Postscript: A Defense of Just War Theory

In the years since this book was first published, just war theory has become a minor academic industry; it has proved particularly engaging for contemporary philosophers, though political theorists and legal scholars are also working on the difficult issues of morality and war. The literature seems vast, given what writing on this subject was like in the middle years of the last century. Vietnam is the major reason for the surge of interest, but interest has been sustained by America’s subsequent wars, which have been greater in number and longer in duration than anyone expected.

Many recent books and articles are critical of what is called standard (or even orthodox) just war theory, which this book is often taken to represent. I have read some of this literature, but mostly I have listened to the critical arguments at lectures and academic conferences in the United States and abroad—and sometimes I have responded to them. I want to respond here, not to particular philosophers but to the cohort of recent academic writers about war who believe that the distinctiveness of just war theory is unnecessary; war’s dilemmas are in no way exceptional; they do not differ from the moral dilemmas of everyday life, and they can be dealt with by the familiar methods of analytic philosophy. What is at issue, in part, is the very subject of the theory. What is just war theory about?

There are at least two answers to this question, one of which I want to defend as strongly as I can. The first answer is that just war theory is about war, and the second answer is that just war theory is about moral philosophy. The difference is most simply a matter of focus. Toward what issues, what hard questions, what specific circumstances, is the theorist’s attention directed? But we might also think of it in a backward looking way. What was the theorist reading before she began writing? And since I bear some small responsibility for the academic industry, I will begin autobiographically, with my own reading matter.

Before I wrote Just and Unjust Wars, I read some key texts in Catholic moral theology and early international law—Augustine, Aquinas, and Vitoria; Grotius and Puffendorf, and a few others. I read a handful of ­nineteenth- and twentieth-century legal textbooks and a couple of contemporary theorists, like Paul Ramsey, the most important Protestant writer on war in the 1950s and 1960s. But the greater part by far of my reading was not in theory at all but in military history, both academic and popular, and then in the memoir literature produced by soldiers of different ranks (preferably the lower ranks: junior officers and foot soldiers, who make the toughest moral decisions on the battlefield); and then in wartime journalism and commentary (especially about Vietnam, the immediate occasion of my own writing). Finally I read many of the novels and poems that deal with the experience of fighting and the company of soldiers. The nontheoretical genres, and the books and articles they include, seemed to me the critically necessary material for my project—partly because I had never been a soldier myself and I needed to learn as much as I could about the experience of war. But I also focused on histories, memoirs, essays, novels, and poems because I wanted the moral arguments of my book to ring true to their authors—and to the men and women about whom they were writing.

Looking over the recent flood of books and articles about justice and injustice in war, I sense that many authors are not reading the way I did. They are preoccupied with the academic literature about moral philosophy and just war theory. They are reading the journals, not the journalists; they are reading each other. This is a common academic practice, but it has always seemed to me problematic—especially when the subject is politics and war.

After reading each other, these theorists argue with each other (and sometimes with the rest of us), disagreeing about significant theoretical points and about fine points, too. Some of the disagreements are about ethical issues like self-defense and responsibility—issues that arise not only in wartime but also in civil society in time of peace and in many ordinary domestic contexts. Many of these theorists take the view that issues of this sort can be delineated most clearly and addressed most conclusively in contexts far removed from war and even in hypothetical and elaborately constructed cases that have no historical or practical reference at all. So they have no need to read, say, military history; the debate is focused elsewhere, and all that is necessary is to read the works of the other participants in the debate.

I don’t want to deny the possible usefulness of this sort of philosophical labor. Issues that arise in war, but also in other real and imagined contexts, can certainly be addressed, illuminated, and perhaps even resolved, in the other contexts. But I worry that the illuminations and resolutions won’t ring true to the people I have always tried to address, for whom war is a primary subject and a personal experience. But how can that be? Surely if we have figured out what personal responsibility (for example) means—in the way that many contemporary philosophers figure things out, by abstracting from particular cases, by inventing examples that test every possible definition, by calling each other to account with increasingly refined examples—then we also know what personal responsibility means in war. There is no point in reading historical analyses of military decisions, or subjective accounts of decision making in the field, or fictional narratives about combat, since none of these are designed for philosophical purposes. What counts is the cleverness of the design and the questions that it highlights and helps us answer.

For these theorists wars and battles are like street crimes and marital disputes in civil society; they involve the same kind of moral dilemmas. They are “cases” to which theorists need to apply the rules of everyday morality. In order to figure out the rules, they may start from the cases, playing with them, changing their details, even inventing possible and impossible variations that test our understanding of the rules as they are, or as they might be, or should be. But these theorists have no commitment to the actual cases until they know the applicable rules, and hypothetical cases will do just as well in figuring things out—perhaps better, since they impose no reality constraints on their designers. Still, all the cases, real and hypothetical, are in some sense familiar, that is, they can be imagined to arise, however improbable they are, in everyday life.

I want to argue, against this view, that wars and battles are not “cases” to which the law and morality of everyday life can be applied; by definition, they don’t take place in civil society. War is a long-standing human practice (however uncomfortable we are with it), which represents a radical break with our ordinary social activities. The practice of war has been argued about and reflected on over many centuries, and it has its own law and even its own morality—which have been produced through the adaptation of ordinary law and morality to the peculiar circumstances of war. If we want to understand why that adaptation was necessary and what it has produced, we need to turn first to war itself. We need to understand what wars and battles are, how they have been experienced over the years, and how their moral and legal rules have been worked out. That’s the point of reading military history and soldiers’ memoirs. Only then can we turn to particular wars, particular battles, and particular incidents in battles; only then do we have cases to which we can apply the rules and come to grips with the peculiar tensions to which these applications are subject. And then, finally, we will be in a position to argue for or against revisions of the rules. We can learn a lot about the rules and the tensions and the possibly necessary revisions by reading what earlier international lawyers and just war theorists have written, but some of their key arguments will seem strange or incomprehensible unless we begin with the literature of war itself.

It is especially strange that just war theory, in its standard form, requires us to judge the conduct of a war independently of our judgment of its character, so that what soldiers are permitted to do or barred from doing in battle doesn’t depend on whether their war is just or not. I am going to focus here on this strange requirement, which lies at the center of contemporary philosophical debates. What the required independence of the two judgments means is that we grant soldiers on both sides, whether their cause is just or unjust, an equal right to fire their guns, so long as they aim only at each other and not at innocent civilians. We treat soldiers on the battlefield as moral equals. Many (it may be most) of the philosophers working on these issues today are highly critical of this equality, and of the separation of ad bellum justice from in bello justice. They think it is obviously wrong to judge soldiers by how well they fight, without reference to the rightness or wrongness of the war they are fighting. They want soldiers fighting a just war to be able to do things, like firing their guns, that soldiers fighting an unjust war are barred from doing. And their argument makes a lot of sense if, as I wrote about one of them, we imagine war to be a peacetime activity. Indeed, standard just war theory is untenable if we take wars and battles to be like street crimes and marital disputes.

We need an example here, not hypothetical, so let’s compare aggressive war to a bank robbery in, say, Philadelphia, the city of brotherly love. Let Philadelphia represent a peaceful civil society. We would certainly not judge the conduct of the robbery independently of the wrongfulness of robbing banks, as if the wrong didn’t make a difference. It does make a difference. If there is a shoot-out between the bank robber and a bank guard, it can’t be the case that the two of them have an equal right to shoot so long as neither of them aims at innocent bystanders. Though they are both subject to moral constraints, the guard has rights that the robber obviously doesn’t have. So, by analogy, shouldn’t we say that the just warrior, defending his country, has rights that the unjust warrior, invading the country, doesn’t have?

This is the central challenge (though there are others, related to this one) posed by many contemporary moral philosophers to the standard or orthodox theory of just war—the theory that I have tried to develop and defend. According to the standard theory, aggressive war is indeed a crime, but it isn’t the crime of the ordinary soldiers who fight it. The criminals are the men and women, mostly men, the political and military leaders, who consult together and decide, let’s say, to attack a neighboring country. The Nuremberg tribunal got it right, then, when it indicted the heads of the Nazi party, state, and army, and allowed ordinary German soldiers to go home. But how can these soldiers be guiltless, who marched into Poland, Russia, Belgium, France, and so many other countries? To answer that question (which I have now put in the strongest possible way), we must focus on what actually happens in the world of war. For this is a world where life is radically unlike life in Philadelphia or in any peaceful civil society, even one beset by armed and possibly violent bank robbers.

What is special, what is peculiar, about war? I have a short list of features that moral and political theorists, philosophers too, should attend to—a list that could be expanded. It is designed only to serve the immediate purposes of my argument here.

First, the circumstances of war are intensely coercive, and they are coercive in ways that are probably not equaled anywhere else. Slavery and imprisonment are highly coercive institutions, and conscription for military service is sometimes compared to them (by its opponents). The comparison can be useful in political debates, though it is greatly exaggerated. But it is hard to exaggerate the coerciveness of the battlefield, where life is always at risk and soldiers are compelled to act in ways that have no precedent in their own, or in any, civilian experience. Command decisions are also subject to the coerciveness of war—hence the claim of “military necessity.” Moral theorists who try to set limits to that claim, as I tried to do in Just and Unjust Wars, must acknowledge its possible force. In the heat of battle, officers are driven to do cruel things, which they would never imagine doing in domestic society, by the belief that they have no alternative or, rather, that the only alternative is defeat—which they take to mean subjection and possibly death, not so much for themselves as for their country and their fellow citizens. If we want, sometimes, to challenge that belief, we must understand the circumstances that produce it.

Some of the legal and moral institutions of war acknowledge and even legitimize its coerciveness. Consider the prisoner of war convention (I will repeat here an argument I make in chapter 3), which makes the practice of individual or group surrender on the battlefield possible. Surrender is an implicit agreement: the surrendering soldier, threatened with death, agrees to give up fighting, and his captors agree, whether they think his war just or unjust, to provide him with what lawyers call “benevolent quarantine for the duration of the war.” But this is an agreement that the captive has made under extreme duress, and according to the ordinary law and morality of domestic life, it cannot have any binding force. And yet we recognize and accept its binding force, so that soldiers who try to escape from a prisoner of war camp are treated as if they have broken their word and thereby acted contrary to the law and morality of war; they are subject to punishment, even to capital punishment. I suppose one could argue that in the “original position,” as it is described by John Rawls, all potential soldiers would agree to the prisoner of war convention and that this hypothetical consent gives it binding force. But then we would have to explain why many prisoners try to escape and rejoin the fighting and why we celebrate their efforts—why they are commonly described as heroes in books and films when they might plausibly be described as men who have broken their (hypothetical or tacit) promise and put a useful and humane convention at risk.

The coerciveness of war explains the prisoner of war convention, for there is no other way to allow soldiers to stop fighting without being killed. But there is a second feature of war that explains why some soldiers violate the convention and why we call them heroes.

Second, war is an intensely collective and collectivizing experience. When political or moral theorists talk about war, and especially about just war, they commonly begin with the right of individual self-defense. But this is only a bare beginning, and as an introduction to the understanding of warfare, it is somewhat misleading. Wars are fought by individuals, indeed, but not by individuals who are principally engaged in defending themselves. They are members of a collective, to which they attach value, often great value, and they are engaged in a project that is not merely their own. Most often the collective is a state, but it can also be a militant organization that functions like a state: it recruits fighters for a cause, trains and organizes them, and sends them into battle. The cause of many militant organizations is to establish a state; the cause for which states organize armies is to defend their own existence and the common life and individual lives of their citizens.

It is a fact of our moral history that many individuals are willing to risk their lives for these causes. This is not easy to understand. If states exist primarily to defend life, then how can life be sacrificed to defend the state? That is the question posed most clearly in the political theory of Thomas Hobbes, to which he offered no satisfactory answer. And in fact the defense of the state (and the pursuit of the cause of any militant organization) not only requires the defenders to put their own lives at risk but also requires them to put the lives of many other people at risk—the fighters they oppose, most obviously, but also the civilians they and their opponents claim to be defending. Some philosophers, working upward, so to speak, from individual self-defense, doubt that any of this can be justified. The value of my life, or yours, may justify violent self-defense, but it is hard for these philosophers to understand how any collective could have that kind of value.

They have not, however, succeeded in convincing the rest of us. Patriotism and loyalty are, no doubt, often misguided, but they shouldn’t be incomprehensible. Collectives like the state (or the army of the state) are indeed instrumental; they have no intrinsic value. But they make possible, and then they defend, another collective, a community whose existence is of centrally important value to (most of) its members. This value has many sources: history and memory, traditions of belief and practice, a culture of political engagement, the continuity of families, the sense of place, the immediacy of a way of life. When these seem to be in danger, many of us will risk our lives in their defense. Even in ordinary times, we are, all of us, collectivists of some sort—on behalf of our families, or religious communities, or nations, or nation-states. But this is a fairly weak collectivism, which only sometimes wins out over individual self-interest. The acceptance of martyrdom in a time of religious persecution is the chief example of this kind of victory. Persecution creates conditions something like those experienced in a nation under attack, when the sense of danger intensifies our collectivist sensibilities, our patriotism and loyalty. And then the defense of the common life—and of the necessary agencies of that defense, like states and armies—regularly trumps the defense of the self. That is why captured soldiers will sometimes try to escape from the prisoner of war camp: they want to resume the fighting (and they are willing to accept the risks of doing that) because they think that the victory of their nation or the success of their cause is critically important.

The intensified collectivism of war also intensifies the coerciveness of war. In some wars, soldiers fight because they have been impressed or conscripted. But when the common life is in danger or when people think it is in danger, citizens will rush to enlist in the army. We call them volunteers, but they are probably acting under very strong social pressure and also under the pressure of their own consciences—where conscience means what the word suggests: the knowledge they share with God, in the original religious formulation, or the knowledge they share with other members of their community, in secular understandings. In wartime, and commonly in both the religious and secular versions, what young men and women know is that they ought to volunteer (conscientious objection is exceptional even when it is permitted). This is collectivized knowledge, and it provides a powerful push toward what is only in a highly qualified sense a “voluntary” enlistment.

Once you are in the army, you are a member of a very strong collective of combatants, and all the people you leave behind are members of another strong collective, the civilian population. These memberships are matters of life and death—hence they are “strong” in ways that no other memberships, no peacetime memberships, can ever be. I may be a committed professional, a lawyer, doctor, or teacher; I may be a devout member of a religious community, or a political party activist, or a class-conscious worker, but none of these affiliations, though they are undoubtedly very important, is collectivized in as radical a way as combatants and noncombatants are, where being a member determines whether you can, or cannot, be targeted and killed. Perhaps there are soldiers who, given the morality of everyday life, don’t deserve to be targeted (they are against the war; they shoot their guns in the air), perhaps there are civilians who do deserve to be targeted (they are fierce and uncompromising hawks). In the circumstances of war, we cannot make these distinctions.

The moral equality of soldiers finds its parallel in the moral equality of civilians. Individuals are incorporated into both these collectives without regard to their personal moral standing. By contrast, in peacetime civil society, life and death decisions are made, in hospitals and courtrooms, for example, with careful attention to individual cases. Soldiers may receive that kind of attention after the war, if they are tried for war crimes. But when the two armies are engaged, and civilians are radically at risk, individual attentiveness isn’t possible. We fight with soldiers; we don’t fight with civilians.

The collectivism of war extends, so to speak, all the way down. It would be wrong to think of a battle as a series of encounters between individual soldiers. War is often chaotic, and soldiers are sometimes cut off from their units, forced to fight on their own, thinking at that moment only of their own survival. But battles commonly are collective engagements, shaped by a strategic plan and then by the tactical decisions of field commanders, which are enforced by rigorous military discipline. Soldiers fight together, helping each other, hoping to survive but aiming at a local victory: a target destroyed, a hill captured, a road opened, an enemy battalion outflanked or surrounded. The local victory has value only as a part of some larger scheme, but if that value is real to the soldiers involved, it justifies the risks they take, and it may justify (as self-defense would not) the risks they impose on nearby civilians. Soldiers make individual decisions about the risks they take and the risks they impose, but they make these decisions in the context of the collectivism (and the coerciveness) of war.

No one reading the literature of war can miss the sense of its strangeness—and its awfulness. To be forced to risk your life, again and again, for collective purposes: this is not what anyone wants for himself or for the people he cares about. He may think that it is important to fight (it sometimes is); he may even think that the cause is worth dying for (it sometimes is), but he would rather be doing something else. The sense that many soldiers have of being radically committed and of wishing so strongly that they weren’t—that too probably finds no easy equivalent in ordinary life. And this internally contradictory but emotionally powerful sense is common to soldiers on both sides of the battle. Indeed, soldiers on both sides recognize, if only intermittently, the feelings they share; they see themselves in the others.

Perhaps one can construct hypothetical cases that reproduce this feature, or other features, of wartime experience, though I doubt that cases taken from civil society (the bank robber and the bank guard, for example) or any of the hypothetical and constructed cases (variations on the famous trolley car story, say) actually get close enough. And I worry that theorists who focus on these kinds of cases aren’t thinking about war at all. They are not interested, or not sufficiently interested, in what actually happens on the battlefield and what it feels like to be there.

Third, war is a world of radical and pervasive uncertainty. The outcome of skirmishes and battles is hard to predict; the life chances of any particular soldier change from minute to minute; the knowledge available to officers making decisions is painfully limited. These physical and factual uncertainties probably can’t be matched in ordinary civilian life, and they exist alongside moral uncertainties that almost certainly can’t be matched. Most often in civilian life we have a fairly good idea about what ought to be done or about who can tell us what ought to be done. Moral practice has a certain habitual quality, and moral and legal authority is routinized. But in the anarchic society of states, which is also the world of war, both morality and authority are radically contested.

This doesn’t mean that individual soldiers and groups of soldiers won’t be convinced of the justice of their cause; they will be convinced, or most of them will, with whatever lingering anxieties. The soldiers of country A will follow the lead of their parents and peers, of their teachers and preachers, and of their prime ministers and presidents (this is another example of the collectivizing tendency of warfare). The difficulty is that all these people, from parents to presidents, exist in two entirely separate sets. And the soldiers from country B, opponents of country A, will be equally convinced, and some of them similarly anxious; they will be following the same leads. And there is no one in the world, literally no one, to whom these two groups of soldiers can turn for impartial and authoritative guidance. Uncertainty exists, so to speak, at the highest level. In international society, there are virtually no cases where warring states, and the neutral states watching them, agree on a single moral, political, or military description of the war; nor is there any routine way of appealing from this or that description to some ultimate judge. Wars end, one way or another, but disagreement doesn’t. The moral contests outlast the battles—as we can see if we compare the history books produced for state schools in the victorious and in the defeated country.

But what if a particular soldier knows that the war his country is fighting is unjust? Or what if the rest of us know that and think he should know it too? How can he fight in such a war? How can anyone fighting unjustly claim a right to kill his opponents, who are fighting justly? These are rhetorical questions; they are commonly asked by philosophers who insist that jus ad bellum determines jus in bello—or, at least, that the two can’t be independent of each other—and who further insist that they know which of the warring states has ad bellum justice on its side. Reflecting on the certainty that, it seems to me, underlies these questions, I am reminded of Oliver Cromwell’s response to similar certainties among Puritan ministers during the English Revolution: “Think ye in the bowels of Christ, that ye may be wrong!” That’s not where I think, but I take the point. Given the circumstances of war, soldiers have a right to be wrong, and they have a right to think that they may be wrong and to defer to the decisions of (let’s say) their democratically elected leaders. They also have a right to think that though they should oppose the war as citizens, they are bound to fight it as soldiers—because there are many states that would not survive for long in the world of war, in international society as it exists today, without a disciplined army. And, finally, soldiers have a right to refuse to fight in a war they believe to be unjust; in cases like the Nazi war effort with which I began this argument, refusal is certainly the best response. But it is an act of heroism, and it can’t be morally required; unheroic conduct isn’t criminal conduct.

But mostly soldiers sincerely believe that their war is just, for reasons that seem sufficient to them, and this belief gives a certain shape to their battles, which are fought between soldiers certain of their cause in a world where all causes are uncertain. I am not making a relativist argument here; I have argued over many years that (most) wars, on one side or the other, are objectively just or unjust. But this objectivity has no political or judicial embodiment. There is no agent of objectivity. And that is one reason for the deep principle of (standard, orthodox) just war theory: that soldiers have an equal right to fight, whether their cause is, or isn’t, objectively just. Soldiers on both sides have exactly the same rights and obligations. If they are captured, they must be treated similarly and equally, that is, in accordance with the (morally strange) prisoner of war convention. And after the war, they should be encouraged and helped in exactly the same way to go home and resume their civilian existence.

In fact, all the special features of the world of war conspire to produce this principle of warrior equality, which obviously has no domestic equivalent (again: bank robbers and bank guards are not equals, even if the bank turns into a battlefield). The different forms of wartime coerciveness—social pressure, conscription, army discipline, military necessity—impact the soldiers on both sides in roughly the same way. The heightened sense of collective belonging and commitment is felt in similar ways by all of them. And they all live with the same uncertainties.

If we want to constrain the conduct of soldiers on the battlefield, we must recognize these similarities. We must insist that all soldiers, whether they think their cause is just or unjust, and whether we think their cause is just or unjust, have the same rights and, what is even more important, the same obligations. No group of soldiers, claiming to be just warriors, can arrogate to themselves rights they deny to others or claim exemption from everyone else’s obligations—for if that is allowed and justified, there will soon be no constraints at all.

The moral equality of soldiers is perhaps the strangest rule of war. But philosophers who deny its morality seem to me to miss the force of that preposition: “rule of war.” To understand the rule, you have to take an interest not only in moral theory, which accounts for the strangeness of the rule, but in war itself, which accounts for the existence of the rule.