of war in which they’re governed by force; that is… here’s my first pithy Kantian formulation… as Kant puts it, “War hands everything over to savage violence.” The thing that’s wrong with war is war is the condition in which might makes right. Now, that doesn’t mean that no one could ever be justified in going to war, but it means that war is always morally problematic. It’s morally problematic because who prevails in the war depends on strength and is entirely independent of the merits.

At various times in human history people have thought of things differently. Dante in his Monarchia actually says that the Romans won in all of their wars because God wanted them to. He took success on the battlefield as a measure of the moral merit. It may be that medieval trials by ordeal and trials by battle worked on something like this model. This is not a model that is available to us, and so we must suppose that the problem with starting a war is that it hands everything over to savage violence. If war is the condition in which might makes right, peace is the condition in which might is disciplined by right, and so the problem with starting a war is that it marks this transition of one side of Cicero’s distinction to the other.

I will also suggest that the same Ciceronian distinction gives us the resources to understand the way in which the laws, the in bello rules of war, operate. The in bello rules are themselves all restrictions on the way in which a war is conducted; and what I’ll suggest to you today, by talking about the first of those distinctions drawn by the in bello rules, the prohibition on perfidy, the basic structure of the prohibition of perfidy is that perfidy is wrong because it makes war impossible to end. Then, tomorrow, I will talk about the principle of discrimination. The problem with targeting civilians is it makes it impossible to limit war’s scope; that will be my claim.

Now, how does this fit in with identifying the defective major premise of Shawcross’s analysis? The difficulty with Shawcross’s analysis is that he supposes that the rules of war are permissions, that the ad bellum rules identify occasions on which war is permissible, and the in bello rules grant permission to people participating in a war. I want to suggest instead that both sets of rules are prohibitions. Both of them are prohibitions that patrol Cicero’s distinction between these two forms of interaction. Now, you may be wondering what exactly this distinction between a prohibition and a permission comes to. After all, you might think, if something isn’t prohibited then it’s permitted, and vice versa. Aren’t prohibitions and permissions just, as it were, the flip side of the other? In order to suggest to you that it’s not, I want to remind you of some familiar cases in which we can see different kinds of prohibitions that form an in ad set something like the ad bellum/in bello rules do.

My first example is one that will be familiar I think to all of you. Think about the Highway Traffic Safety Code, or whatever exactly it’s called in the State of California; it has two parts to it, which we might differentiate by given them Latin names. The first set are what we might think of as the ad vehendum rules. The ad vehendum rules of the Highway Traffic Safety Act are the rules that tell you when you’re allowed to drive. They tell you you need to be properly licensed, be wearing corrective eyewear as required, that you need to be sober, that you need to be insured, you need to have a properly maintained car, and so on. In addition to these ad vehendum rules, of course, there are in vehendo rules. The in vehendo rules tell you such things as to signal before changing lanes, not drive above the speed limit, and so on. These two sets of rules operate independently of each other.

I’m not a lawyer and I do not mean to offer this as legal advice, but here is just a little bit of friendly advice to you about the difference between the ad vehendum and in vehendo rules in your Highway Traffic Safety Act. If you are spot-checked and it turns out your license is expired, do not say to the highway patrol officer, “But I wasn’t speeding.” If you are caught speeding, do not say to the arresting officer, “But, wait a minute, my license is valid.” These are different questions. Because they are different questions, notice that compliance with one is not sufficient with compliance with the other; but instead, you can violate one without violating the other, in either direction. That is, the in vehendo rules are indiscriminate; they apply in exactly the same way to licensed and unlicensed drivers, drunk and sober ones, and those driving properly maintained and improperly maintained vehicles. So, that’s one example where we have this distinction between two sets of rules, each of which could be described as a permission, but in fact each of which is a set of prohibitions. They say, “Don’t drive unless… ” and while driving, “Don’t do this, this, this and this.” Although sometimes their grammatical wording makes it sound as though they’re saying you may turn after signaling, a more natural reading is, “Signal before turning. Don’t turn without signaling.”

All right. Here’s another example. Periodically, newspapers carry these heart-wrenching stories about babies kidnapped from hospitals who are raised by their kidnappers as though they were the kidnapper’s own child. These are horrible and heart-wrenching stories because the kidnapper has violated the ad parentum rule, has not become a parent in the right way, but it is entirely possible… There was a case in Florida about three years ago where it was clear that this parent had nonetheless done an extremely good job of complying to the in parente rules, had taken an interest in the child’s intellectual, physical, and even moral development. Not a perfect parent. For example, one of the duties that parents have is to tell the truth to their children, and that fell off on this, but some parents do that. The point is that perfect conformity with the in parente rules does nothing to erase the wrong of the ad parentum wrong;. So, two, violation of the basic ad parentum norm does nothing to make the in parente rules lose their moral interest.

Now, in order to warm you up to the thought that the same kind of structure applies in the case of war, I wanted to draw your attention to an aspect of the in bello rules, on which I will give only a brief mention, but it actually has a structure broadly paralleled to the kidnapper example. The law of belligerent occupation seems to me to do a good job of tracking the morality of belligerent occupation. Supposed that aggressor attacks, defender drives aggressor’s forces back, and finds itself in occupation of some portion of aggressor’s territory. When defender is in occupation of aggressor’s territory, there are certain things that defender is allowed to do, certain things defender is not allowed to do.

Basically, defender needs to exercise power in that territory on behalf of the inhabitants of that territory. Defenders, officials, are allowed to do such things as set up courts, arrest criminals, and even conscript people to build a dyke to fight a flood or to fight a forest fire, but not allowed to conscript them to, for example, fighting its war. They have this rule of occupation that says you must rule on behalf of the inhabitants of the occupied territory, and the clear case for this is when the defender is occupying the aggressor’s territory. The defender is not allowed to move its civilian population into the aggressor’s territory, nor is it allowed to export the infrastructure of the aggressor’s territory back home. But notice that if the tables are turned, and it is instead the aggressor that finds itself in occupation of the defender’s territory, the exact same rules apply; it, too, is subject to the law of belligerent occupation.

The law of belligerent occupation is indifferent between aggressors and defenders not because there is no difference between aggressors and defenders, but because the moral and legal basis of the rule turns on the fact that someone is occupying another’s territory, not on how it is that they came to be doing so. Now, I’m going to try to convince you that the same thing applies to the other rules of war. Now, in order to do that, I need to say just a little bit more about the ad bellum rule before turning to the first part of the in bello rule.

The ad bellum rule, as I said, prohibits aggressive war… this is, despite its Latin name, as I said, a relatively recent rule… but in order to understand how it functions as a prohibition rather than as a permission, what we have to understand is how it differs from earlier suggestions about the basic ad bellum rules. So, I want to just give you an extremely brief and somewhat plotted history of different ways of thinking about grounds of going to war as permissions.

There are basically, in Western culture, two ways in which people thought about permission to go to war; one of these is the way found in what’s often described as the classical “just war” tradition originating in Agustin, and then developing through Aquinas, and in different people’s view; either reaching its height in the writings of the Salamanca Scholastics, the Vitoria and Suárez, or on other people’s views reaching its height of the first half of Wolff’s book on war. On this view, war was essentially like an enforcement action. War was understood either as a way in which a nation sought satisfaction for having been wronged, or alternatively was thought of as a form of punishment of those who had done wrong. When you read people like Aquinas, and even more so Vitoria and Suárez, the basic thought they have about war is that war is a form of enforcement that presupposes a relationship between a superior and a subordinate, in the way in which, classically conceived, punishment always presupposes some relation between a superior and a subordinate. The superior punishes the subordinate for the subordinate’s insubordination.

On this classical just war view, the only ground of going to war was some wrong that had been done by the target of the war. War had to be done with proper authority, and had to be a last resort, but the point of it was to seek satisfaction or to punish. That is a view of the ad bellum rule as a permission. It says you are allowed to go to war if there is someone you should punish or someone from whom you are entitled to exact compensation. So, there are punitive wars and remedial wars, and Aquinas it’s explicit. He says, “Yes, there are defensive wars, too,” but he doesn’t bother discussing those because he doesn’t see them as raising interesting questions, but punitive and remedial wars raise interesting questions; you’re allowed to do them provided that the other side you have determined is a wrongdoer. So, each prince, to use Aquinas’ formulation, is entitled to appoint himself as overseer of the conduct of every other nation.

Later developments in the just war tradition, particularly Vitoria and Suárez, thought that in addition to punishment and seeking a remedy, the other ground of going to war was distributive justice. Both Vitoria and Suárez thought that the indigenous people’s of the Americas… or the Indies, as they called them… had too much land, were unwilling to share it with settlers from Spain; and so in order to see to it that this land was justly distributed, the people of Spain, or rather the King of Spain, was entitled to go to war against them. The other strand, in thinking about the grounds of going to war, came from the founders of what are often referred to as the founders of international law: Hugo Grotius, Samuel Pufendorf, and Emmer de Vattel.

Those of you who have read Kant’s Perpetual Peace know that he singles them out as miserable comforters who are always duly cited in justification of war because they thought that the ground of going to war wasn’t punishment; they thought that the ground of going to war was the settlement of a grievance of whatever kind. Grotius organizes his major work, On The Law of War and Peace, on the model of Roman legal treatise: Book I is about what war is; Book II is about the grounds of going to war; and Book III is about the procedure. Basically, Book II says you’re entitled to go to war whenever you would have a cause of action if there was a court available.

So, if you think someone has wrongfully taken your property, if you think that someone has wrongfully breached a contract, if you think that someone has inherited something that is properly yours, then you would be allowed to take them to court; there is no court, and so you are entitled to take them instead to what Pufendorf called “the arbitrament of Mars.” So, how do you do that? Well, one example that Vattel celebrates… In the War of the Austrian Succession, there was a question about who had inherited Silesea. Frederick, the King of Prussia, thought that his cousin, Maria Theresa, the 13-year-old Queen of Austria’s claim to Silesia under their grandfather’s will, was illicit because he thought that there was a rule baring women from inheriting territory at the time. Maria Theresa thought that this was just another vexatious litigant trying to get what he wanted, and so Maria Theresa said, roughly, “So, sue me,” so Frederick did and they went to war, and Frederick won.

On this model, it’s not exactly a relation between superior and subordinate because everyone’s allowed to do it; but there’s this other sense in which, of course, it’s exactly about that because although in one sense nations are all equals, they’re all alike in being able to invoke war as a procedure to subordinate another’s claim to their own; but again, this was a permission view of the ad bellum rules. Contrast this with the prohibition on the use of force against the territorial integrity or political independence of another nation, as the UN Charter puts it.

If you think about that as a prohibition, then national defense, as a ground of going to war, doesn’t actually look like it is a permission, doesn’t look like it belongs on a list with all of the other proposed grounds of war either from the just war tradition or from the founders of international law, nor is it even a replacement for all of those things. Instead, the idea of national defense is a purely responsive conception of the grounds of going to war. You are allowed to use force to stop the aggressor from aggressing against you or another; that’s all you’re allowed to do. You’re not allowed to use it to dispute the merits; you’re not allowed to use it to establish the merits. All you’re allowed to do is to stop someone from making the transition from the state in which words govern to the state in which force governs. You can use force to stop force and for no other reason.

Now, this is a remarkable innovation in international law. It is an innovation, that I might add, was prefigured by Kant, to who no one paid any attention whatsoever, not even the drafters of the 1928 Kellogg Briand Pact about which Oona has written such a wonderful book. Nobody paid any attention to it, but Kant saw the conceptual structure of the situation. The conceptual structure of the situation is that peace is the condition, as I said, in which might is disciplined by right, but that means that every legal order is entitled to continue being the legal order that it is. That means that no other nation is entitled to interfere in it. Now, there might be an exception if we have a situation of institutional barbarism where you have slavery or genocide; but short of that, nations are supposed to avoid intervening in each other’s internal affairs.

Now, this rule of war, or rule against war, has led to a remarkably peaceful three quarters of a century. It, of course, has a side to it that doesn’t make everyone happy because what it means is that it may well be that you have to put up with the product of past injustices. Every nation in the world has the borders that it does largely because of acts of violence in the past, acts of injustice. What you have to do is accept that the past is settled, but that means that you have to accept the results of injustice, because no nation is entitled to take it upon itself to correct the past injustices. Instead, if they are to interact peacefully, that means the past must be settled. That is the only way in which we can be in a condition of peace. The alternative, the requirement that the past only be settled if justice has been done with respect to the past, given that peace is the only condition in which we can get to the merits, the condition in which might is disciplined by right, we must suppose that the past is settled because otherwise peace would need to always precede itself, and so finally be impossible.

Let me now turn briefly to the in bello rules. Most discussion of the in bello rules focus on the protection of civilians, but I want to suggest that the more fundamental in bello rule is the prohibition on perfidy. Let me say something about the history of this. All of the classical just war writers and the founders of international law thought, in varying degrees, there were occasions on which it was acceptable to kill civilians; none of them thought perfidy was acceptable. The prohibition on perfidy is sometimes described as a throwback to medieval codes of chivalry, but it predates those codes by at least a thousand years. Paradigmatic case of perfidy is a false surrender or, alternatively, a false negotiation. Someone marches with the flag of truce and then uses that to take advantage of the trust of the enemy in order to kill them. Perfidy, I want to suggest, is wrong because it obliterates Cicero’s distinction: that the person who commits perfidy, again to use Kant’s idiom, hands everything over to savage violence, by repudiating the difference between conducting interactions by words and conducting them by force.

Let me put the intuitive thought forward and then note two interpretations of it. The intuitive thought is that if I commit perfidy against you, if I pretend to surrender and then attack you, or if I pretend to negotiate a peace treaty with you and then attack you, then trust will be undermined and it will be impossible for us to achieve a future peace; but this intuitive thought can be put in two ways, both in what we might think of as an empirical way, and what we might think of as a category-based way. Empirically, the thought is that this is the corrosive effect of violations of trust, that people won’t trust you in future if you have abused their trust in the past. Now, I don’t doubt that this is by and large true, but I don’t think it actually captures the distinctive wrong of perfidy. For one thing, in the context of war there usually isn’t a lot of trust going on to begin with; for another, if the other side has committed perfidy, that doesn’t give you a license to do it, even though trust has already been destroyed.

But here’s another way of thinking about why the empirical account isn’t sufficient. By focusing on the effects of perfidy, it seems to fail to account for a certain type of case, which I suspect is actually sadly familiar, and that’s the case of perfidy that is so successful that all of the witnesses are killed. Such a case of fully successful perfidy, a perfidious massacre, would be one in which someone pretended to be surrendering, or pretended to be negotiating a peace treaty, and then killed someone and no one ever knew. They wouldn’t undermine future trust, but this seems not to be less problematic, but more problematic, something we can see by considering the case of a whistleblower who reveals this hitherto secret perfidious attack. The whistleblower who does so, if we think purely in terms of empirical effects of undermining future trust, is a wrongdoer, because this whistleblower reveals the fact of the perfidy and so undermines future trust. I think this whistleblower is a hero. I think this whistleblower does the right thing, that the people who committed the perfidious attack are the wrongdoers, and the person who reveals that is somehow a friend of peace, even though the net effect of that person’s action will be to undermine future trust.

So, what’s an alternative? I said that it was sometimes difficult to believe the empirical version, but the question is, “What’s the alternative?” and I want to say it’s a category-based version. The wrong of perfidy is the wrong of making peace impossible. Here’s a way to think about it: when you are at war with someone, there has to be some way out. There has to be some way, having crossed Cicero’s distinction, regardless of who started it, you’re now contending by force: you need to be able to exit that condition. The possibility of exiting that condition must be preserved; perfidy eliminates it. There’s no way out, and there’s no way out of the fact that there’s no way out. This isn’t merely a matter of having abused the flag of truce, though we can put it in those terms; once I’ve abused the flag of truce, I can’t put another flag of truce on top of it saying, “This time I really mean it,” because no one will believe me,” but that isn’t just a point about the psychology of other peoples’ belief; that’s a point about the moral structure of the situation. Perfidy is wrong and is always prohibitive because it rules out the possibility of any kind of exit from war, and you have to fight in a way that preserves the possibility of exit from war.

Now, know that I’ve been putting this, so far, in terms of a defender, and why a defender is not allowed to use perfidy against an aggressor, but I might just as well have put it in terms of an aggressor being prohibited from using perfidy against the defender for the following reason: the thing that’s wrong with perfidy is that it compromises the possibility of exiting a condition of war. It doesn’t matter who started the war; it’s always wrong to do something that prevents exiting the state of war, and so the prohibition on perfidy is what I said at that beginning I was going to talk about: it’s a rule for wrongdoers. It’s a rule for defenders, but it’s a rule for aggressors, too. They commit the exact same kind of wrong by engaging in perfidy, even though one is an aggressor and one is a defender; and that’s an important difference, but it’s not enough of a difference to make the prohibition of perfidy apply to one and not the other.

Let me note that the prohibition of perfidy is, in a certain sense, particular to war. It is not a special case of the wrong of deceit. We can see this by thinking about the difference between perfidy and what are often referred to as ruses of war. Here’s a nice example of the ruse of war: just before the invasion of Normandy, the allied forces built a false military base at Dover so that the Nazis would suppose that they were going to attack at Calais; this was a ruse of war. It misled their enemy about their plans to attack, but it did not mislead them about whether they were at war. Indeed, if they weren’t at war there would have been nothing about which to mislead them.

Here’s another example, less nice. Genghis Khan reportedly won most of his battles by laying siege to a city; and then as soon as the city’s defenders began firing arrows and pouring boiling oil on Genghis Kahn’s troops, they would retreat, seeming to scatter, and dropping their weapons. Shortly afterwards, the gates of the city would be opened, and the city’s defenders would come in hot pursuit, and Genghis Kahn’s soldiers would attack and kill them. It’s not a nice story. I’m not saying that there’s nothing morally problematic about this. What I’m saying is it’s not perfidy; it’s just a ruse, and the reason we can tell it’s just a ruse is that the defenders could not have fallen into Genghis Kahn’s trap unless they supposed that they were still at war. The thing about perfidy is that it repudiates the distinction between war and peace rather than hiding the difference between actual and intended tactics within the context of a war; that’s why it’s different from ruses.

I am running out of time, and so I am going to just summarize. What I’ve suggested to you today is that there is a class of rules governing warfare that we can understand in terms of the distinction between war and peace; and if we see it that way, we can see that the prohibition on aggressive war is the prohibition on initiating war; the prohibition on moving from condition of peace, however defective in other ways, to a condition of war. And I’ve suggested the in bello rules, at least the rule of perfidy, is a rule that is concerned with protecting a way out of war, and that’s what’s distinctively wrong about engaging in perfidy.

In the last half of the 20th century, many prominent intellectuals, were fond of quoting Joseph Schumpeter’s claim that the thing that distinguishes a civilized man from a barbarian is that the civilized man recognizes the relativity of his opinions, but clings to them nonetheless. I’ve offered you a different way of thinking about the distinction between civilization and barbarism. The distinction between civilization and barbarism is just the distinction between peace and war.

Arthur Ripstein: Thank you.

Niko Kolodny: So, it’s a special pleasure to introduce Christopher Kutz not simply because he’s a cherished current colleague, but also because he’s a cherished former teacher. I owe a debt to him in particular. During my qualifying exam, when he threw a flotation device after flotation device in my direction, as the boat was taking on a lot of water.

Chris is C. William Maxeiner Distinguished Professor of Law at Berkeley Law School, and he’s very much the beating heart of both the Jurisprudence and Social Policy program, and the Kadish Center for Morality, Law and Public Affairs. Chris received his BA from Yale, and then in rapid succession his Ph.D. from Berkeley, and his JD again from Yale. Before joining the Berkeley faculty in 1998, he clerked for Judge Stephen F. Williams of the US Court of Appeals for the District of Columbia, and he’s been a visiting professor at Columbia and Stanford law schools, as well as, if that weren’t glamor enough, Sciences Po in Paris.

It would be impossible to summarize Chris’ wide-ranging work, but a thread that runs through much of it is the idea that we can’t understand ourselves, or what we can ask of one another, without attending not only to what we do as individuals, but also what we do together. So, much of our moral life is irreducibly collective, and increasingly so, so that families, schools, unions, corporations, social networks, states, alliances, and so on, in which we find ourselves, both limit and extend what we’re responsible for. This was the theme of his dissertation and first book, Complicity, which in keeping with the Kantian theme was a regulative ideal for me as a graduate student, and which after two decades remains the definitive treatment of the subject.

Much of Chris’ work in the years since has focused on state violence… both domestic, reflecting Chris as a scholar of criminal law; and foreign, reflecting Chris as a scholar of international law… but this work continues to be informed by the earlier insight that morality has an inescapably collective dimension. His wonderfully titled essay, “The Difference Uniforms Make,” stresses the moral importance of the fact that soldiers are members of armies; they’re not just free agents in, as it were, a bar fight of epic proportions. His book, On War and Democracy, explores the moral importance of the fact that a nation at war may be a democracy; that is, that it may decide in ways that implicate all collectively.

Chris’ writing on these topics isn’t limited to academic audiences. In a way, that’s unusual for an analytic philosopher. He’s an engaged public intellectual who has published opinion pieces in major newspapers. I imagine that this is because, for Chris, concerns about traffic stops or drone strikes or torture are not simply humanitarian concerns, they’re not just concerns about bad things happening to people; when they’re done by our police forces, or our armed services, or our intelligence agencies, their personal concerns, at least in so far as we aspire to be a democracy, these are things that are being done in our collective name, things that in some sense we’re all doing together.

So, together, let’s invite Chris Kutz to the podium.

Chris Kutz: Thank you for that wonderfully kind introduction, and thank you to the Tanner Committee for indulging one of our own, me, here. Thank you to the Tanner Foundation. Thank you to the Chancellor for your support for this I think really quite wonderful intellectual tradition at Berkeley, and thank you to Arthur for a wonderful occasion here as well.

Now, you in the audience may not have realized it, but Arthur just gave a 50-minute brilliant lecture with a blank notepad to accompany him. I can’t do that. I’ve never seen anything like that. That was remarkable.

Arthur’s ambition in this lecture is to diffuse Hartley Shawcross’s apparent complaint about the tensions between two bodies of the law of war, the ad bellum and the in bello, and to set in motion his argument for profound unity of the two, namely that both bodies of law are oriented toward the maintenance and restoration of the condition of peace. I’m highly sympathetic to Arthur’s argument, but I’m going to play the role of complicator today in two respects.

First, I think there is more force to Shawcross’s objection, at least to a broad of puzzlement about the relation between the two bodies of law. Second, I think the issues raised by perfidy are best treated using a number of different values and arguments that together knit together the jus in bello. Arthur has said that he’ll give us a fuller answer to the Shawcross objection tomorrow, I know he will, but my point is just to underline that he’s got an important task to do.

Arthur said that the issues with Shawcross arise from his thinking that the jus in bello creates a set of permissions, and Arthur says it’s a mistake to infer permission from the fact that killing and breaking things in war does not mandate punishment, so long as the killing and breaking is done within certain rules. He gave us the clever analogy of driving rules… the rules ad vehednum, which govern who has the right to drive; and the rules in vehendo, which are the rules of the road… and it’s certainly true that the violations are logically separate. One can drive without a license without violating the rules of the road, in which case one is only liable for the former violation. Don’t do it, it’ll get you six months in jail, although probably most likely it’s a $250 fine.

But this is, I think, actually a pretty unhelpful descriptive analogy to war for two different reasons. The first is that there is no deep tension between the driving rules; both are aimed at ensuring the free flow of drivers subject to reasonable regulation. The goal of the ad vehendum rules is not to generally prohibit socially harmful activity except when engaging in it is strictly necessary to achieve a more important social goal. The goal is rather to ensure a level of competence and responsibility for those engaging in the activity; and the point of the in vehendo rules of the road is to maximize the safety of all engaging in the activity. Second, there was no sense in which someone violating the ad vehendum rules enjoys anything that can be called a permission of a privilege to drive, consistent with the in vehendo rules. The only question for the magistrate, who’s adjudicating the stop of somebody, is whether it’s one violation or two.

Now, compare driving to the situation of war under the modern UN Charter system or in Oona and Scott Shapiro’s recent book, the Kellogg-Briand structure. On the one hand, war is regarded as intrinsically a social failure… and a cause of immense social harm, whoever wages it, right or wrong… can only be defended under an argument of defensive necessity. So, it would seem that anyone violating the ad bellum should enjoy no permissive space for the resulting activity. On the other hand, the law of armed conflict provides for what is commonly referred to as “the combatant’s privilege,” meaning the right of a combatant who obeys the in bello rules to be detained and not punished if captured; in fact, the term “privilege” is a little peculiar.

We philosophers talk about this not as a privilege, but as a claim right. If you’re captured as a law-abiding soldier, the other side has a duty to detain you in proper conditions and not punish you; to detain you, furthermore, only until the end of the conflict, and then release you. This is entirely different than the driving context where, as I say, the question for the magistrate was, “One violation or two?” In war, the peculiarity of the combatant’s privilege is that not only do you have a right to, for example, maintain your rank, maintain status hierarchies within the detention facility under Geneva; you have even, in many cases, a claimed moral right, when you return home, to return home as a hero; that’s quite different from the driving case.

Now, of course one major feature of the war case is that the ad bellum prohibition is enforceable against the political and military authorities, as a crime of aggression, but it’s not against the line soldier. So, perhaps the analogy to driving would be, for example, a driver whose employer has failed to pay registration fees. We might think, in such a case, the driver has a moral, if not also a legal excuse for the ad vehendum infraction, namely ignorance of the legal situation; in that case, it might be a closer analogy. The fleet owner should be treated as solely responsible for the registration violation; and it might seem appropriate, in such cases, to detain the offending vehicle, but not the driver. But I should note that under our legal system, and every legal system I know of, drivers are held personally responsible for ensuring that their vehicles are properly registered.

So, there really is, I think, no equivalent to the Geneva system of combatant rights, in such a case; including not just the right to a POW status, but also rights to humane treatment if wounded or surrendering. These are claims of duties on the part of others. Given that we are talking, in such cases, about people who have just been engaged in the work of killing… and who elsewhere in the law, as Arthur notes, had the most limited range of excuses… the Geneva system of permission really should seem bizarre. Morally, it seems that the honorable soldier, in a clearly aggressive war, is in a bad-but-could-be-worse category of the nonsadistic murderer; but the legal regime insists that they are in the honorable, but detainable, category.

I guess one way to put this point is like, given the tension between the badness of aggressive war and the robustness of the combatant’s privilege, independent of the justice of that war, the counter-war’s law and ethics will have to point to a very grave evil that would come from not having that privilege, even for the aggressing soldier, into some very serious goods that come from having the privilege. So, the next question is whether Arthur’s proposal points to substantial enough goods and evils to explain the existence of the privilege. What Arthur proposes is that the in bello rules, no less than the ad bellum ones, are ways of seeking peace and restraining war. Put another way, Arthur wants to show that the special badness of violating the in bello rules can explain the importance of providing a kind of safe harbor for those who obey them.

The stakes are high. If we cannot justify jus in bello privilege by reference to some very substantial values that stand in independent of the justice of the cause, then on the one hand we risk holy wars, wars in which on the side of the righteous nearly all tactics must be permissible because they are striking down evil; and on the other side, for those who see themselves as likely to be condemned by other states for an aggressive war, the problem is “in for a penny; in for a pound.” If you’re going to be condemned for fighting any war at all, there’s no reason to refrain from committing in bello crimes. This was the basis for the skepticism of Carl Schmitt, among many others, of the new law of war. The drive to victory, he thought, was too strong to restrain battlefield conduct; the logic leads to total war.

Now, Arthur picks up perfidy as the example that will show the structure of the ethics of wars motivated by the need to return to the conditions of peace. As he puts it, the prohibition on perfidy is just the requirement that the means of resolving disputes is words rather than force. Perfidy, as Arthur notes, historically involves two different sorts of situation, but I think we need to separate them. The first is the perfidious use of the flag of truce, when envoys use such a flag to go behind enemy lines to parlay with the generals and then kill them; this form is tightly connected with the idea of assassination. Here, I think Arthur’s interpretation makes brilliant sense of prohibition: if perfidy is possible, then one can never trust an envoy, and so words can never help move us to peace, and that peace of words will not be possible. The point is, as he says, both broadly empirical and formal; and in its formal side, we’re meant to hear the echos of Kant’s prohibition of lying, even to misdirect a murderer; and of Christine Korsgaard’s remark about it that for a Kantian it’s better to womp murderers on the head than to lie to them because of the special badness of abusing reason in a murderer.

As Arthur says, the form of the wrong, not just its specific effects, is inconsistent with peace as a system of rational conflict resolution, but I wonder whether this very reason centered and word centered interpretation works as well for the more common temptations of perfidy: pretending to be wounded or to be a protected medical corp worker, or surrendering, or to be a civilian in order to get close enough to the enemy to attack without warning; these forms of perfidy are what soldiers contrast with the permissible category of the ruses of war, including ambushes, as Arthur discussed. Pretending to be wounded or a civilian, and so on, is effective not because it relies on words, but because it specifically invites trust, trust that the other combatant will meet with a display of humanity, concern and protection. By contrast, ruses are designed to work on a mistrustful adversary.

So, I would like to suggest that we amend Arthur’s suggestion in what I think is a friendly direction: perfidy’s wrong arises in part not because it makes peace impossible, but because it makes trust impossible within war, and so it threatens what few shreds of humanity can remain in war, and it can be harnessed for the more general goals of protecting civilians and limiting war; this is why the complication of perfidy arose historically not only as Hermes came to rely on rely on regular informs and insignia, but also with a humanitarian movement to limit civilian death and provide medical care for wounded soldiers.

Of course, we are now fully in the midst of another era of combat in which perfidious acts are commonplace; this is what the military calls asymmetric warfare, what we know as gorilla or insurgent war. Regular armies fight combatants. ISIS, Al Qaeda, routinely resort to civilian disguise, and regular armies sent into the field, special forces, who skirt the edges of the perfidy restriction by wearing civilian garb as they move about, and sometimes even as they engage the enemy. The concrete harms that the perfidy rules aim to prevent are all around us, most especially in the form of civilian deaths, and also in the form of conditions of combat that in the eyes of regular soldiers make it hard for them to feel that they can fight with honor, and which they bring home in the form of psychological trauma.

Perfidy produces soldiers who can no longer see vulnerability as an occasion for humanity; they can only see guile. Arthur called these values “chivalrous” I think to demean them as a species of knightly ethics, but the point of chivalrous ethics was to enable combatants to maintain a dignity in the eyes of God; and in our more secular times, to fight with honor. That sense of worth is in the central part of the moral psychology of war that makes any kind of restraint in war possible.

I would just add as a final remark that while I think Arthur, both in modified and unmodified form, has shown us the distinctive moral harm associated with perfidy, we shouldn’t lose sight of these other forms for support for the restriction, including support from the straightforwardly pragmatic goals of protecting civilians, and maintaining an ethos of honor within a military as a prerequisite for complying with all the other rules we insist on. The prohibition of perfidy seems to me a case of moral overdetermination.

There is a formal wrong in transforming those who should be in a state of peace into beings of war; there’s also a material wrong in that the likely effect of the breach is death of the innocent and vulnerable; and there’s further dignitary or spiritual harm in that those who contend with perfidious tactics risk the loss of their humanity and their self-understanding as fighting with honor. So, I’d would welcome Arthur’s articulation of a powerful ground for rejecting perfidy, but I would not want to see it stand on its own. Thank you.

Arthur Ripstein: Thanks so much, Chris, for those engaged and sympathetic comments. What I want to do is pick up on each of the themes that you raised. I want to start with the idea that combatants are in a certain way privileged, and say a bit about that; and in particular your claim that they are honorable, but detainable, which I think is a very nice way of thinking about it, and I want to say a little bit more by way of preview of what I’ll talk about tomorrow, because I’ll talk about this at more length then.

Then, I want to turn to Chris’ useful distinction between two forms of perfidy, which we might think of as negotiation perfidy and impersonation perfidy, and I’m going to try to suggest that there’s much more of the former than the latter in his examples, and then I’m going to try to explain the special case of his one remaining example, and then I’ll also talk a little bit about trust.

But first, the idea of a privilege: If a combatant, regardless of which side the combatant is on, is captured, that combatant can be detained, but can’t be put on trial, can’t be executed. Now, there’s something actually quite striking about this contrast: most people would think that it is better to be put on trial than to have somebody shoot at you; both are not guaranteed success, but both are things that put you in danger, but the trial has many more protections for you. Soldiers have this, or combatants have this, peculiar status of being someone who can be shot at, but can’t be put on trial, and Chris characterizes this as a kind of privilege that the combatant has.

Now, what I’m going to suggest to you tomorrow, and I’ll fill it out in more detail then, is that this is part of the same set of ideas that leads to the conclusion that aggressive war is wrong, that same set of ideas that leads to the conclusion that nations are entitled to be independent of each other. In particular, I want to suggest… and here I’m going to introduce a little piece of Kantian vocabulary… to suppose that because a combatant who does not violate the in bello rules cannot be put on trial, that therefore that combatant is participating in some form of justification of his or her conduct, is to fall into the mistake that Kant characterizes as subreption, mistaking a principle that applies at one level for a principle that applies at another level.

There’s a reason, that I’ll fill out tomorrow, that combatants cannot be put on trial, which has to do with the independence of the nations, even when they are in fact members of the military of an aggressor nation, and that they cannot be put on trial does not lead to the conclusion that they were permitted to do what they were doing. This is rather a case in which the possibility of enforcement necessarily runs out. If you think about the way in which excuses operate in the criminal law, we don’t think that the person who is excused by a mistake of fact, or by the fact that they were acting under duress, is someone who is therefore not a wrongdoer; we think that they did wrong, but are excused. I want to suggest that general type of structure applies here not because unjust combatants are excused, but because the defending nation doesn’t actually have the right kind of moral relationship with them in order to be able to put them on trial, but that is more by way of a preview and/or promissory note than an actual explanation.

But this gives combatants, even those fighting for an aggressor, this peculiar status of being honorable, but detainable. They can be contained, and they can be put on trial if they have violated the in bello rules, but they have a kind of honorable status in that it resides in the fact that the defender isn’t in a position to judge them. As Chris notes, the ad bellum rules hold against the leaders, but they don’t hold against individual soldiers; because of that, individual soldiers have this oddly honorable status, and they may be celebrated when they get home, even though they don’t deserve to be celebrated, because again there’s no one to prevent that, but more on that tomorrow.

Now, turning to perfidy, Chris draws a distinction between two types of perfidy, what we might call negotiation perfidy and imposition perfidy. Negotiation perfidy is going under the flag of truce in order to negotiate a peace, and then attacking your enemy, and he accepts my characterization of that; but he gives a series of examples of what we might call impostor perfidy where someone poses as someone who has a kind of protected situation or status, and that person he suggests can’t be analyzed in terms of preventing the exit from war, but has to be characterized in some other way. I have three thoughts about this, but one is a two-part thought. The first thought is that the other basic in bello rule, the prohibition of targeting noncombatants, interacts with the prohibition on perfidy in a certain way, and so there are opportunities for perfidy that are created by the prohibition on targeting noncombatants. That is, if you’re not allowed to target noncombatants, for the reason that I will explain tomorrow, and that is because they are not part of the war; then of course if a combatant takes on the appearance of being a non-combatant, they are purporting to not be part of the war when they are part of the war. Now, I want to suggest that those kinds of cases, though in one sense cases of impersonation, in another sense are just like the negotiation cases, and here is why.

It’s a great honor to be at the University of California at Berkeley; and I want to just mention someone who taught here for many years, the late great professor, Paul Grice, drew a very useful distinction between what he called natural and non-natural meaning. The basic thought is that if you show someone a picture that gets them to draw an inference based on information they have about the world, but your showing it does something different. If you tell them about something, the way that leads them to come to form a new belief is, of course, by getting them to believe that you intend to get them to believe that you believe that very thing. It iterates indefinitely, but the basic thought is there’s a difference… that this is actually drawing on a distinction that was already familiar in Ockham, Hobbes illustrates it with the example of, “If you see clouds, that means rain, in a natural sense; that is, it’s a reliable indicator of rain, and it’s not that you think that anyone is trying to tell you anything. But to use Hobbes’ example, if you see a piece of a bush hanging over the door of a building, you know that alcoholic beverages are for sale there. How do you know that? You know that because you know someone put the bush there in order to communicate that to you.

Okay, now that we’ve done our philosophy of language, here is the upshot for understanding the two types of perfidy. If someone who is a combatant poses as a civilian, or poses as someone who has been wounded, what they are doing is trying to convince others that they fit in a different category, especially in the case of wearing civilian clothing, and they’re trying to do that by getting the other person to believe that they intend, and so on, and that seems to me to be just like the case of negotiation perfidy; that is, they are saying, “I’m on this side. I am on the communication side,” of the distinction between using words and using force, even if they use sign language, conventional signs, or insignia to mark the difference. So, it seems to me that in those kinds of cases it is precisely Cicero’s distinction that is doing the work.

But Chris gave another example, which is an important one which is a classic example of it, and is, as he pointed out, a more familiar about which people worry a lot, and that’s the case in which someone feigns death. Feigning death is a matter of the misleading use of, as it were, a natural sign. It’s not that when the combatant sees someone lying seemingly dead on the battlefield the combatant thinks, “Oh, this person is trying to tell me that they’re dead, it’s rather they think, “This person is dead and not trying to tell me anything.” So, that is purely an impersonation case, and I agree that it requires a slightly different analysis.

Now, Chris proposes that the analysis that is suitable to it is one that focuses on maintaining trust, and I think that that’s right, but I want to just draw attention to the way in which trust figures in it, and I want to suggest that the very concept of trust is exactly Cicero’s distinction between these two different ways, and that Baier gives the example. Annette Baier had this paper, Trust and Antitrust; she basically tried to argue that trust is everywhere. For example, familiar to a room full of academics, is when you’re in the stacks in the library: you trust that no one else is going to spring out from behind a row of books and attack you. That’s just what it is to live in a civilized condition, but trust is all about people refraining from the use of violence.

Another way of thinking about this, and this picks up on a theme that will come up in more detail tomorrow, one of the things about the distinction between peace and war is that people are, as it were, entitled to be presumed to be peaceful; and the thing that we trust is that people, if they’re not peaceful, must be fighting out in the open, and so you abuse that kind of trust. But the reason that we care about that kind of trust, I want to suggest, is precisely because of that kind of Ciceronian distinction.

Now, let me say something also about the ethos of honor. Kant, when he talks about perfidy, one of the things that he says about it is that, “The use of perfidy makes those who engage in it unfit to be citizens.” It makes them unfit to be citizens because they’re in some sense incapable of engaging… or he worries incapable of engaging… in peaceful interaction with others. If someone is prepared to do that in wartime, then how could they not be prepared to do it otherwise? But notice that’s not a claim about the psychology of perfidy, though it may well be true of the psychology of perfidy. It probably is true that people who are deceitful a lot find it easier and easier… probably lying is like what they say of both fundraising and murder, that once you do it once, you lose all of your inhibitions… but that’s not the structure of the point. The structure of the point is rather that this is a principal that should be an organizing principal for your life, and so there’s something wrong with a state asking one of its citizens to engage in that. There’s a kind of incoherence in an order that is supposed to be based on peaceful interaction telling one of its citizens to engage in this kind of deceit.

Now, let me relate this to the idea of an ethos of honor. Because I don’t mean to deny for a moment that human beings, being as they are… It’s fundamental to us and to the possibility of us interacting decently with each other, that all of us accept certain kinds of constraints on our behavior; and all of us are, as it were, horrified by the thought of ourselves doing certain kinds of things; that is, the moral category of the unthinkable is something we

It’s very difficult to imagine human beings like us… with robust, effective lives, and also with strong inclinations… keeping those inclinations and keeping the seeking of advantage in check, unless our effective lives control that, in the same way that the late Peter Strawson said that we really couldn’t have morality unless we were indignant when somebody wronged us; that may well be true, but that doesn’t mean that the basis of morality is indignation; that just means that if the basis of morality is some idea that human beings have rights, that human beings like us can only be rights respecting either out of fear or out of indignation; and if we didn’t have indignation, there wouldn’t be enough fear to go around, or rather the fear wouldn’t be organized in the right way. You wouldn’t be able to have the officials of fear operating properly; that’s what a soldier is, a combatant is. A combatant is an official of fear; it is someone who uses authorized force. And if that person will use force whenever it will be effective, then force can’t be brought into alignment with right, can’t be brought into alignment with freedom or independence, as a result of which of course people will behave horrifically.

I’m sorry if my wording about chivalry suggested that I was dismissive of it. What I had meant to say about chivalry is that the prohibition on perfidy is often treated dismissively as a holdover from medieval codes of chivalry, just as so much broadly utilitarian inspired moral philosophy treats almost anything that people care about and are appalled by as a kind of holdover from it, and there’s this picture of this scientific skepticism casting doubt on these merely emotional and affective things. But of course, that kind of skepticism is corrosive; it is like the medieval alchemic solvent alkahest; it was the universal solvent. The difficulty with alkahest, of course, was that it would immediately consume whatever vessel was supposed to contain it. There would be no morality left if we allow that to happen, but at the same time I want to suggest that that is a reason to socialize people into being morally upstanding people, but a morally upstanding person is not a person who just has the right reaction; a morally upstanding person is a person who honors the right distinctions.

I want to close just by saying one very small thing about something Chris said, about the relation between perfidy and lying. Kant said some pretty extreme things about lying; I’m one of the handful of people who’ve prepared to defend Kant both on lying and on the treatment of animals, but I postpone both of those to another occasion, because I don’t think that in order to understand the wrong of perfidy you need to suppose that lying is always wrong. The problem with perfidy is, as it were, particular to the context of war. It’s precisely because war hands everything over to savage violence, perfidy says to savage violence, “Yes, and you can keep it.” Thank you.

Audience 1: Thanks very much, Arthur. I had a question about how you’re putting together the Ciceronian distinction between war and peace, and making that fundamental in a Kantian analysis. If you could help clarify this for me, I’d appreciate it. Because you talk about something like perfidy making impossible a transition from a condition of war to a condition of peace, and the Kantian analysis that you’re offering suggests that this is a categorical matter, but the language of a transition from war to peace suggests that it’s going to be difficult not to think about this in some sort of consequentialist way. So, I’m just trying to figure out, for example, what we do with a case, say, where perfidy allows for the extinction of a condition of war. A particularly hard-bitten cadre of generals is keeping a combatant power in the war, perfidiously you infiltrate and assassinate those generals. If you thereby bring about a condition of peace perfidiously, what is… I take it that you’re not actually talking about that kind of an actual transition from war to peace, but a category distinction that you want to insist on, and therefore is it really about a transition from war to peace at all fundamentally?

Arthur Ripstein: Thank you for that. I take it your thought is that whenever we talk about a transition we’re talking about going from condition A to condition B, and you’re trying to press me to concede that going from condition A to condition B is what matters, rather than the particular means that you use. I’m afraid I need to bring in a tiny bit of additional Kantian architectonic here, but I think it’s a fairly familiar feature of ordinary moral thought, and that is the thought that much of morality, and certainly much of political morality, is not actually about ends, but is rather about means; and so the most familiar, and I think important moral thought, is that ends do not always justify means.

Now, once we see that ends do not always justify means, of course that raises about how to think about the relation between them, and whether the means are restricted in a way that are going to somehow interfere with achieving worthwhile ends. Here, the Kantian answer I think is clear: if you suppose that the ends don’t always justify the means, the next question that you have to ask must be a question of the general form, “What means are admissible here?” and the Kantian thought is that in order to make sense of rightful relations between human beings, you have to begin with the thought that there are certain means that are ruled out independently of the ends for which they are used. I think many of the most familiar prohibitions that we think of in ordinary morality, what we might think of as the prohibitions of the kindergarten class; that is, “Don’t run with scissors. Keep your hands to yourself,” and so on. Those kinds of prohibitions don’t say, “Don’t run with Scissors, unless you’re trying to achieve this”; they don’t say, “Keep your hands to yourself unless you’re trying to achieve that.” They say, “Don’t use these means.” At the interpersonal level, morality if full of those kinds of ideas.

Now, the striking feature of the Kantian account of public right is that it supposes that there are certain means that are ruled out simply as such, and in particular the most important of those are the means of using force in a way that makes it impossible to enter into rightful relations with others. Now, this turns on a larger argument… which I haven’t even begun to make here, but I will merely gesture towards… according to which it’s not possible for us to enjoy our rights unless we have some rudiments of a legal order, and so it is an argument against certain forms of philosophical anarchism; but if you accept that argument, and you accept the Kantian view that the basic morality is one of restrictive means, then the unit of analysis has to be the question, “Are these means available?”

Are means that are inconsistent with the possibility of a future peace available, and the answer is they’re not; and then the question is, “Well, what if you could do it in order to achieve a peace?” and here the answer is not the same as, but is strikingly parallel to, the familiar thought that in order to stop one person from murdering another innocent person, or from murdering two innocent people, you’re not entitled to murder a third innocent person even if that would be effective, because those means are simply not morally available to you. I want to say the same thing about perfidy precisely because it is a wrong that is inconsistent with peace, and so inconsistent with rightful relations between human beings.

Audience 2: Arthur, I want to put a little pressure on the triangulated relationship between lying, ruses, and perfidy. I was fascinated by your confession that you have an absolutist position on lying. In my own dealings with this, I’ve always felt Benjamin Constant has the better of that argument, but I understand that one could make a strong case for the notion that lying under all circumstances morally unacceptable. But if you have that as the englobing larger argument, how can you make a distinction between two sub-categories: ruses, which are somehow okay; and perfidy, which is not? I mean are they not both instances of lying? And if you accept ruses, are you not giving us a consequentialist instrumentalist argument, which in a way also sneaks into the perfidy claim as well to the extent that perfidy is in the service of something else besides simply maintaining moral goodness. So, I’m a little nervous about how that absolutism becomes relativized by that very interesting distinction between ruses and perfidy.

Arthur Ripstein: Here is a note to myself: never say, “I’m not going to explain this now,” because someone will then ask you to explain it.

Briefly, my claim about the wrong of perfidy is a claim about how it is a wrong that is particular to war; and the thought is that that wrongness that is particular to war… that is, its relation to the possibility of a future peace… is itself sufficient to show how it differs from ruses. Now, when I talked about ruses I did not say that they were morally unproblematic, and certainly the Genghis Kahn case seems to be morally very problematic; he was a war lord. There’s not a lot of redeeming stuff going on in the Genghis Kahn story, as I related it to you. The point of the story was to say not committing the particular wrong that is proprietary to war. Now, you asked, “Well, what about my readiness to defend Khan’s absolutism about lying,” and here I won’t go into that. I said I wouldn’t, and I really won’t, even though you ask, but here is a way to think about what Kant is doing in his notorious claim there. He is not giving a user’s manual for what to do when confronted with a murderer at the door. He is giving an explanation of what it is that is distinctively wrongful about lying in the context that Constant is concerned with; that is, with political leaders lying to their citizens.

Kant, in the Doctrine of Right, written the same year as the essay, “On the Supposed Right to Lie,” says that lying is not a private wrong. If I lie to you about something that has nothing to do with anything to which you have a right; that is, it’s not defrauding you in a commercial transaction, and it’s up to you whether to believe me or not. It’s not that lying is always wrong in every way; it is rather that there is something that is distinctively wrong with public officials lying; and that is because, as Kant puts it, elsewhere the fundamental principle of peace, and the fundamental principle prohibiting perfidy, are the same principle. So, he tells us also in the Doctrine of Right that when two garrisons each engage in a false surrender, and a kind of tit for tat, neither wrongs the other… so it’s not that the second one does it because the first one did it; the first one didn’t wrong the second either… but they instead do wrong on the highest degree because they act in a way inconsistent with the possibility of a future peace.

The thought is this idea of publicity, and this idea of a public rightful condition, and this idea that relations, both between individual human beings and relations between independent nations, should be conducted peacefully, is the thing that gives us the wrongfulness of lying. There’s then a question of how far that percolates down, but it isn’t the idea that lying is always wrong, and so therefore perfidy is wrong, and so there is room for the thought that even in cases where ruses are wrong… I’m happy to say that Genghis Kahn’s ruses are wrong for a whole bunch of reasons, including the fact that they are deceitful, but they don’t commit the wrong of perfidy.

So, what I’ve been trying to do in today’s lecture is to isolate the distinctive nature of the in bello wrongs, and that isolation was meant to turn on the possibility of a future peace. Another way of putting the point is that in wartime there are… Chris, you had a beautiful turn of phrase here that I’m not going to remember… but there are almost unlimited opportunities for people to behave badly, and pretty much all of them get taken up. So, it’s not that it’s easy to do the right thing, and it’s not that if you satisfy all of the in bello rules there’s nothing wrong with what you’re doing, the point is rather that these capture a distinctive kind of wrong; and the distinctiveness of that wrong, what goes to explaining how it is that that wrong can be committed by either side in the war; because the distinctiveness of the wrong, the related to the distinctive wrong of breach of the peace, is not merely dependent upon or predicated upon that wrong.

Niko Kolodny: I’m sorry that we didn’t have time for all the questions, but I hope that you’ll come back tomorrow, and perhaps you’ll have a chance then to ask them, for the second installment, “Combatants and Civilians,” where there’ll be commentary from professors Hathaway and McMahan.

But, in the meantime, let’s thank our lecturer, Arthur Ripstein, and our commentator, Chris Kutz.