Jay Wallace: Welcome everyone. I’m Jay Wallace, vice chair of the Berkeley Tanner Lectures Committee. I’m very pleased to be able to welcome you to the third day of this year’s Tanner Lecture events. By now, everyone’s familiar with the cast of participants in these very interesting lectures. We’re delighted to have Arthur Ripstein from the University of Toronto as our main Tanner lecturer. We have three distinguished commentators, Chris Kutz from UC Berkeley, Oona Hathaway from Yale Law School and Jeff McMahan from the University of Oxford. What we’re going to do today is each of the commentators in the order I’ve just read their names or introduced them to you will present some brief comments, the second set of comments on Arthur’s lectures.
We’ll take a brief break. Arthur will be given an opportunity to respond to the new comments that the commentators have offered. Then, we’ll open things up for discussion. My main job today, I anticipate, is going to be to interrupt Arthur so that we ensure that there’s enough time for questions from the audience. I’m confident to my ability to do that. It may require the use of some kind of force. I think it’s consistent with the Kantian principles. Without further ado, Chris Kutz, would you like to come up and …
Chris Kutz: Thanks very much. Before I start, I just wanted to note publicly just to … I don’t know if Arthur … However, thank you for the kindness you did very, very early in my career. In fact, before it even got started, you were the reader for Cambridge University Press of, I guess, my dissertation which you approved as a book with enormously helpful comments. Really, everything began there. I just want you to know I think of that all the time. I think of the effort it took and the kindness and the attention you gave that. I’m meekly thankful for you suggesting me as a commentator.
This is a real honor to be here and to be an interlocutor as you develop these really great powerful ideas, so thank you. I’d like today to make three different points. The first concerns, the force of Arthur’s complaint that a category error is at the root of making sense of what goes wrong in in bello violations. The second concerns, what seems to me an unstated but implicit and undefended skepticism about international law. Oona will have much more to say about this, I’m just going to really note it. Third is I think a chance to emphasize what I most appreciate in these lectures, which is Arthur’s clear separation of the moral from the political in thinking about war.
I think that’s a really valuable and distinctive perspective that I want to make sure that we pay attention to, collectively. First, I’m hoping Arthur can expand his remarks from yesterday to say more about what moral or normative force what he called the categorical or formal argument as opposed to have. Arthur has rejected many times what he calls empirical arguments and insisted that the only kind of arguments that matter are categorical. I understand for someone who accepts a broadly Kantian analysis or morality and universalization arguments, why these are supposed to have force?
They’re supposed to be demanded by our self-understanding as reason errors. Arthur has conspicuously not relied on such a framework over these lectures. I understand what he has written and what he said yesterday. His argument is something like this, since the only just war is a defensive war against unjust attackers, it can only be permissible to harm unjust attackers. This is meant to follow definitionally or conceptually as it were from the idea of a just war. This makes the restriction that only combatants can be targeted a formal categorical matter. It seems to me puzzling why a definitional assertion should have the force it does. Let me make this concrete.
Take a just defender. Imagine an Air Force cornel or somebody who believes he can end a war quickly and achieve a peace by bombing the aggressor’s parliament which voted for the aggressive war. Cornel predicts plausibly that the replacement government will end the invasion. His general says, “You can’t do that. That will violate distinction.” The commander says to him, “You’ll be making a category error here. These are civilians, far from a trigger, and so not properly part of the war.” The general says, “Fine. I’ll commit a category error, but I will win a just war more quickly and that will lower human cost.”
What more does Arthur have to say to him as a matter of moral or political reasoning? Unless something like Kantian machinery is rolled out or some independent assertion of the right to life non-aggressing, non-combatants, we’re not quite sure what the force is. Take the perspective of an aggressor this time, waging a reparative war to regain territorial lost in a prior war. The aggressor has deliberately killed civilians holding land, refused to vacate. The aggressor’s general is brought up on distinction charges. Arthur is prosecuting and says, “As an ad bellum matter, war is only justified as a matter of defense against attack. Therefore, only targeting those engaged in attack can be justified.”
You thought you’re fighting an aggressive war but in fact, you’re fighting a defective defensive war. You were committing a category error. These civilians weren’t attacking you. From a moral point of view, why can’t the aggressor answer? “I wasn’t committing category or formal error, I was rationally pursuing my war’s ends.” Arthur would say, “Well, since the only war that can be justified is a defensive war, no killing of non-combatants can be justified.” Because they can never be understood as attackers by the law, whatever the subjective view of the fighters.
Of course, that’s what the law is now, that civilians, because they pose no threat are liable to be killed. What’s puzzling is that Arthur seems to want to link up this principle to the idea of a future peace and internally to the principle of action by the aggressor. The peace imagined by the aggressor nation isn’t the peace of a just defender, it’s a peace based upon forcible change. Now, Arthur seemed to suggest that there’s no coherent alternative to the just defender’s limited aims in war, that any other conception of war makes war a matter of what he called extermination. Jeff mentioned this yesterday.
Even for an aggressor’s state, that seems to me an exaggerated characterization. Saddam Hussein in invading Kuwait did not seek the extermination of the people of Kuwait, only to control its oil fields in repair of what he thought of as the theft of Iraqi oil. Putin, in launching a Covert War on Ukraine, sought the expansion of the Russian state, not an extermination of Ukrainians. George H.W. Bush invading Panama, sought only the pliability of an American client and perhaps to stop the flow of cocaine, not extermination of Panamanians. Phrasing the injunction to protect civilians in terms of the need to avoid formally or empirically, a war of extermination doesn’t seem to be plausible.
Given those very specific aims, control of oil, territorial rule, political control, it’s hard to see relative to the logic of the aggressors why they shouldn’t use force against civilians who stand in their way, oil workers or politicians. There’s might be a different way to see this issue. Arthur wants to copy over the restrictions on defenders to aggressors. He says the logic is the same. If the only just war is against unjust attackers, the non-combatants can’t be permissible targets. For aggressors, just defenders can’t be permissible targets either. Soldiers and civilians are both out of balance.
With Arthur’s argument, doesn’t seem to show that there’s anything distinctively wrong for unjust aggressors in attacking civilians either internal to their own logic or in relation to the logic of the just defender. We don’t get the independence of the in bello restriction from the ad bellum prohibition that he promised. That is, there’s no distinctive wrong it seems to me on his theory or it’s hard to see why there is a distinctive wrong in attacking civilians. Why does this matter? It matters because Arthur wants to vindicate the structure of the actual law of armed conflict with its regime of symmetrical impunity, just and unjust combatants alike, and to underline the special badness of violations of the jus in bello.
Most of his argument seems to work for the just defender. I worry that in order to defend the principle of distinction, because I mentioned with the prohibition on perfidy on Tuesday, we’re going to want his many conceptual resources we can find to defend civilian protection. Among those resources are conception of an individual human right to life, of honor or dignity in combat, of the basic consequentialist goal of less killing over more killing, and relatedly, the relative incentive effects of punishing the killing of civilians while not punishing the killing of soldiers. Added together, those are considerations internal to the deliberations of an aggressor as well as the defender.
I’m worried that Arthur is giving away those resources when he might want to draw upon them. The second point I wanted to raise concerns what seems to me a non-argued skepticism about international law. Now, Arthur says that the most basic reason for the impunity of soldiers who fight aggressive wars but do not violate the in bello laws is that any other regime would involve the subordination of one legal regime to another. This would amount to a kind of victor’s justice, objectionable. Not just because victors tend to be poor at administering objective justice but because as a principled matter, it seems, one state cannot adjudicate the permissions granted by another state to its soldiers.
“Specifically, one nation … ” A quote from this paper, “does not have the right to preempt another nation’s legal order and its oversight of the military.” I think you said that verbatim yesterday as well. Now, I’m not sure I accept this proposition as stated. It seems to me that nations whose laws and procedures protect rights and target grave wrongs do have the right to do just that as a matter of universal jurisdiction. Universal jurisdictions are pretty standard idea and it’s accepted if relatively rare feature of international law. It’s how Spain can charge Pinochet with human rights crimes. I don’t think Arthur accepts his own limitation either.
At least I don’t see why, if one state can punish the in bello crimes of another state soldiers, it can’t punish their ad bellum crimes. There will be fact intensive and judgment sensitive questions about both these kinds of violations and the law in some aspects of in bello restrictions especially as related to proportionality or actually even much more complex issue that Oona adverted to you yesterday about who counts as a combatant. These questions are not necessarily simpler than the ad bellum law of aggression. Since Arthur thinks there is room for adjudication of in bello complaints, I don’t see why there’s not for ad bellum.
To be concrete about this, why should we ignore the possibility of international adjudication under a regime like that of the amended Rome Statute which criminalizes aggressive war with respect to political and military leaders and in bello violations by alliance soldiers? We could re-amend the statute. It’s hard to see as a conceptual matter what would be wrong to expand the jurisdiction for ad bellum war to alliance soldiers. They could have particular excuses, and so on. Such a system would not represent the subordination of one domestic legal system to another domestic legal system, but the integration of all domestic legal systems within an international order.
Even if my imaginary international system could not impose direct punishment on alliance soldiers, as long as, say, they stay within domestic territory, could ostracize them or outcast them in analogy to the state level system that Oona and Scott Shapiro have described in other writings. Let me be clear, I’m not trying to argue for a system of punishing alliance soldiers. As a more general matter, I think the context of war is one among many where we can think about illegality without having to link it to individual punishment, denunciation, demands for apology, justifications for broadly imposed reparative taxes.
All of these are consequences that can follow from judging that there’s been an ad bellum violation. They don’t need to be isolated to military and political leaders. I also think there are a lot of familiar reasons to maintain the system of combatant privilege including considerations, reciprocity, fairness, and the incentive effects I mentioned earlier. Although I agree with Arthur that we don’t really know anything about the empirics of the alternative, but I do think that the formal considerations Arthur has been discussing don’t provide the justification we need for thinking that the level of principle that there’d be something wrong with the kind of international model I’m suggesting.
My final point is a full-hearted endorsement of the main theme as I understand of Arthur’s project here, which is to detach the ethics of war considered at the level of ordinary interpersonal morality from the ethics of war considered as the species of politics. This has been implicit in his dismissal of an individual ethic of honor in the case of perfidy and in his argument yesterday for impunity and distinction. In the case of distinction and impunity, I agree with Arthur that thinking about the issues from the perspective of interpersonal morality brings confusion more than clarity, makes complex which would be simple and what in the context of war needs to be simple, namely, the protection of civilians.
Individual morality is complicated with our webs of complicity in our complex causal chains. Trying to tie the institutional form of war’s ethics to the complexity of the individual level risks the little progress the international system is made. Trying to defend the institution’s bright-line rules as second best approximations of individual morality invites efforts by individuals to collapse the rules into situation specific judgments. That way, disaster lies. I think Arthur shows us two ways to draw the distinction between political morality and individual morality. The first is between essentially collective concerns and individual concerns.
The second is between a certain kind of ethical realism and a kind of Utopian idealism. I think both aspects are at work in Arthur’s argument in favor of the former against the ladder. Take peace, its protection and restoration. Peace is the goal of the laws of war in Arthur’s argument. Peace is not an individual state, it is a collective state in which a dually constituted authority is in place to adjudicate conflicts among individuals so that all might live ideally in a harmony and reciprocity and at worst, in the absence of violence, just a state of law. It’s good as essentially collective, whether we conceive it as a kingdom of ends or as democratic citizenship.
Its value plays out over time and over the population as a community that develops common norms and objective institutions to maintain its ethical character over time. I know that the idea of a political order enabling conditions of equal freedom is a powerful theme in Arthur’s work. I simply want to highlight how distinct of a view it is and how useful I think it is to bring it to bear on the ethics of war. Individual morality it seems to me is interested in peace only and so far as it involved in absence of immediate aggressive threats to persons and the things they care about or need.
David Roden, who is a philosopher on the individual side of morality, the morality of war, argues for a highly restrictive conception of self-defense. He asks us to imagine that some aggressor comes to live in your house and posing certain new rules on the house and refusing to live but not credulously harming you or your family even over time. You could try to subdue this interloper, but doing so imposes risks of harm or death on your children and your neighbors. Given that lives are at stake against a much more abstract value of autonomy, Roden concludes that morality forbids defense of your home in these cases.
How dare you think about sacrificing the life of your child, risking the life of your child simply to be master of your own house? Only if your life or the lives of those we love are threatened are you permitted to try to subdue or kill your aggressor. It seems to me plausible that individual morality speaks in these terms, the good of life demands very great sacrifices from us to protect it in restricting our ability to secure things were nonetheless right to want. I think the flaw in Roden’s example is elsewhere. It’s that it’s his politics is the moral case at large. I think it’s as much a fixed element to moral judgment that we are not individually entitled to kill except in direct self-defense.
It’s that we are permitted to kill or use other means of violence to protect our ability to have the political community we want to have even if the alternative to fighting is not death but only collective subordination. Maybe there are limits, maybe we could not justifiably resist an invasion by Canada seeking to impose single-payer healthcare and parliamentary democracy. That maybe a limiting case. The collective state of peace, in other words, cannot be decomposed into individual statute and into individual statuses. We will misunderstand the value of political freedom if we do that.
As I say, Arthur’s model of ethics for wrongdoers represents a certain kind of realism, not utopianism. By realism, I don’t mean what is sometimes called reasons of war, which were said to justify departures from the law of war. By realism, I mean that Arthur takes as a starting point a historically situated ethical conception of conflict. One situation in this case is a culmination of the Hague, Geneva, and UN conventions and treaties. While the avoidance of armed conflict is a goal of the system, it makes room for a great deal of war and other forms of political violence including revolutionary violence with the additional protocols called Wars of National Liberation.
Arthur’s argument makes clear that he does not aim in the list to justify war, but he is developing a model of political morality that takes its existence in some limited form as a fixed point. I mentioned before a risk of a certain model of interpersonal moral analysis that threaten central limits on war. There’s also a risk in Utopian model that set itself categorically against war. We’ll have nothing to say to our politics or to soldiers who aim to fight in compliance with in bello rules that they can see as having ethical value within war. Its Utopianism comes at the price of any critical purchase. What Arthur has delivered instead is a model of ethical reflection on war that can engage in terms both idealistic and realistic with our political moment. I’ll leave it at that. I think I was supposed to emphasize the last sentence more.
Oona Hathaway: Well, it’s been a real pleasure to be a part of this conversation. I’m glad to have a chance to talk to you all again today. Yesterday, I promised to return to a final critique and I plan to make good on that promise today. That is to focus on a concern that Chris also has just raised that is not entirely clear what Arthur’s position is on the … what he calls a voluntary law of nation or today, we generally call international law. I’m going to focus on that today. There are points at which Arthur’s argument seems to be quite skeptical of international law. He seems to embrace the view that no authority can be supreme over the state and not another state and not it seems an international organization or international law.
Arthur argues, for example, that a key reason that soldiers who fight aggressive wars are immune from prosecution. It’s that putting them on trial would involve the subordination of one nation’s legal order by another. He explains, “One nation cannot put in others. Combatants on trial because it does not have the right to preempt another nation’s legal order and it oversight the military. The aggressor’s legal system,” he goes on to explain, “cannot generate novel moral permissions or legal permissions that bind the defender’s legal system. Then therefore, likewise cannot impose obligations on the aggressor’s combatants.”
Thus, “It cannot punish them for violating those obligations.” Why not? Take the crime of aggression, which was the centerpiece to the Nuremberg trials which Shawcross spoke in those lines quoted by Arthur at the opening of his first lecture. The crime of aggression is a crime of waging and illegal aggressive war. True to the modern day Rome Statute that creates International Criminal Court or ICC grants jurisdiction exclusively with regard to those who plan and execute their aggressive war. As Chris just noted, the choice is really just a prudential one, it’s not essential to the ICC.
It was really a choice that was made in order to limit the scope of the statute, but there’s nothing essential about the statute that requires it. It’s not necessarily inherent to the crime or the capacity of states to choose to grant jurisdiction over the crime to an international forum. They could in theory do so. Indeed, the International Criminal Court has jurisdiction to prosecute several violations of international humanitarian law. It gains that jurisdiction by virtue of states consent to the jurisdiction through acceptance of the Rome Statute that creates the ICC. I would argue that the creation of the ICC is the exercise authority of states, not an infringement of it.
By agreeing to create the court and granted jurisdiction, the states are better able to effectively enforce key international legal principles to which they’re committed. Now, I think, but I may be mistaken and I invite Arthur to say more about this, that he may reject this account. In this respect, Arthur’s argument appears not altogether different from a view of international criminal law, now most recently and famously associated with John Bolton. I’m trying to be provocative here. I assume this is going to elicit a response.
John Bolton has argued that the International Criminal Court is impermissibly exercising authority over the United States by investigating allegations that the United States is engaged in torture in Afghanistan. Bolton claims that the ICC’s investigation is an affront to U.S. sovereignty because it claims the right to assert ICC authority over the United States. Indeed, he has written sanctions against the court, against its personnel, against the judges, against any state that cooperates with International Criminal Court in this investigation. In fact, threats that were made good last week when the U.S. withdrew U.S. visa from the prosecutor with the ICC making it hard to see how she’s going to fill her obligation, actually report at the UN in the United States, has been very aggressive in this view.
Now, I would argue that Bolton is wrong. The ICC has jurisdiction over the United States and the alleged violations of international humanitarian law in Afghanistan by the United States because Afghanistan is a party to the Rome Statute. The Rome Statute’s jurisdiction extends the acts by a state party and the acts that take place on the territory of a state party. Because Afghanistan is a state party and the acts allegedly took place on the territory of Afghanistan, therefore the jurisdiction extends to those acts and therefore to the citizens of a state that’s not party to the ICC.
They committed their crimes on the territory of a state that is party to the ICC. U.S. persons are the subject to the jurisdiction of the ICC because the violations took place on the territory of a state party. Now, in some sense, I suppose the investigation of the United States by the ICC is the subordination of the U.S. legal order, not so much to the ICC but maybe to Afghanistan, to the Afghan legal order because the court gains jurisdiction over the United States by virtue of Afghanistan’s decision to accept the jurisdiction of the Rome Statute. With it, the ICC’s jurisdiction on its territory by virtue of which the ICC gets jurisdiction over the United States.
The United States knowingly took its actions on Afghan territory. Ordinarily, we assume that states have the right to regulate the conduct of nationals of other states on their own territory except in situations where they’ve agreed not to do so. Now, Arthur might have a stronger argument when it comes to domestic statutes that permit the exercise of universal jurisdiction over work crimes, which again Chris has also briefly mentioned. Nearly every state that’s party to the Rome Statute has incorporated the crimes into their own domestic law. They’ve criminalized all the crimes that can be prosecuted at the ICC.
They’ve done that to take advantage of what’s called the complementarity provision. The ICC will only take jurisdiction over a case if the state itself has not prosecuted or at least investigated the crime. All the states that are party to the Rome Statute have incorporated the criminal prohibitions in their own statutes, in their domestic statutes so they can prosecute them domestically. In many cases, they provide for universal jurisdiction over those crimes. Now, notably, most recently, the only prosecutions thus far for the war crimes in Syria have taken place through precisely these kinds of domestic statutes.
Sweden and Germany have prosecuted a number of people for committing war crimes in Syria. Indeed, Germany has set up a special war crimes unit to prosecute international crimes. Two years alone has received 4,000 tips of potential war crimes and crimes against humanity, most of them concerning crimes in Syria. Similarly, a court in Austria has convicted a Palestinian man who’s at asylum of war crimes for shooting soldiers or to combat following a battle in the city of Ams. Would Arthur consider these impermissible assertions of authority of the prosecuting state? At least at some parts, it seems so.
That would then rob the international community of one of its most powerful tools that it has to address atrocities and bring those guilty of them to justice. Now, I think the better explanation for immunity from prosecution of combatants acting in behalf of states, the fight consists of the jus in bello rules is this. Members of states armed forces are immunized from prosecution even in an unjust war, because states have voluntarily consented to rules that provide for such immunity. States that are party to the Geneva Conventions agreed to a range of rules that regulate their conduct more and they grant to one another immunity from prosecution for members of the Armed Forces that follow those rules.
Now, the objection to this view, not necessarily Arthur’s but one that he summarizes in the written text is that we do not ordinarily think that states have anything like this kind of power, the power as it were to permit their innocent citizens serving in the Armed Forces to be murdered by an aggressor. I think that’s the wrong way to think about it. The state is agreeing to immunize the person who does the killing in return for the other side doing the same. That’s not the same thing as allowing murder, though admittedly it might have the same effect in the way that requiring evidence establish “beyond a reasonable doubt” that a person committed murder might effectively allow person who succeeds in covering up the crime to kill without penalty.
This is a better view as reflected in the fact that a combatant that is a member of Armed Forces of a state that has not ratified the Geneva Conventions would not be immune from prosecution regardless of whether they were fighting a just or an unjust war. That state neither gives nor receives immunity. Now, of course, no such state exist because every state has chosen to be a party to the Geneva Conventions. That doesn’t meant that a state couldn’t exist that was not party. In short, it’s not clear where Arthur stands in what is perhaps the most foundational principle of international law that states have the capacity to voluntarily agree to be bound in the future allowing themselves in the process to further their best long-term interest even at the price of short-term constraints.
I hope that Arthur will say more about the proper way to understand international law and international institutions in his framework. Now, my final point is a simple observation, not just about Arthur’s work but about the body of work of which its part that I have furiously worked to familiarize myself with in the last several weeks. As I read this body of work on the moral foundations for, I begin to appreciate the effort that was being made to try and ground the rules, the international lawyers often take it face value. I thought that’s incredibly valuable and enjoyed reading all this work.
I found it notable that more philosopher spends so much time focused on rules that govern conflicts between states, why international lawyers called international armed conflicts or IACs. These rules are well settled. I don’t think they’re going to change any time soon. They’re also nearly, if not, entirely obsolete. That’s because the prohibition on war between states has been remarkably successful and nearly eliminating the international armed conflicts to which these rules apply. Indeed, it’s one of the great ironies that the four Geneva Conventions came into being just in time for them to be largely irrelevant.
All of this doesn’t mean that it’s not permissible or valuable to critique the rules, of course. It does mean the audience and the effect of the work will be more limited. Where international lawyers like me could really use the help of more philosophers is in an adjacent area of the law, the law governing non-international armed conflicts including transnational, non-international armed conflicts. I know it sounds like an oxymoron, but it is a category. These aren’t conflicts between states and organized armed groups and between organized armed groups themselves have skyrocketed in the same period that international armed conflicts had become largely extinct.
Syria, Yemen, Iraq, Somalia, Sudan, Ukraine, Libya, and Mali, to name just a few have active non-international armed conflicts. Many of them involving states. The rules governing these conflicts are radically underdeveloped. The only provision of the Geneva Conventions that formally apply to these conflicts is the so-called Common Article 3, called Common Article 3 because that’s common to all four of the Geneva Conventions. The single article out of a very long set of conventions. That article is brief. It offers very little guidance. Additional Protocol II which was created in the ’70s to elaborate rules for non-international armed conflicts has helped clarify matters but is not been accepted by many of the states that are most involved in non-international armed conflicts including the United States.
This leaves a number of legal and moral questions highly contested. When should a civilian who assist the war effort be immune from targeting? When should that civilian no longer be entitled to that protection? Is the banker who was a banker in town before the Islamic State arrived and continue to serve the banker now for the Islamic State now a legitimate target? What about the truck driver delivering fuel? The sex slave? What about voluntary human shield who used the principles of distinction and proportionality to protect combatants? What obligation should states have for the action of non-state actor groups that they finance, arm or advice?
If non-state actor groups pose a threat to a state outside the one in which the group is located, should that threatened state be able to act against the group even if the territorial state refuses to consent? This is the famous unwillingly and unable theory. If the territorial state refuses to consent, is the state that takes action against the organized armed group in an armed conflict with that state even though it’s not using force against the state’s own forces? I could go on. There are many more questions like this. These are all questions that are deeply contested and how much more philosophers could, and I hope will. I hope Arthur will continue to have a valuable impact. With that, I will close and of course, the rest of the conversation.
Jeff McMahan: Okay. Let me preface my remarks by saying that my comments are going to be primarily concerned with morality rather than with international law. They’re relevant to Arthur’s project because as I see at Arthur’s project is to try to identify the moral basis for the law as we have it or the law as it ideally ought to be. What I want to do today is to make a case for a much longer list of just causes for war than Arthur recognizes. I’m going to be one of these reactionary classical just or theorist he cites in his text who has a longer list. I’m certainly not interested in defending punishment as a just the aim of war or some of the other aims that the traditional just or theorist or classical just or theorist attempted to justify.
I do think that there are other categories of war besides national self-defense or defense of another state that has been attacked are permissible. Let me begin with humanitarian intervention. Arthur says that humanitarian intervention is normally impermissible and that’s because it initiates a condition in which force decides. He cites one exception, that is when conditions of barbarism prevail. By barbarism, he means conditions of, for example, institutional slavery, crimes against humanity, genocide. When those conditions prevail, what he says is there is, in fact, no law. That’s what he means by barbarism.
In those cases, humanitarian intervention does not substitute force for law because law doesn’t exist. In effect, a situation in which force decides already exist in the absence of law there. He says that in other conditions such as despotism, there is law and there is domestic peace even if there is systematic injustice and repression that includes violence against individuals. In these conditions, unless they rise to the level of barbarism, humanitarian intervention is impermissible. That’s partly because it involves the initiation of a condition in which force decides and partly because humanitarian intervention involves the imposition of one legal order on another.
Now, I want to defend humanitarian intervention in some of these conditions that don’t rise to the level of barbarism. Start with a third-party defense of another or other defense at the individual level, among individuals. Suppose, for example, that this is all occurring one legal order, an agent of the secret police is about to kill a human rights activist within the society in order to prevent this human rights activist from exposing some of the human rights abuses of the regime which this agent of the police represents. In this case, the police agent has already created a condition in which force decides.
That is, unless somebody uses force against the agent of the secret police, the secret police agent is going to kill this innocent person. I’m stipulating this person as innocent. By engaging in other defense, a third party defender wouldn’t violate the prohibition against creating a condition in which force prevails, already is that condition. All of these people are citizens of the same country, so there’s no question of imposition of one legal order on another. I think that my strong intuition is that the citizen may permissibly kill the police agent to prevent the police agent from wrongly killing the human rights activist.
Notice now the agent of secret police is actually an agent of the state. In a way, the aggressor in this case is the state. I think that if a private citizen within that state may permissibly kill the agent of the secret police, another state should have the same permission as well. I don’t see why if an agent of another state were to conduct the defense of this innocent person rather than a citizen of this state. That would make all the difference. Arthur says no, another state may not intervene to prevent this murder. Now, I’m going to give you another hypothetical case.
JSuppose that the third party who can prevent the murder human rights activist by the agent of the secret police, is actually the ambassador from another country. There he is, walking down the dark alley and finds the secret police agent about to kill the human rights activist. The only way the ambassador can prevent the killing is to kill the police agent. Well, I think it’s entirely permissible for the ambassador to engage in third party defense of the innocent person. I think, in fact, not only that he’s permitted to do that but he’s morally required to defend this innocent person against wrongful attack by the secret police agent.
In particular, that obligation seems to me quite strong because the cost to the ambassador is not prohibitive. That is, the most that can be done to the ambassador is that he will be expelled and replaced by another ambassador. Now, the ambassador is an agent as Arthur paints to tell us yesterday of his own state and as an agent, therefore, of his own legal order. This is particularly clear if he takes advantage of his diplomatic immunity to avoid sanctions for engaging in other defense. In this respect, his status, his legal status and perhaps his moral status in Arthur’s view is exactly like that of a soldier of the state of which the ambassador is an agent.
Why should it make a difference whether it’s the ambassador who does this rather than a soldier of another state? Well, maybe you can see where I’m going. Let’s increase the numbers a bit. It’s not just one human rights activist, it’s a very large number of political decedents who were now about to be harmed and killed by agents of the secret police. Let’s suppose there are lots of diplomatic staff at the embassy who enjoy diplomatic immunity. They could actually, by engaging in third party defense of these political decedents, prevent the killing of hundreds or even thousands of these innocent people thereby, enabling them to escape.
To do that, they’d have to kill lots of agents of the secret police or maybe even of the military. Well, I think if we increase the numbers, that doesn’t change the situation at all. My view is, if a third party citizen of the state is permitted to kill the secret police agent, then the ambassador is permitted to kill the secret police agent. If the ambassador is permitted to kill one secret police agent, then lots of embassy staff would be permitted to kill lots of secret police agents to defend lots and lots of innocent political decedents in this other state. If that’s true, why can’t soldiers of the state do the same thing? After all, they are agents of the state just as the embassy staff are.
I don’t see any difference between humanitarian intervention and any of the previous cases I have cited. I think, in particular, if the effects of humanitarian intervention and the side effects and so on would be no worse than the effects of large scale other defense by the embassy staff that just follows that humanitarian intervention is justified in this kind of case. Indeed, if soldiers could do the job in a way that it would be more efficient and cause less harm than would be caused by the embassy staff, then humanitarian intervention would be required rather than individual actions of the embassy staff would be required by what I call the requirement of necessity when I was talking the other day or yesterday.
Okay, so that’s an argument for humanitarian intervention that has been crafted to try to suggest that Arthur’s objections to humanitarian intervention are unsuccessful. I start off with something that he should accept, I think. Now, there’s another question I want to consider and that is civil war or rebellion. Consider a state in which a poor majority group is systematically oppressed and exploited by a wealthy minority that controls the government, the judiciary, the police, the army, and so on and so forth. Let’s put it. The law itself is unjust and offers no protection to this oppressed majority. I suppose the majority hitherto been deterred by fear of repression, use of force, and so on. They’ve done nothing so far. Now, they’re considering the use of force in rebellion as the last resort. Let’s suppose that in this state conditions fall short of barbarism there is law.
If these people were to rise up, they would be initiating a condition in which force decides, but they wouldn’t be imposing an external legal order because they are citizens of the state. I’m guessing that Arthur’s view prohibits rebellion in these conditions precisely because it does initiate a condition in which force decides. So far, there’s no use of force. The state is not violently repressing people, but there’s this threat of force in the background. Now, let’s imagine that the rebels do go ahead and began a civil war. They began fighting against the government.
Now, it seems to me that Arthur’s view does permit external intervention on behalf of the rebels because an external intervening state would not be initiating a condition in which force decides, because that’s already the case. What’s more? Wouldn’t be an instance of the imposition of one legal order on another because in the aftermath of the civil war, the legal order is going to be determined by the major participants in the civil war, namely the rebels. It seems to me that Arthur’s view does actually permit external intervention once a civil war is in progress. It permits it though quite appropriately only in support of the just side in the civil war, whichever that maybe.
Let’s suppose that it’s the rebels, as in the example that I gave you. May well be in this case that Arthur’s view is more permissive than international law is, because at least it used to be the case that international law would permit external intervention in the civil war on the side of the state at the request of the state but prohibited intervention on behalf of insurrectionary or rebel force in the state. It may well be that customary international law has changed now, I don’t really know. The customary international law might allow for external intervention if the states response to a rebellion involves war crimes, and so and so that justification for the external intervention … Excuse me, against the state would be humanitarian intervention.
Let’s return to what I think Arthur’s view implies and that is that external intervention on behalf of the just side, and in this case it’s the rebels can be permissible. It seems to me that if his view implies that external intervention in support of the rebels is permissible once the civil war is in progress, it would be arbitrary for his view to say the rebels can’t initiate this just rebellion. I think it may have that implication for the reason that I gave, namely that if the rebel start this thing, they are initiating a condition in which force decides. Once they’ve done that, then others can intervene on their behalf. That seems to me to be an unstable position.
Suppose Arthur’s view does permit the rebels to initiate a civil war in the conditions that I have described, if that’s true, then again, it seems arbitrary to me for the view to prohibit humanitarian intervention before a civil war erupts if, in fact, the people would rebel, if they could but they can’t because they’re powerless, but would welcome an intervention and would join it if it were initiated from the outside. I think in those conditions, really, Arthur’s view ought to endorse humanitarian intervention.
I also think that what Arthur calls remedial war can be justified and the justification against starts at the level of individual action. You imagine a case at the individual level. Here’s a case. Imagine that I’m on a life support system, I need this life support system to survive. Without it, I can survive for only a few days. Now, I suppose there’s another person who also needs life support system and can’t get it, comes and tries to take mine away. I engaged in self-defense. I tried to resist this person’s effort to take away my life support system, but I’m defeated. I failed.
I fall unconscious and the thief goes away with my life support system. I wake up some time later, I’ve got only a short time to survive unless I get back to the life support system. There’s no time for me to summon the police or the courts or whatever. Happily, I make a successful guess at where the thief is. I go to where he is and I fight him again to recover my life support system to save my life. Now, I think I’m perfectly justified in doing that. It’s not self-defense anymore because I’ve lost the defensive phase of the thing and he’s gone away with my property. In a way, this is no longer self-defense even though I am trying to get back something that really is mine.
That’s true in remedial war as well. What I want to suggest is if we just increase the numbers on both sides, a lot of people with their life support systems and a lot of thieves. We make the thieves citizens of another state from the state in which all of the victims live, I think that makes no difference, whatsoever. It’s irrelevant. The individual rights of recovery of things that are essential to people’s survival have priority in this case. If you think of a remedial war that has something like the features of this individual case, then I think you’ve got another just cause for war.
I think there can be just remedial wars just as I think there can be a just and justifiable humanitarian interventions. There are some other cases. Let’s skip them. What I want to do now is to challenge … Here, I’ll stop. I want to challenge Arthur’s idea that it’s really important or it’s just prohibited to introduce a condition in which a dispute is decided by force. Let’s take another instance of my life support system case. In this case, imagine that there’s a person on the life support system who’s disabled and can’t resist force or whatever.
Imagine this person is temporarily disconnected from her life support system and is in another room. Thief who wants the life support system comes in and just walks off or he’s going to just walk off with the life support system. The disabled person can do nothing to stop the theft. In fact, doesn’t even know anything about it. I appear and can prevent the theft of the life support system and therefore, prevent the death of the disabled person but only by killing the thief. I’m just stipulating it. It’s the only way I can do it. Again, I can’t call the police. There’s no time for any of that. Now, I believe again it’s permissible for me to engage in other defense of this person. When I do that, however, I am initiating the condition in which the matter is settled by force.
Because the thief isn’t using force, he’s just walking away with this machine. The person to whom it belongs is in another room. I think it would be straining the language to say this is a use of force or violence by the thief, it’s just theft. It’s not force or violence. If I use force and violence to stop the thief, I’m initiating this condition. After all, there could be settlement without resort to force by simply allowing the thief to walk away with the life support machine. Then, there wouldn’t have been any force or violence. In fact, it’s morally required for me to initiate the condition in which force decides.
I think also, contrary to what Arthur tends to say in the talks, I would in fact be settling the dispute on its merits because I’d be doing the right thing. I’d be introducing the use of force, but I wouldn’t be actually achieving a settlement on the merits because I would be bringing about the right conclusion. I wanted to revisit the pursuer case that I introduced yesterday into which Arthur responded. Maybe that will come up and I’ll do that later. I’ll stop here. Thank you for letting me go over.
Jay Wallace: We’ll give Arthur Ripstein the podium now, who will have 20 minutes to respond to as much as he’s able to in today’s comments and then we’ll open it up for general discussion. Save your questions and we’ll take it from there.
Arthur Ripstein: Well, so there was a lot of material in the three commentaries. I’m grateful to all of my commentators. As I said yesterday, I’ve learned a lot from each of them in the past. I’ve learned even more in the past few days. There’s so much material that I can’t realistically try and get through all of it in the 20 minutes allotted to me, but I will do so anyway. Chris identifies three challenges to my view. He starts by wondering what the moral force is of saying that something is a category error. In doing this, he makes a move that is as it were familiar in a lot of critics of Kantian views. The basic question is, well, suppose that there is something incoherent about doing this.
Well, so what? I’m going to achieve something that’s worthwhile. Why isn’t that good enough? Why is it that we care about the fact that there’s something contradictory or incoherent or violating some fundamental distinction? Forget about distinctions. Let’s just get the good result. Now, Kant has, as I explained yesterday and the day before, a philosophy that makes peace at central moral concept. Kant, at the end of his Doctrine of Right, says that peace is not merely a good but it is the final end of the Doctrine of Right within the limits of reason. It’s the final end.
I want to draw attention to the difference between two ways in which we might think about something as an end and two ways about in which we might think about peace in particular as an end. On the one hand, you can think of an end as something that is as it were radically external to the means that you use in pursuit of it. For example, when the United States decided they wanted to put human beings on the moon, getting to the moon, that’s just an end. Then, what you do in order to achieve it? That’s just a technical question. There’s a different way of thinking about an end. That’s the way in which I think we think about ends when we think about morality in general.
That is, of thinking of an end not merely as this thing that’s external but something that is instead fundamental to the way in which we think about the nature of an activity at all. We think of things as having what Aristotle would have called a final end, which is also what he calls a formal end. That is the end of peace actually doesn’t merely say kill everyone if that will get you to peace, that’s seeing the achievement of peace as something you can do through what Kant calls the vast graveyard of mankind. It’s rather that in seeing it as the final end, we see it also as limiting the means that are available to us, that the only way that you can pursue peace is by pursuing peace in a way that is consistent with honoring the value of peace.
This is the fundamental idea I think behind pretty much all of morality, but certainly around the morality of right, the morality of ideas of enforcement. Towards the end of his comments, Chris drew attention to and praise me for what he called the realism of my view. I’m happy to welcome the term realism. The thing on which he was focused was the way in which I distinguish between the questions of morality that apply in the context of political life, in the context not merely of politics, not merely of war, but also in the context of legal institutions and distinguished that from interpersonal morality.
I want to just draw your attention to the way in which those two differ in a fundamental way. Perhaps, the easiest way to do so is by drawing your attention to a fundamental feature of the concept of a right, something that those of you who are parents are very familiar with. Because one of the things that you need to teach your children is that they have rights and that other people have rights, and that there are certain things you must not do because they are inconsistent with the rights of others, and that there are certain things that others must not do to you or that you can demand of others because of the rights that you have.
In addition to that morality of right, the thing that’s hard about being a parent is teaching your children that also there are some occasions on which they should not stand on their rights. There’s more to morality than the morality of right. The morality of right is the starting point. It has to be understood in terms of an idea of interpersonal interaction, an idea on which no person is subordinate to the choice of another. When we think about relations between nations, we need to think in similar terms. The fact that a nation is entitled to defend itself, doesn’t end the moral question about it. It has to be the first moral question.
The question of whether one nation is entitled to come to the assistance of another is again a question of right. After which, there’s a further question about whether it is appropriate to exercise the right on this particular occasion. Before we get to the question of whether to exercise the right, we have to understand the structure of right. The structure of right is all about these distinctions. If we think about the nature of peace, the wrong of perfidy being the violation of this distinction by repudiating the difference between peace and war, that’s using means that are inconsistent with the very point of establishing rightful relations between human beings, rightful relations in which human beings can live together under laws rather than subject to unilateral assertions of force by others.
I want to say the same thing when we think about the principle of distinction, distinguishing between combatants and civilians. Of course, it may be more effective and it may be the case that you will end up saving more lives that fewer civilians will die if you target this group of civilians. One of the things that morality always teaches us is that the ends don’t always justify the means and that there are some things that you may not do even if you’re doing them will stop other people from doing terrible things. That’s the structure, that’s the general form of the structure that I’m working with throughout the lectures. There are means that can’t be used.
Those means are identified through this final end, through this idea of the possibility of people living together in peace. Living together, that is, under common rules articulated from a common standpoint. If we think about it in that way, then we have a way of understanding why these distinctions matter. Now, Chris also drew attention to the fact that I seemed to him unduly dismissive of various other grounds that might be given for the prohibition of perfidy, which he mentioned on Tuesday, or for the principle of distinction which I discussed yesterday, in which he mentioned today. I didn’t mean to say that those other grounds aren’t additional reasons.
The way that Chris put it, I’m not going to get his exact words right but the basic thought was that these moral ideas need all the help they can get. I couldn’t agree more. My claim is not that we should not encourage people to act out of a sense of honor. My claim is not that we should not provide people with incentives to do the right thing. My claim was that in order to understand why it is wrong to commit perfidy, why it is wrong to target civilians, we need this idea, this idea that what it is to be fighting justly is to give up uncertain kinds of means. Now, Chris, in relation to his first point also made an ancillary point.
He said that he was skeptical about my claim that a war of aggression should be treated as a defective form of a war of self or other defense. The question is, why are we thinking of it in these terms? Why don’t we just think of it as what it is? Hold it to the standard that is appropriate to it as it is conceived by those carrying it out. The answer there is that whenever someone goes to war in order to understand what they may and may not do, we have to understand them through moral concepts. The idea of moral concepts determines how we can frame any kind of analysis of anything that anyone ever does.
If we think of it in those terms, we have to suppose that even those who are engaged in bear power grabs, acts of aggression. Jeff mentioned the Nazis many times, I mentioned Genghis Khan. These are not people who, although they may have asserted that they were fighting defensively, they do not believe they were fighting defensively. Nonetheless, in order to understand the way in which their conduct is subject to evaluation, we have no choice but to suppose that they, like everyone else, are acting under the idea of right, which is to say that they are supposing that they are establishing a right by what they do.
If they think that they are engaged in an act establishing a right, then we have to ask, what act establishing a right could be going on here? The only one available is defending an existing right. We have to understand all of the parts in terms of that. Chris also worried that I was skeptical about international law and he mentioned the Rome Statute. I think in addressing that part of Chris’ argument, I will address it jointly with the corresponding part of Oona’s argument. I’m not at all skeptical of international law. One of the things that I should have been clear about is that my concern in these two lectures was with how things stand between two nations, between aggressor and defender, and was not as such concerned directly with the question of whether there could be some other body, a body of international law that was superior to them.
I think that nations are sovereign in the only sense that is of any moral interest and so far as they are sovereign against each other, which is not to say that they are sovereign against the international legal order. Indeed, I think they can only fully enjoy their sovereignty within the context of an international legal order for reasons that are formally parallel to the reasons in which individual human beings can only enjoy their rights if they, as people like to say in the 17th and 18th centuries, exit the state nature and enter into a legal condition. If that’s what they do, if that’s what they have to do, then of course, international law has a kind of superiority over them.
Notice, international law requires two kinds of things. It requires on the one hand institutions and it requires on the other hand doctrines. In order to understand how international law can have these things, there’s a story about how it comes about, namely through the voluntary agreement of nations. Oona wondered whether I was opposed to that idea I had in my discussion of Shawcross’ view on Tuesday suggested that he was critical of a certain understanding of what the voluntary law of nations could be. That was, of course, because the voluntary law of nations that he was criticizing was the voluntary law of nations that on the one hand said, “We’ve agreed to let both sides in a war kill the others combatants,” and also said, “We’ve agreed that no one is allowed to start an aggressive war.”
That’s not a possible set of agreement. My claim in drawing on Shawcross’ criticism was to draw attention to. There are limits to what can be the content of a voluntary law of nations. My thought is that the fundamental features of it have to be the recognition that nations are juridical equals, that each of them is as against each other nation entitle to political independence and territorial integrity. That entitlement limits the way in which agreements between nations can take on content. It also means that because of that, when there is sufficient agreement among nations, you can have what Oona described as customary international law which is I know importantly different from the voluntary law of nations as Wolf and Vattel described it.
Precisely because it binds everyone. Because what happens when you have enough nations, though there’s no clear empirical point as to what counts as enough. If enough nations of the world unite themselves in setting up institutions, then those institutions have a legal personality that is independent of the legal personality of each of the nations that authorize them. That independent legal personality then has authority over things that particular nations might not have accept it. I don’t actually think that the claim of the ICC to prosecute or to investigate, which is all that’s happening right now.
Torture committed in Afghanistan depends on the fact that Afghanistan is a signatory. If Afghanistan had not signed, it would still it seem have that kind of jurisdiction. I am worried about the thought that this is because everyone has jurisdiction. I’m very suspicious of the idea, and this is of course the scholastic idea from the 15th and 16th century of universal jurisdiction that whenever there is wrong in the world, it is so important that it’d be righted, that anyone who’s strong enough to do so is entitled to do so. I believe that to be the path to barbarism.
Now, I want to say one more thing about customary international law and the power of states to bind themselves. The power of states to bind themselves is a lot like the power of individual human beings to bind themselves. It’s fundamentally limited. The way that it’s limited is parallel to the way in which the ability of each of us as individual human beings has a limited ability to bind ourselves. To use a classic example, you can’t sell yourself into slavery. That exceeds your moral powers to do so. In the same way, I think a nation couldn’t agree to be enslaved by another nation.
The initial article by Alfred Verdross that introduced the idea of jus cogens, that is peremptory, non-dirigible norms of international law gave such examples as you couldn’t have a treaty that authorize slavery. You couldn’t have a treaty that authorize mass murder. You couldn’t have a treaty that authorize the suspension of consular protection for a country’s nationals when travelling abroad. You can’t have that because you couldn’t have a treaty in which a nation gave up its entitlement to be a legal order.
Okay, non-international armed conflicts. I have lots to say about non-international armed conflicts. I think the basic thing to say about them though is that they don’t make these rules obsolete because these rules apply in the clearest case in a war between aggressor and defender. We can identify their formal structure by focusing on the case of a war between aggressor and defender. For all that, they are rules that are organized around the thought of the importance of peace. If that’s right, then when there’s a non-international armed conflict or a NIAC as Oona called it, what you have is a situation in which there’s a breach of the peace and we need to conduct ourselves in a way that makes it possible to return to peace.
How exactly we do that is complicated. One of the clearest cases where this comes up, the second additional protocol to the Geneva Conventions says that members of a non-state military organization are only participating in hostilities at the time at which they are actively participating and carrying weapons openly. This seems to give them … This is why some nations have hesitated to ratify this, give them a kind of advantage because uniformed soldiers are always treated as combatants. These people get to switch back and forth. One question is, how do we make sense of this?
Part of the answer, of course, is that a nation’s military as I suggested yesterday is the way in which it threatens another nation. It is always directly involved at least in the threat. The fact that someone can, at their own initiative, become or not become part of the threat seems a little bit worrisome. At the same time, the overreaction to that can only be analyzed in the kinds of categories that I have suggested. All right, I have probably four minutes left. Jeff, you could probably run a mile in this time. I’m going to just quickly respond to a few of your comments.
The basic distinction that I want to draw between barbarism and despotism, barbarism is a condition in which you have … As Kant puts it, force with neither freedom nor law. What you have in a condition of despotism by contrast is force and law but limited freedom. I want to say that distinction matters because I want to say the possibility of people enjoying their rights together actually depends on their being institutions that make apply and enforce law in a way that enable each of us to be secure in our private claims as against each other. Now, Jeff gave a series of examples.
One of the difficulties with the examples is they kept moving back and forth between examples of despotism and examples of barbarism in the sense in which I wanted to distinguish them. As a result of which, there were, in particular, the example of the civil war or the rebellion. Jeff said, “Law offers no protection to the oppressed majority.” If that’s what’s going on, that’s just barbarism because there is no protection. They’re not capable of enjoying their rights. That one’s easy. On the other hand, you change it to, well, there’s a decedent here. I don’t think that anyone can take it upon themselves to interfere with another nation’s legal order even when there is a serious injustice taking place in that legal order.
Now, there’s lots more to be said about the particular here. I want to close because I have almost no time here by focusing on something that Jeff said in his example that was supposed to motivate the example of remedial war. Because what he said is, look, in this case, the person who is taking the life support system away isn’t using force. They’re doing something peacefully and they’re not using force. Therefore, to stop them would be introducing a condition in which force decides. This makes me realize that I was not sufficiently clear on the way in which I think about the morality governing the use of force.
I think that the idea of enforcing a property right is part of the morality of force, whether force is actively used or not. I think that’s why the police are allowed to stop a thief in progress. I think that’s why the government is entitled to use force to take things back from people who wrongfully retain them. Because of that, I think that in these kinds of examples, what you get is an illicit use of force. I think that’s also why we can say that there is something wrong. John Simmons has this example of a bloodless invasion. He says, “Just imagine.” It’s an example that seems oddly antiquated although it’s only four years old. The U.S. annex is a mile wide strip of Mexico.
That’s what seems mildly antiquated about it. They do so peacefully. What they do is they just bribe all of the officials to leave their offices and they take over. The question is, is this force replacing law? My answer is yes, of course, it’s force replacing law. Because what you’re doing is you’re taking legal officials and you are demanding that they give up on their role as legal officials and rather than them doing what they’re supposed to do, namely decide things in accordance with law as determining a public standpoint to govern interactions between human beings. You’re replacing it merely with something outside of that. That is a use of force which can be resisted with right. Thank you.
Jay Wallace: The floor is open for questions. Put your hands up and I’ll make a queue. We’ll start with Hannah Ginsborg.
Hannah Ginsborg: Okay, right. Thanks everyone. This first issue which Chris raised about categorical arguments. I want to address Arthur’s response to it. Chris basically said, why should we be concerned about making category mistakes? Why should we be concerned about doing things which are inconsistent with distinctions that we’ve made? Arthur responded both by emphasizing the importance of peace on a Kantian view and by pointing out that on a Kantian view, peace isn’t just an external but a formal end which means that it’s the kind of end which limits the means. Arthur, you repeated something that you’ve said a couple of times in the lectures which is that somebody who engages, say, in perfidy, like full surrender is repudiating peace and because that person is using means that are inconsistent with peace.
It seems to me that that still isn’t enough. That’s partly because it seems that I can engage in perfidy and still not actually repudiate peace. I can be a fan of peace. I can want that to be means available for making peace possible. I can still think that a particular act of perfidy on my part will help bring peace about so that my use of perfidy I might think isn’t in this particular case inconsistent with peace. I’d like to suggest that the argument still need some filling out. I’d like to suggest that maybe it could be filled out by drawing on what I think is the animating idea of Kant’s argument for the formula of universal law which I think has to do with the wrongness of unfairness or of making an exception of oneself.
I think that your argument assumes that. We all do want peace and we want the means for coming to peace to be available to us. The problem with me, if I engage in perfidy, is that I’m … It’s not that I don’t want the means for peace to be available, I want them still to be available. I’m reasoning perhaps correctly that they won’t stop being available through my act of perfidy. What’s wrong with it is that I’m making an exception of myself. I’m aware that if everybody did what I’m doing now, then those means of achieving peace wouldn’t be available. That’s what I’m suggesting, is the source of the wrongness. I’m thinking of it as a kind of filling out or amplifying of your argument in a way that’s intended to address Chris’ objection.
Arthur Ripstein: Thank you, Hannah. Chris has convinced me that I should not refuse assistance when it’s offered. Nonetheless, I just like to clarify. I think that this is a way of supporting my argument, but it’s probably not a way of filling out my argument. Because one way of thinking about this is contrast of distinction between internal and external freedom. The idea of making an exception of yourself is an idea about internal freedom. It’s an idea about the relation between you and the rule governing your conduct. You’re trying to exempt yourself from a rule while wanting the rule to hold in general.
It all turns on what Kant calls a maxim, that is a subjective principle of action of general form use these means in order to achieve this end. When we think about external freedom, we seem to be concerned not with the question of subjective principles of action about the relation between this end and the means to it. We’re actually concerned instead with the availability of certain kinds of means, that these means need to be consistent, not with this or that particular end but with, as Kant puts it, ends as such. The idea of being consistent with ends as such is what’s supposed to give us the principle of right in the individual case.
If you go to the international case where you’re supposing already that we’re dealing with legal orders or proto-legal orders, then what you need is a principle that is consistent not with a particular end and not with peace as a subset of end but rather one that is consistent with, we might say, public law as such with the possibility of people living together under a system that constitutes a common standpoint for making, applying, and enforcing law. That’s the thing that requires that we bring things that we subordinate all uses of force to law rather than subordinating law to uses of force.
That’s the thing that I want to suggest, is repudiated in the case of the commission of perfidy. Because what you’re doing is you are saying … I mean, you’re not seeing it, but you are acting as if this distinction doesn’t matter. If this is the organizing distinction for the possibility … Another way of putting it, Kant actually thinks that the principle of peace and the principle of publicity are the same principle. It’s not that you’re exempting yourself from it, it’s that if you reject the principle of publicity, you are rejecting peace. Even if you do it because you want peace, because it’s not a matter of what you want, it’s rather that the only way we can have peaceful interaction is if we only authorize force under public law.
If you have a plurality of legal systems, no legal system can do that to another, and so we have to have this limit built in. Of course, whenever you do it, you will also making an exception for yourself. Notice that the nation that commits perfidy or the individual who commits perfidy who has no commitment to peace commits exactly the same wrong. It’s not that they’re saying, “Oh, I want peace in general. I want but I’m going to make an exception for myself.” It’s that whether they want peace or not, the problem is they are repudiating the right way for human beings to interact, and so leaving only force as an option.
Hannah Ginsborg: Okay, thank you.
Jay Wallace: Niko, you’re next.
Niko Kolodny : Arthur, I was wondering why a state at war can hold prisoners of war. Why isn’t it obligated just to release them at parole? Because I take it that a nation at war can’t round up civilians and hold them in prison until the conflict is over. If these people have laid down their arms and they have surrendered as soldiers, why is it that the state is allowed to hold them as prisoners of war?
Arthur Ripstein: That’s very interesting question, which had not occurred to me and quite so stark a form before. I guess the basic thought is that they can be prevented from rejoining. Because when prisoners of war is captured or surrenders, which is an indirect form of capture, that prisoner has a peculiar kind of moral and legal status because that person is now not fighting and so is not part of the war, and so has a kind of protected status. That person has not ordinarily become no longer willing to fight. I take it that the reason of prisoner of war can be contained is merely to prevent the prisoner of war from rejoining the enemy forces because the war is continuing and because the prisoner of war might be expected to have some ongoing commitment to the side for which that prisoner was fighting.
It’s a matter of preventing them from rejoining. Now, there’s a question about what’s involved in doing that. I have a colleague in Toronto who grew up in Germany. His parents insisted he get educated in the U.S. because his father had been a German prisoner of war in the Midwest during World War II and had the time of his life. He thought, this is where I want my kids to spend their young adulthood. He did his military service in the German army. Then, he went and moved to the U.S. because being contained as a German prisoner of war there was a pretty … Well, cushy is probably overstating it. It has prisoner of war settings go that’s not bad at all. The point is, the restrictions on the way prisoners of war can be treated I think are all … the requirement that they’re not currently part of the war. The only thing you can do to restrict them is stop them from rejoining.
Jay Wallace: The floor is open for discussion.
Audience member 1: What’s going on that west point? In fact, it was a practice during World War II in the United States to allow prisoners of war. If they’re deep enough in the country, they’re walking back to the enemy across water and so on was not likely, that they could be farmed out to private farmers, for example, as agricultural laborers. There is a point to this question of must they be kept behind stockades if this option is reasonable and available. I wanted to actually ask a question that goes to the difference between despotism and a state of anarchy.
It seems to me another reason for allowing the anarchic battle that is not available to despotic situation is the problem of subjectivity on the part of the oppressed. Now, you might say that from the standpoint of a spectrum, the least justifiable case of rebellion was that of the American Revolution, if all that was involved with taxes on pockets of tea. As compared with John Dugard’s argument in South Africa, that the persistent and truly Draconian set of conditions under which the Black majority was kept justified rebellion. He made that argument as an argument of public international law. Wouldn’t that be an issue? That is to say, the level of subjectivity in claiming the right of rebellion against despotism. That has nothing to do with the legal outcome but just my sense of when is one allowed and when is one not allowed.
Arthur Ripstein: I think that’s a very helpful way of thinking about it. Because one of the problems that a legal order solves is a problem about judgment, the way that I put it both yesterday and today is you have to have a common standpoint from which rules are made, applied, and enforced. One of the reasons that you have to have that is that the available concepts are partially in determinate and they need to be made more determinate. Of course, they can’t be made fully determinate in legal doctrine in advance. Part of what you have to do in order to establish legal order is establish a system of offices that basically say, this is the person who gets to decide about this question on these kinds of grounds.
This is a question for the jury. This is a question of law for the judge. It’s a question of law for the judge as a mean. The judge just looks it up. That’s why we call them judges, needs to exercise judgment in doing it. You have a system in which all of these things are done. Now, this is important for understanding legality. I think, as your question indicates, it also sheds an interesting light on questions of revolution. Because, of course, the kinds of things that are despotic on exiting legal regimes on a Kantian view, no legal regime is entirely adequate to the idea of a system of equal freedom under law or questions that about which reasonable people might disagree.
As a result of which, part of the reason we have to exit the state of nature and set up a legal system is to have someone whose job it is to decide on behalf of all of us. That means that we can’t unilaterally decide on our own, and that’s just your point about subjectivity. Now, when you get to the condition of barbarism where there are no institutions protecting the rights of some particular class of persons, I don’t normally like using Nazi Germany examples. Jeff’s brought enough of them out that I think I’ll make an exception. If you think about Nazi Germany, there was a situation in which you had force with neither freedom or law for a proper subset of the population.
I think if you think about slavery in various societies around the world historically, you have something similar. In that situation, I think that those who are subject to it are entitled to use force against it. This gives me a chance to usurp my time quota by responding to one of the things that Jeff said. In that situation, of course, it’s also the case that third parties can intervene on behalf of those people precisely because they are the ones who are acting in a way that is consistent with the creation of a legal order. Now, one more thing that I should say about intervention while I’m abusing my role as answering questions is that when it comes to national defense or defense of another, in those kinds of cases, I think as a matter of right, you’re entitled to use force even when you have a limited prospect of success and indeed, probably even if you have no prospect of success.
I think if you think about Warsaw Ghetto uprising, they had no chance of winning against the Nazis. They were allowed to use defensive force anyway, because right must not yield to wrong. On the other hand, when it comes to intervening to prevent something like barbarism, I think they’re a third party intervening. First of all, I think needs to have omni-lateral authorization through the kinds of international institutions to which Oona was drawing our attention, and also needs to have a realistic prospect of success. I think one of the things that’s so heart wrenching when you look at calls for humanitarian intervention around the world is that one question is whether one nation can act unilaterally to do this.
There was a debate about intervention in Syria and many people were saying that, “Oh, we have to do this because we can’t just sit idly by.” Sorry. Oona and her co-author, Scott Shapiro, wrote a very powerful opt and explaining why this was the wrong way to think about it. Even if you had an international authorization for doing it, there’s a question. What exactly are we expecting to accomplish here? That is a pressing question and in those cases, even with international authorization.
Audience member 2: Thanks very much. Sorry. These lectures and talks have been really great. Thanks everyone for participating. This is really just an invitation to say a bit more about something that was touched on yesterday that I was interested in. It was about the principle of proportionality. You suggested as I understood it that while Jeff McMahan thinks of it in terms of … Well, the principle of proportionality for him, he said something like the good effects of a use of force must outweigh the bad effects and that you don’t think of it quite in those terms. I didn’t understand what those terms were, so yeah. How should we think about proportionality understanding that principle in war? What kind of justification should be given aware, whether it also has something to do with the importance of returning to peace in that kind of way? Thanks.
Arthur Ripstein: Okay, thank you. I think I said this in passing on Tuesday. It was a single sentence in the written text that I circulated to my commentators. I think that the reason that I don’t treat proportionality as a free standing principle is I actually think that it is in a fundamental sense subordinated to the principle of discrimination. To say that it subordinated to it is to say that rather than seeing it as a perfectly general principle about how to weigh good consequences against bad consequences. It’s actually a principle about how to weigh the use of force against combatants against the effects on civilians.
If we think that civilians are not part of the war, the principle of proportionality is a principle limiting the extent to which that which is part of the war can spill over onto that which is not part of the war. Again, sticking with my architectonic structure where we start with the example of the defender. Of course, the defender is fighting for a just cause. The question of proportionality is sufficiently downstream from the justice of the cause, that it does not enter directly into the analysis of whether a particular act of war is proportionate or disproportionate. Because that’s an inquiry that says with respect to this proposed, say, attack on a particular military installation.
The military installation is something that is a combatant or a combatant-like thing. Then, we ask, will this increase the scope of the war? That is, will this bring part of the war to people who are not properly part of it? That’s why on my interpretation with the Geneva Convention, the Geneva Convention focuses on the direct military significance of the target. That’s because something with direct military significance could be lawful target, whether any of the case of the defender. It is a lawful target in the case of the aggressor. It’s not, but it could be.
If the principle of distinction applies to both sides, then the principle of proportionality is a question about whether something that satisfies the principle of distinction and that is militarily necessary, that is actually going to advance the military objective whether it spreads the war too much further, whether it gets too much war in place. That’s because in the case of defensive war, targeting military installation is permissible. Even though that’s already a limit on the means of defense that can be used, this is a further limit based on the side effect of it. Now, this is a completely familiar way of thinking about side effects.
There’s a large literature coming out of some passing remarks of Aquinas that then get developed in catholic theology and eventually get named the doctrine of double effect that focuses all on the end that’s being pursued, and so on. Notice that when we think about the side effects of things, when someone’s doing something, there’s a question that we can ask about the way that they’re doing it. That doesn’t actually attend to why they’re doing it. For example, we can say if someone that they’re not driving carefully enough. We can make that inquiry without actually knowing why they’re driving, where they’re driving, or anything of the sort.
We can say, “No, that’s too dangerous.” Now, when we get to proportionality in war, we’re doing something slightly different but not entirely different. Because we’re bracketing the purposes and we’re saying, “In the pursuit of this military objective, how much of side effect on what is non-military is permissible?” There’s something else that I want to say about proportionality which I mentioned to my fellow panelist at dinner last night. Proportionality is what in a Kantian idiom we would call a regulative principle. To say that it’s a regulative principle is both to say that it is supposed to regulate something other than itself. It doesn’t have a positive use.
It doesn’t have a constitutive use. It doesn’t generate new permissions. It’s also a principle that is by its nature imprecise in its application. If you look at the post-World War II constitutions like in Germany, and Canada, and Israel, and South Africa, and India, there you have someone whose job it is to do the proportionality weighing. When you get members of the military, ask what counts as disproportionate force. There’s a philosophy professor at the University of Haifa who got these sociologists who know how to design studies. They did big study and they asked military leaders and military lawyers in multiple countries, would this count as disproportionate? There was no pattern whatsoever to their answer. That doesn’t mean proportionality doesn’t matter. What it means is that we can’t think of it in this algorithmic kind of way.
Audience member 2: I guess I had myself on the list, but I think I want to just follow up on this issue and just invite you to say more about two things. One is the basic idea you appealed to and articulated in the principle of discrimination that you just invoked again between those who belong to the war and those who don’t belong to the war. I think both Oona and Jeff and probably Chris raised different versions of a question about how to understand this by appealing to specific examples. Was worried about whether the lawyers who are working in the Pentagon might belong to the war.
Jeff is worried about I think the physicist. I share a worry that it’s not a very well defined concept. Jeff suggested it might be vague. I know you said something in response to this yesterday, but I just didn’t get it. I’d like to hear you say something a bit more about that. Then, just relating this to the issue that just came up. If I understood what you just said, you’re thinking proportionality as a principle that falls out of the principle of discrimination. It says that the war shouldn’t extend too far into the class of people who don’t properly belong to the war in the first place. I just don’t see any principle there.
It seems like the most you’d be entitled to say is any extension from those who belong to the war, to those who don’t should be ruled out if you’re just appealing to the principle of distinction. If that’s not what you’re saying, you’re allowing some extensions of the combat into the class of people who don’t properly belong to the war. I don’t quite see how you could even … I mean, I could see why it would be …
I guess it’s an advantage of your theory that it would predict that if you were to do a survey of people, you get radically different answers because there is no principle there at all.
Arthur Ripstein: Thank you. I’ll take your questions in reverse order. The claim is not that the principle of proportionality falls out of the principle of distinction. The claim was rather that the principle of proportionality presupposes the importance independently of the principle of distinction. That means that there is a problem whenever war has an effect on anyone other than those who are directly part of it. Now, as it turns out, war always has those kinds of effects. The thought is that we need something like a principle for analyzing the significance of those effects because it can’t be … Again, let’s take the case of the defensive war.
It can’t be that the defender is not entitled to engage in the use of defensive force because doing so might have a side effect or will have a side effect. There must be, on the one hand, the authorization to use defensive force which is not subject to prohibition merely through the fact of side effect. At the same time, the presumption in favor of peace means that side effects need to be minimized. Now, what we’ve got here then are two principles. They have a common source because they’re both based on the fundamental idea of a world governed by peace rather than force.
You’re using defensive force to stop aggression, so to preserve peace but you seem to be introducing more force than you should be. Or rather, it seems that we have these two things. They stand in attention. Because they stand in an intention, they might be related to each other in different ways. Notice this is a completely familiar feature of practical thought more generally if think about how the different virtues fit together. Indeed, it’s a particular familiar feature of theoretical reason. You want a theory that has explanatory power. You want a theory which means that it’s general. You want a theory that’s going to get all of the details.
I was on a committee to hire a vice president and search consultants always have these job ads. They say, “Someone who can look at the big picture and drill down into the details.” I said, “This just sounds ridiculous.” They said, “Well, don’t you want someone who can do that?” I said, “Everyone wants it.” Everyone who can do that, of course. The point is, you have these two principles and they seem to pull in opposite directions in particular cases. In the case of war, there are these two organizing ideas, neither of which we can give up on and at the same time neither of which can be fully satisfied while satisfying the other in the imperfect world in which we find ourselves.
Now, what about the question of who is and who is not part of the war? Oona gave the example of the lawyer. Jeff gave the example of the physicist. Many people have given the example of the farmer who grows the crops, and so on. There are all of these kinds of examples. The question is, how is it that we determine who is and is not part of the war? I have two things to say about that. The first and most important thing is that the point of my entire exercise is to identify the normative structure that is at issue. I believe that we begin to understand normative phenomena by looking at broad conceptual questions rather than by beginning with particulars.
I think that the thing that makes these cases hard is precisely the fact that we can see the poll of placing them in one category and we can see the poll of placing them in another category. Then, the question is, well, what’s the reasonable way to think about this? This is where some of what Oona was saying earlier about customary international law and the development of doctrine is so fundamental. Because, of course, we need some way of making this explicit. How do we do that? The answer is that the presumption as we do it is that everyone is presumed not to be part of the war unless they are a part of the war rather than … In the written test, which I didn’t get to yesterday because I didn’t have enough time.
I raised the example of ancient Sparta where supposedly everyone was either fighting or preparing to fight all of the time. That example would show that you could, if it were true of ancient Sparta, have a society in which everyone was always part of the war. Modern societies are not like that. Probably ancient societies weren’t like that. Because of the priority of peace, we have to presume people to not be part of the war. We use clear designations. The initial one says wearing uniforms and then Additional Protocol II says or carrying arms openly.
The point is, you get a structure built up so as to include those who are plainly part of the war and in cases of ambiguity, leave them out. Now, what do we do with the nuclear physicist who was designing the weapon? I’m not entirely sure what to think about that. I think that if there is a situation in which it is morally permissible to target that person, doing so is not without a fundamental moral cost.
Jay Wallace: Okay, excellent. This brings to a close, the conclusion, the formal part of today’s proceedings and indeed, this year’s Tanner lectures. Before we continue informal discussion over refreshments, I’d like to invite you to join me in thanking Arthur Ripstein, our Tanner lecturer this year as well as our distinguished panel of commentators, Jeff McMahan, Oona Hathaway, and Chris Kutz for an exceptionally stimulating and fun series of events.