Many of us believe that pacifism is mistaken. Warfare, though it involves intentional killing, can sometimes be justified. At the same time, we believe humans enjoy fundamental moral protections against being deliberately killed – commonly expressed in the language of human rights. The challenge is to render these two commitments mutually consistent. We could argue that in justified wars those whom we intentionally kill are liable to be killed: they have lost or forfeited the protection of their rights, so killing is just, because it is rights-consistent. Or we could concede that warfare necessarily involves violating rights, but argue that weightier reasons can override those rights violations, rendering warfare all things considered justified, though unjust.
Contemporary philosophers of the ethics of war, despite their other profound disagreements, until recently unanimously affirmed the first option. Michael Walzer (2006/1977: 135) argued that ‘a legitimate act of war is one that does not violate the rights of the people against whom it is directed’. Jeff McMahan, for all his other criticisms of Walzer, agreed that, with very rare exceptions, intentional killing in war must be justified, if at all, by the target's liability (1994, 2004, 2009; although see also 2014). Likewise, Walzer's supporters (Benbaji, 2008; Steinhoff, 2008; Emerton and Handfield, 2009) and his many opponents (Kamm, 2004; McPherson, 2004; Øverland, 2006; Miller, 2007; Altman and Wellman, 2008; Coady, 2008; Fabre, 2009a; for dissenting views, see Kutz, 2008; Shue, 2008). The dispute between these camps is over who loses their rights in war: Walzerians advocate the ‘symmetrist’ position that combatants on both sides of any war lose their rights to life, while noncombatants on both sides retain them; anti-Walzerian ‘asymmetrists’ think that combatants and perhaps some noncombatants whose side went to war unjustifiably – hereafter combatants-U and noncombatants-U – lose their rights against attack, but combatants and noncombatants on the justified side – combatants-J and noncombatants-J – retain them.
I think this endorsement of Walzer's starting assumption is a mistake – at least, if we want to justify a plausible set of armed conflicts, while affirming a plausible theory of the right to life (see Lazar, 2009a, 2010a; for similar views, see Kutz, 2008; Shue, 2010). If all combatants-U must be liable to be killed for warfare to be permissible, we have to set the threshold of responsibility for that liability low enough to ensure that even the most inept, inactive combatant meets it. But if we endorse this low-threshold view, then, at least in modern states, we will render whole adult populations liable to be killed, since we are almost all responsible, if only minimally, for our states' war-fighting capacities – through our taxpaying, voting, contribution to war-related industries, and so on. If mere contribution or innocent contribution were sufficient, very few would escape the liability net. Most will find this untenable: they must argue that liability presupposes a ‘fit’ between the degree of responsibility or contribution and the resulting fate. But once we endorse this high-threshold view, we find that many of the combatants-U whom we need to kill are not sufficiently responsible, or do not contribute enough, to be liable to be killed.
For those who reject collective liability – which includes all the just war theorists mentioned so far – liability can be grounded only in the assessment of each potentially liable individual's behaviour. As his critics argued, Walzer's generalization over all combatants is unacceptable – but so is their generalization over all combatants-U. Considered as individuals, at least on the more plausible high-threshold view of liability, some combatants-J are liable to be killed; not all combatants-U are liable. If individual rights are inviolable, we must ensure that each individual whom we intentionally kill is liable to that fate. Yet warfare is too messy for us ever to fight wars that satisfy this demand. Most killing happens from a distance; the targets are coordinates rather than individuals. The relevant actors frequently cannot discriminate between those who are and those who are not liable to be killed. Any theory of our right to life that is sufficiently indiscriminate to render this carnage consistent with that right is surely not discriminating enough to be a plausible theory of our right to life. In all likely wars, we will intentionally kill and maim many non-liable people. Wars cannot be wholly just. If they must be entirely just to be justified, we should endorse pacifism.
This chapter proposes one strand in an alternative solution – one that affirms the high-threshold view of liability to be killed, and therefore concedes that the rights-respecting war is an unattainable ideal, but maintains that warfare can nonetheless sometimes be justified. I focus on a class of widely neglected reasons. Most of us share a number of morally important relationships with those closest to us – our family, friends and other loved ones. Combatants enjoy similarly significant relationships with their comrades-in-arms. When aggressors attack, they threaten those with whom we share these relationships – our associates. Sometimes we can protect our associates only if we fight and kill. We have duties to protect our associates, grounded in the value of these special relationships. Our armed forces are the executors of those duties. When they fight, those duties may clash with the rights that they must violate to win the war. In some cases, the associative duties to protect can override those rights, thus rendering some acts of killing all things considered justified. I call this the ‘associativist account’ of (part of) what justifies killing in war.
While contemporary just war theory is almost exclusively impartial in orientation, ordinary understandings of the justification of warfare are characterized by extreme partiality. I think it is commonplace to suggest that, when people justify fighting to themselves, their desire to protect their loved ones, their comrades-in-arms and their community is at the forefront of their reasoning.
The fighter is often sustained solely by the determination not to let down his comrades … Numberless soldiers have died, more or less willingly, not for country or honour or religious faith or for any other abstract good, but because they realized that by fleeing their post and rescuing themselves, they would expose their companions to greater danger. Such loyalty to the group is the essence of fighting morale.
Similarly, Joanna Bourke finds that ‘combatants cited solidarity with the group and thoughts of home and loved ones as their main incentives’ (1999: 142). Obviously, it is possible that this is just the sort of chauvinism that morality should condemn – all the more so given how high the stakes are in war. This chapter, however, is motivated by a curiosity as to whether this common-sense partiality has any place in the morality of war.
Notice, though, that the associativist account is not a comprehensive theory of what justifies killing in war. The best such theory will include, alongside the arguments discussed here, a theory of permissible killing in self-defence and other-defence, including a defence of the high-threshold approach to liability, as well as an account of the independent moral significance of goods such as political sovereignty and territorial integrity. My goal here is simply to insist that reasons of partiality be incorporated into that more comprehensive theory.
My argument will be restricted in one further respect. A full defence of the associativist account should invoke duties that we owe to compatriots qua compatriots. I will not argue for these duties here, since doing so is itself a challenging task and the subject of significant debate (though see Lazar, 2010b). Instead, I will argue that the duties that we owe to those with whom we share our deepest, most valuable personal relationships – which often overlap at least with residency in the same territory, if not with co-citizenship – can help justify killing non-liable people in war.
I begin by identifying the relevant class of special relationships and the associative duties that they ground, focusing on family, friendship and fellowship of arms. I then argue that associative duties are both more stringent and more grave than otherwise comparable general duties – meaning, respectively, that they can exact greater costs from the duty-bearer, and that they weigh more heavily against other moral considerations. In particular, I argue that our associative duties to protect those with whom we share valuable relationships can sometimes override our general negative duties not to harm others.
Having shown that when we fight to protect our loved ones, we are justified in imposing more costs on innocents than when we fight to protect strangers, I go on to show how that view can be operationalized in the morality of war. This involves two tasks: first, showing how soldiers who fight on behalf of their community can justify their actions as the execution of the associative duties that the members of that community owe to protect their loved ones; second, showing that the argument from associative duties can justify the sort of killing that a theory of war's morality particularly needs to justify. I then show how the associative duty to protect is restricted in various ways.
I understand duties as a kind of moral reason, distinguished by being non-voluntary, having a particular weight, and retaining its force when overridden. Thus, if you have a duty to ϕ, and no equally weighty moral reason not to ϕ, then you may not permissibly choose not to ϕ. Sometimes, however, you have other reasons not to ϕ, for example a duty to ψ that is incompossible with ϕing. If the latter duty is weightier than the former, you ought to ψ. And yet, though the ϕ duty was overridden, it retains its force: with respect to that duty and its beneficiary, you have acted wrongly, even if ψing was all things considered justified.
Impersonal duties are owed to nobody, interpersonal duties to other person(s) and personal duties to oneself. General duties are interpersonal duties owed to everyone, and special duties are interpersonal duties owed to specific people, because of some interaction or relationship. Associative duties are a subclass of special duties that are owed in virtue of a morally important relationship. To demonstrate an associative duty, we must first show that a candidate relationship has properties that are of significant non-instrumental value (i.e., that give strong, direct reasons for action); and then that the duty is either a necessary condition of preserving those properties or is otherwise constitutive of the relationship or of an appropriate recognition of the relationship's value.
The relationships that I think are particularly relevant to the ethics of war are those between family members, friends and comrades-in-arms. I argue at length elsewhere that these relationships can indeed ground associative duties relevant to justifying killing in war (Lazar, 2013). For reasons of economy, here I rely on the intuitive plausibility of that claim. I think that everyone who thinks that there are any associative duties at all should agree that at least some intimate relationships such as these are sufficiently valuable to ground them. And anyone who thinks we have associative duties to protect those with whom we share these kinds of valuable relationships must surely think that we have duties to protect them from the kinds of serious threats that arise in war (that is, if you have duties to protect your loved ones from any threats, then you surely have a duty to protect them from being killed). It's important to stress that not all relationships between friends, family members and comrades-in-arms will be valuable in the relevant way. Sometimes, people's most intimate relationships are among their most corrupted and pernicious. All I mean to assert is that some relationships such as these can give their members associative duties to protect one another from the threats that arise in war.
But what does it mean for A to have an associative duty to protect B? Suppose A and B share a valuable relationship of the kind described; for A to respond appropriately to the valuable properties of that relationship, he must give greater weight to B's interests in his deliberations than if their relationship did not obtain. That is precisely what it means to view a relationship (and one's associate) as special. The special relationship acts as a moral amplifier.
The strength of duties varies along at least two dimensions: the costs they can justify imposing on the duty-bearer and their relative weight when they clash with other moral reasons. We can call these dimensions stringency and gravity respectively. In my view, special relationships amplify duties along both dimensions. In virtue of his relationship with B, A must bear greater costs to serve B's interests than if there were no relationship: his duties to B are more stringent. And in virtue of that relationship, A's duties to B are more likely to override other moral considerations than if they were not owed to an associate: his duties to B are graver.
The next section substantiates the second claim. Here, I will illustrate the stringency claim. Suppose that A is at the beach and sees B struggling in the water. If A had no connection with B, then he might be required to take on x cost in order to save him. But if B is someone with whom A shares a valuable relationship – his son, say – then the cost that he ought to bear will be greater than x. So, suppose B is caught in a rip, and A judges that he would be risking his life to try to save B. This would not be morally required were B a stranger (suppose), but may be required if A is his father, and they have a valuable relationship. This will of course depend on further details – A's prospects of saving B must be sufficiently high, for example – but the basic point should be clear.
Sometimes this amplification is best described by saying that A's duty to B is more stringent if they share a valuable relationship; sometimes the amplification results in a duty obtaining that would otherwise be absent. Special relationships might generate other duties that cannot be analysed in this way, but these amplifying duties are sufficient for the purposes of this chapter.
What explains this amplification? Suppose you fail to perform a duty owed to your associate, which you would have owed even in the absence of the relationship. You retain the reasons that apply in virtue of your shared humanity – you have damaged the interest protected by the duty and disregarded the victim's moral standing (see Lazar, 2009b). But you have also betrayed a friend and disregarded the value of the relationship between you. This additional reason amplifies the force of the reasons you already have.
We respond appropriately to the valuable properties of our deep personal relationships by giving our associates' interests greater weight in our deliberations than would be justified absent that relationship. This means bearing greater costs to protect their interests than we are required to bear for non-associates. In this section, I defend the more controversial view that we can justifiably impose greater costs on non-associates to protect our associates' interests than would be permissible without that relationship. Indeed, I argue that we can permissibly kill non-associates to save the lives of associates.
To begin with, however, it is helpful to consider the infliction of harms short of death. Suppose a meteor is plummeting from the sky, directly towards B, and will surely kill her if nothing is done. A can deflect the meteor using her surface-to-air heat-seeking missile launcher. But if she does so, fragments of the meteor will hit a non-liable person C. Suppose, for now, that A bears no relation to either B or C. If she lets the meteor fall on B, she must consider the harm that B suffers and the qualitative evaluation of letting B suffer that harm. If she diverts it towards C, she must consider the harm that C will suffer and the qualitative evaluation of diverting that harm towards C. Her two options, in other words, each involve agential and harm-based dimensions. Suppose that intervening in a causal process leading to harm is qualitatively worse than failing to prevent a causal process from resulting in harm. If the prospective harms to B and C are equal, then A ought to do nothing, since letting B die is better in one respect and in no respect worse than killing C. However, if the prospective harm to C is less than the harm to B, then A might be required to divert the meteor – though the agential difference between her options means that the harm to C must be more than marginally less than that to B. But there is some threshold of harm H, such that if the harm to C is less than H, A is morally required to divert the meteor.
I suggest that when B and A share a valuable relationship, the threshold of harm A can permissibly inflict on C to save B's life is higher than if A and B are not associates. This is so for two reasons. First, in virtue of their valuable relationship, A must give greater weight to B's interests than would otherwise be so. Second, the agential dimension of failing to save B is qualitatively worse given their relationship – it amounts to a failure to recognize the value of their relationship. A has weightier reasons to save B's life when they share a valuable relationship, so those reasons can outweigh more harm inflicted on C. In the terms introduced above, A's duty to protect B is graver when B is her associate.
This view contravenes philosophical orthodoxy, according to which our associative duties cannot override general negative duties (McMahan, 1997; Scanlon, 1998; Kolodny, 2002; Pogge, 2002; Scheffler, 2002; Keller, 2007; Seglow, 2010; in the context of war, see Lefkowitz, 2009; for a more sympathetic view, see Kamm, 2004; Hurka, 2005). Breaching negative duties is not lexically worse than breaching positive duties – as though we ought to perform any negative duty, no matter how slender the interests at stake, in preference to any positive duty, no matter how serious. And as the meteor example shows, sometimes it is permissible to breach negative duties as a lesser evil, even in the absence of a special relationship. My contention is simply that our deep personal relationships affect how much harm can be inflicted as a lesser evil.
One might concede this much, yet deny that our associative duties can justify killing. However, while killing a non-liable person is clearly a presumptively wrongful act, not all acts of killing are alike. There are important agential differences between killing and letting die, between intentional killing, unintended but foreseen killing, unintended, unforeseen, but foreseeable killing, and unintended, unforeseen, unforeseeable killing. There is a further distinction between eliminative and opportunistic killing. In eliminative killing, the killer derives no benefit from the victim's death that he would not have enjoyed in the victim's absence. In opportunistic killing, the killer does derive such benefits (Quinn, 1989; Frowe, 2008; Quong, 2009; Tadros, 2012). If A diverts the meteor towards C, then while A clearly foresees C's death she does not intend it. Her killing is also eliminative, insofar as she would be no worse off if C were elsewhere (some think that eliminative agency is a subset of intentional agency; I disagree). Contrast this with an alternative, whereby, unless the meteor lands on someone, it will explode and kill B anyway. If A diverted the meteor towards C in this case, she would be using C opportunistically, deriving a benefit that would have been unavailable in her absence. This would be a qualitatively worse killing.
At least in 1 : 1 cases, the duty to protect one's associates from lethal harm cannot override the general negative duty not to intentionally, opportunistically kill a non-liable person. But, as I now argue, it can override the general negative duty not to foreseeably eliminatively do so.
My argument that A's associative duty to protect B can justify killing C starts with the comparison of three cases, and a commitment to transitivity in ethical reasoning, according to which, if the moral reasons for ϕing outweigh those for ψing, and those for ψing outweigh those for μing, then the moral reasons for ϕing outweigh those for μing. While the transitivity of moral reasons has in recent years come under sustained criticism (Dancy, 1993, 2004; Temkin, 2012), it remains the default, common-sense position.
Case 1 A meteor is plummeting towards the earth, and, if A does nothing, will kill five non-liable people. If she uses her missile launcher, however, she can divert it away from the five. If she does so the meteor will land on and kill C.
This is just the standard trolley case, albeit with meteors instead of trams. I am assuming, note, that the cost to each person of dying is the same, and that the costs to others of their deaths are also the same. It is intuitively clear to most that A is at least permitted to divert the meteor. Indeed, anyone who denies that it can be permissible to foreseeably kill an innocent person as a side-effect of saving others (or who thought the ratio had to be much higher than 5 : 1) would have to be a pacifist. Wars cannot be fought without foreseeably killing innocents.
Case 2 Two meteors are plummeting towards the earth. One is headed towards a group of five, as in case 1. The other is headed towards A's daughter, B, with whom A shares a paradigmatic special relationship. A has only one missile, and can divert only one meteor. The diverted meteor will land harmlessly in a field.
Again, I think it is intuitively obvious that A is permitted to save B rather than the five. Moreover, I think that A is morally required to save her daughter – she would be acting wrongly if she did not. I offer more discussion of this distinction below.
Case 3 There is only one meteor again, and it is headed towards A's daughter B. A can divert the missile, but it will subsequently land on and kill C.
I think A ought to divert the meteor, killing C, in order to save her daughter. The argument to reach this conclusion can be stated in two versions, one stronger than the other. The stronger form is this: in case 1, A is morally required to save the five, rather than avoid killing C; in case 2, she is morally required to save her daughter, rather than the five; so, by transitivity, in case 3 she is morally required to save her daughter, rather than avoid killing C. The weaker version is: in case 1, A is permitted to save the five, rather than avoid killing C; in case 2, she is permitted to save her daughter rather than the five; so, by transitivity, in case 3 she is permitted to save her daughter, rather than avoid killing C.
Why should we believe the stronger version of this argument? Some of course will simply share my intuition about case 3, so the argument from transitivity will be otiose. Those who do not initially share that intuition, but agree with my assessments of cases 1 and 2, might be persuaded to change their minds about 3 if they think that A's deliberations in these cases should take the form of weighing her reasons for action to reach a conclusion about what she ought to do, all things considered. We can model this by using numerical values to capture the weight of her reasons – remembering, of course, that the numbers are just a heuristic. Following the model introduced above, we can distinguish between agential reasons against ϕing, and harm-based or, better, interest-based reasons against ϕing. For simplicity, let us posit that agential and interest-based reasons are additive.
Suppose the interest-based reasons against killing C (independent of the agential dimension) are of magnitude 100, while the agential reasons against killing her are of magnitude 900. The interest-based reasons against letting each of the five die are also of magnitude 100, while the agential reasons are, for each one, 110. A's reasons to save the five amount to 1050, while her reasons not to kill C amount to 1000, so she ought to save the five by killing C.
On this model, if A is required to save B rather than the five, then the magnitude of her reasons for saving B should be greater than her reasons for saving the five. On my view, A ought to give her associate's interests additional weight in her deliberations. Plus, there is a distinct agential dimension to failing to protect someone with whom she shares a valuable relationship. We could model this by saying that her interest-based reasons to save B amount to 200, while the agential reasons against letting her daughter die amount to 900, giving a total of 1100.1
The specific numbers, of course, are arbitrary; they are just a means of modelling A's deliberations. But if this is a sound way for A to deliberate, then the permissibility of her killing C to save B should follow – if her reasons to save B are greater in magnitude than her reasons to save the five, and her reasons to save the five are greater in magnitude than her reasons not to kill C, then, since ‘greater in magnitude than’ is a transitive relation, her reasons to save B should be greater in magnitude than her reasons not to kill C.
However, this model supports the stronger version of the argument only if A is indeed morally required to save B rather than the five, in case 2. And while I think A is definitely not required to save the five rather than B, I do not have a conclusive argument that she is required to save B rather than the five.
Morality cannot plausibly be so demanding as to require A to sacrifice her chance to save her daughter in order to save the five. The central theme of much non-consequentialist ethics – apparent, for example, in the contrast between eliminative and opportunistic agency mentioned above – is that there is something inherently objectionable about our being made into resources for the advancement of valuable states of affairs or opportunities for others to exploit to their advantage (for a powerful recent statement of this classic view, see Tadros, 2012). Just as A may not use C as a means to save the five, so she cannot be required to make herself into a means to save them, when the cost of doing so is as great as sacrificing her daughter's life (I discuss why in greater depth below).
I am less certain that A is morally required to save B, however. Though I think she certainly wrongs B by failing to save her, she may not be acting wrongly, all things considered. On my view of associative duties, B has a justified claim against A, grounded in their valuable relationship, that A give her interests greater weight than if their relationship did not obtain. By failing to save her, A fails to give B's interests that weight and shows disrespect for their relationship, wronging her. To deny this, while accepting the argument of the previous paragraph, would be to suggest that the moral significance of A's duties to B is exhausted by their contribution to A's well-being. This would effectively reduce those duties to prudential reasons. This is a serious category mistake: our reasons to protect our nearest and dearest are not merely complicated reasons of self-interest. Failing to protect those whom you care about is not merely irrational or stupid – it amounts to a genuine moral failing.
While A wrongs B by failing to save her, there are two interpretations consistent with this judgment. On the first, A simply acts wrongly, all things considered. The second is that, in saving the five, A permissibly breaches her duty to protect B in order to do something supererogatory (Kamm, 1996: 317). Though saving the five is all things considered permissible, it involves pro tanto wronging B. If A saves B, then she both fulfils her associative duty to B and acts merely permissibly. This interpretation captures my view that A genuinely owes B a duty to protect her – it is not merely a question of fulfilling her self-interest – while remaining consistent with the conclusion that A is merely permitted to save B, rather than required.
My theory and intuitions strongly favour the first interpretation: A acts impermissibly if she fails to save her daughter. By saving the five at the expense of her daughter, she is not showing an admirable capacity for self-sacrifice, but an objectionable lack of regard for her child and the relationship they share – I liken her to Dickens's Mrs Jellyby, whose concern for the distant needy leads her to neglect her own children. But one could reasonably argue that while it would perhaps be wrong to save one stranger rather than her child, when there are five other lives on the line, it is permissible for A to sacrifice her chance to save her daughter, for the greater good. Those who agree with the first interpretation of the case should be satisfied with the stronger version of the argument; to convince those who affirm the second interpretation, I need to defend the argument in its weaker form.
The weaker version of the argument, however, faces a serious objection: that my purported transitivity fails because the first two cases do not give enough information to draw conclusions about the permissibility of killing C in case 3. Case 1 tells us that the duty to save five is graver than the duty not to kill C, and case 2 tells us something about the stringency of the duty to save five, but nothing about the gravity of the associative duty to save B. So, how can we draw warranted conclusions about either the stringency of the duty not to kill C or the relative gravity of that duty and the duty to save B?
One might respond that the duty not to kill C is less stringent than the duty to save the five just in case the latter duty is graver than the former. But that is quite implausible, as the following trio of cases shows.
Case 4 Two meteors are falling towards the earth, each headed for a group of five people. A can press a button that will fire missiles at each meteor, diverting them. But this will lead to the meteors instead crushing two different people (C1–2).
Case 5 There are three meteors plummeting towards the earth. Two are, as in case 4, each heading for a group of five people, the third for A. She can press a button to fire a missile that will divert the meteor headed at her, or one that will fire two missiles, saving the ten. Either way, the diverted meteor(s) will land harmlessly.
Case 6 There is only one meteor again, and it is headed towards A. A can divert the missile, but if she does so it will land on, and kill, two people (C1–2).
I assume that if diverting the meteor is permissible in case 1, it is permissible in case 4. This could involve the fallacy of composition, but probably does not: if the duty to save five lives is graver than the duty not to kill one, then two instances of the former duty should be graver than two instances of the latter. I also assume that A is permitted to save herself in case 5, even though it means letting the ten die. So the duty to save ten is graver than the duty not to kill two, but not stringent enough to require A to sacrifice her life. If duties' relative stringency can be inferred from their relative gravity, then in case 6, A should be permitted to divert the missile towards C1–2. Her duty not to kill them cannot be more stringent than her duty to save the ten, since it is less grave, as case 4 shows. But it is surely not plausible that A is permitted to kill two to save herself.
To save the weaker version of the transitivity argument, I need either to show how facts about stringency can be inferred from facts about gravity, or argue that the permission to save B rather than the five is more than a reflection on the stringency of the duty to save the five. Recall that, since the stronger version relies only on gravity to make its case, it is untouched by this objection.
I think it would be unusual for stringency and gravity to be either wholly disconnected from one another or connected by some sort of discontinuous relation. The considerations that ground a duty's weight relative to other moral reasons and those that ground its weight relative to the interests of the duty-bearer seem at first sight to be just the same considerations. When we assess the gravity of the duty to save another person, we adduce the moral weight of that individual's interests and the independent significance of her standing relative to the duty-bearer (qua human being or qua associate); when we assess that duty's stringency, we appeal to just the same considerations.
However, one consideration does bear on stringency and gravity in different ways. This is the basic non-consequentialist thesis that there is something inherently objectionable about making people into resources for realizing valuable states of affairs. This ‘means principle’ (Tadros, 2012), grounds differences in the stringency of positive and negative duties. If A were morally required to sacrifice her own life to save the ten in case 5, morality would make her a means for realizing the best state of affairs, at the cost of her own life. Negative duties, by contrast, do not make us into a means for realizing optimal states of affairs. If A performs her duty not to harm C, in case 3, she does not become a means. She does not thereby save C. Nor does her presence provide C with a benefit she could not have enjoyed in A's absence. Had A not been there, C would have been just fine. Since adhering to negative duties does not make us into a means, there is nothing inherently objectionable about them.
The means principle explains, then, why a given positive and negative duty can be differentially exacting, even when other considerations that ground stringency and gravity are basically the same. And importantly, while the means principle has some bearing on the gravity of positive and negative duties, it does so in quite a different way: it lends additional gravity to duties not to turn others into a means. But while such duties are more likely to be negative than positive, they can also be positive, and plenty of negative duties are not grounded in the means principle. One salient example is the negative duty not to harm a non-liable person eliminatively, with which we are primarily concerned here.
So, even if the other reasons that ground our assessment of a positive and negative duty's relative gravity are identical, they can be differentially stringent because of the means principle's contribution to the stringency of positive duties. Thus we can consistently affirm (in cases 1–3) that it is permissible to save the five rather than not kill the one, permissible to save B rather than save the five, and yet impermissible to save B rather than not kill the one.
The second approach, recall, is to argue that the permission to save B rather than the five is more than a reflection on the stringency of the duty to save the five, hence cases 4–6 are not in fact analogous to cases 1–3. This is because A's permission to save B depends crucially on the duty she owes to protect B from harm, not merely on the great cost to her of not saving B. Since cases 5 and 6 involve only costs to A's well-being, rather than any associative duties, we can consistently deny that killing C1–2 is permissible in 6, while affirming that killing C is permissible in 3.
My own view is that even this interpretation of A's position is not quite right. I think that her duty to protect B is graver than her duty to protect the five, which is graver than her duty not to kill C; so her duty to protect B is graver than her duty not to kill C. In other words, I affirm the strong interpretation of the argument. But surely some who reject that view will find this intermediate alternative attractive: there is something fundamentally odd about supposing that the deliberative force of A's reasons to protect B are reducible, in case 2, to the contribution B makes to A's well-being. This chapter is premised on the assumption that our associative duties are genuine moral reasons. If that is true, then it is possible that only when the costs to A are combined with her duties to B is it permissible for her not to save the five, and likewise in case 3 – the moral reasons grounded in A's associative duties to B are a necessary condition of her being permitted to kill C.
The argument that A can permissibly kill C, in the course of saving B's life, should go through for those who agree with the strong interpretation, according to which A is required to save B, at the cost of C's life; and for those who favour the intermediate interpretation, which says that A's associative duties to protect B are a necessary component of the permissibility of her killing C. Those who affirm the weak interpretation may remain unconvinced. For them, one last gambit is possible. At least some will believe that it is permissible for A to kill C (in the manner described in the cases above), when she has no other means of saving her own life. That is, they think the duty not to kill C is not stringent enough to require A to sacrifice her own life rather than take C's. These philosophers should agree that, on the same grounds, it is permissible for A to kill C in the course of saving B in case 3, at least if A would choose to sacrifice her own life to save B, if she could. For if A would make that sacrifice, then she regards death (while B lives) as preferable to life without B. If she cannot be required to bear the cost of death to avoid killing C, then she cannot be required to bear the comparable cost of life without B.
Suppose that war is imminent and that we can do nothing, as individuals, to prevent it: either because we face an implacable adversary or because we cannot alter our government's course of action. We and our closest associates are under threat; necessarily for active combatants, most likely for noncombatants too. Our loved ones face the prospect of grievous damage to their most vital interests. Each of us owes it to our associates to protect them, if we can, against these threats. I have just argued that these duties can override some duties not to harm others, but how are they operationalized, so that they become directly relevant to the justification of killing in war?
Combatants' duties to protect their comrades-in-arms are operationalized automatically by the onset of conflict – in defending their comrades and their associates back home, they are acting (at least) on reasons that apply to them directly. In a levée en masse, where erstwhile civilians rise up to defend themselves and their families, the same is true – each person can permissibly fight (and kill), while appealing only to reasons that directly apply to himself. But this is not the whole story. I will argue that combatants can act on behalf of the community of which they are a part, and that their actions can be justified by reasons that apply directly to the members of that community. They act not only on reasons that apply to them qua individuals, but on reasons that apply to them qua representatives of that community, which include the associative duties that are, in part, the very grounds for living together in communities and organizing ourselves for collective defence.
Imagine a village in the state of nature, in which 100 families live. Suppose it lacks any institutional structure besides a few informal public spaces. One day, the village is attacked by a marauding band. The villagers, disorganized as they are, each defend their own families and friends from this murderous crew. It should be uncontentious, I think, that part of what justifies each person in using force to defend his loved ones are the associative duties that they owe to protect them. Perhaps one might think that, if all the marauders are liable to be killed, then the villagers have no need to appeal to their duties to protect their loved ones; simple principles of self- and other-defence will suffice. Suppose, then, that each marauder is on horseback with an innocent human shield tied to the horse, so that the villagers cannot defend themselves without risking harm to innocents. Then we must invoke duties that can override the duties not to harm innocents.
Suppose the villagers successfully fight off the band. After they have treated the wounded and cleared up the damage, they decide that some among them – the most martially adept – should stand guard over the others. Some time after they establish this militia, the marauders come back. Surely whatever reasons justified defence in the first case, where the villagers each fought to defend their own, should also justify defence in the second case, where they have deputed some to fight on their behalf? Why should those reasons disappear merely because the villagers have a more robust way to ensure that their loved ones are protected?
Warfare requires natural attributes of courage and skill, and considerable training. Many people would make ineffective soldiers. Moreover, these differences in ability raise serious problems of fairness. Those who can fight effectively are better able than others to perform their associative duties. Moreover, in most conflicts it will not be necessary for every able-bodied person to fight; indeed, it would probably be counterproductive. Thus non-fighters are able to free-ride on others' military capabilities, which in turn threatens to cause serious collective action problems. We resolve these problems by creating institutions to enable us all to perform our duties to protect – whether associative or general – in a fair and optimal way. The armed forces are the executors of those duties: when soldiers fight, they are not simply responding to reasons that apply to them as individuals, but also to reasons that apply to all of us in the community they represent, on our behalf. And when we assent to and provide for these institutions, we authorize them to defend our associates on our behalf.
This institutionalist argument operationalizes the duties underpinning the associativist account, rendering them directly applicable in war and showing how the associative duties of civilians in a society can justify the killing done by their armed forces. It also forestalls some worries that the account might raise. For example, it allows us to remain agnostic on whether duties to compatriots qua compatriots play an important role in justifying killing in war. Co-citizenship is quite different from the relationships that paradigmatically generate associative duties, but in most political communities, most people will share most of their special relationships with other people who are resident in the same territory. There are obviously exceptions, but the requirement of optimality justifies concentrating on those duties that substantially overlap.
The institutionalist argument addresses another worry about the associativist account. Participating in even a justified war can often damage combatants' valuable relationships. Kept apart from their families, and subjected to radically different experiences, rifts can emerge. If their participation in war were justified by reasons grounded in their own relationships, those reasons might in fact mandate not fighting, given the risk to their deep relationships.
This objection invites three responses. First, sometimes combatants ought to put their own special relationships first, and refuse to fight. Second, that injunction must be qualified by the countervailing pull of their duties to their comrades-in-arms.2 Given the relative threats faced, in some cases protecting their comrades-in-arms will be justifiable even if it means sacrificing their relationships with those back home. Third, combatants are not performing their own associative and general duties alone; they are also the executors of those duties for their whole society. These duties give them powerful reasons to serve, even when they undermine their own relationships by doing so.
The institutionalist move might draw some criticism from those who think that our associative duties, as agent-relative reasons, cannot be transferred like this. My associative duty to protect my wife, for example, does not give you reason to protect her. That I could justifiably ϕ, because I have agent-relative reason to ϕ, does not mean that ϕ-ing is justified for you. However, if you are acting on my behalf – if I have authorized you to be my agent, and you have assented to that authorization – then you should enjoy the same permission that would otherwise apply to my action. In virtue of my being permitted to ϕ, I have the moral power to authorize you to ϕ on my behalf, even though, without that authorization, you would not be permitted to ϕ (see also Fabre, 2009b, for a similar argument). The same dynamic operates in contracts. Suppose I have a right to collect a debt from you and I empower a bailiff to collect that debt. As he is acting as my agent, with my authorization, he is entitled to respond to the reasons that apply to me. Without that authorization, he would just be some guy trying to take your car.
When their lives are at stake we surely have reason to ensure that our associates are protected, though not necessarily that we specifically be their protectors. The advantages of coordination are so great that it would be absurdly counterproductive to insist on carrying out these duties ourselves.
This shows how the duties that I owe to protect my son (for example) can be relevant to the justification of actions taken, on my behalf, by soldiers defending us against military aggression. The arguments above showed that our duties to protect those with whom we share valuable relationships can override the duty not to kill a non-liable person, at least in 1 : 1 cases where the victim is killed foreseeably and eliminatively, rather than intentionally and opportunistically. One might nonetheless think that the contribution made by the associativist account to justifying killing in war will necessarily be incomplete. After all, successfully fighting wars surely requires opportunistic and intentional killing, as well as eliminative and foreseen.
I readily concede this objection: our duties to protect our associates cannot, in my view, override duties not to harm others opportunistically when the harms in question are otherwise roughly equal. The associativist account is not intended to be a comprehensive theory of the morality of killing in war, but to contribute one significant piece to that theory. Our reasons to protect our associates probably cannot justify defensive war against purely political aggression (which does not threaten our special relationships); I also concede that they cannot justify the opportunistic killing that war inevitably involves. The best theory of the morality of war will need to appeal to more than associative duties.
That the associativist account is incomplete does not, however, entail its irrelevance. Necessary killing in war covers the gamut; some of it can be justified by appeal to associative duties. In particular, I think that much of the intentional killing in war is qualitatively no worse than the redirection of a meteor in the cases above. Killing innocent people eliminatively is no harder to justify when it is intentional than when it is unintentional. Much intentional killing in war is eliminative in the following way: we would confine our attacks to those enemy combatants who are liable to be killed if we could, but we cannot tell the liable from the non-liable. We therefore cannot defend ourselves at all, unless we are prepared to intentionally kill people who may turn out not to be liable. We would be just as well off if the non-liable combatants-U did not exist, indeed better off, for then we could kill the liable combatants-U without the moral cost of killing the non-liable. To see that these killings are equivalent to unintended eliminative killings, consider the following pair of cases (inspired by McMahan, 2011):
Bunker 1 Ten Islamic State militants are taking cover in a bunker. An innocent civilian is trapped nearby.
Bunker 2 The militants have grabbed the civilian and hauled him into their bunker; you're unable to tell them apart.
Suppose that, in each case, your only weapon is a hellfire missile, which will surely kill all 11 people. Then I think it is obvious that it is permissible to proceed in Bunker 1 if and only if it is permissible to do so in Bunker 2. In my view, firing the missile at the bunker, knowing the innocent person is inside counts as intentionally killing the innocent person as well as the militants. But suppose you disagree with that. Now imagine that the only way to kill the militants is with a sniper rifle, and that time is short – if you do not kill them all within the next minute, they will carry out some deadly threat. Then I think you may permissibly kill each person in sequence, on just the same grounds as you could fire the hellfire missile, even though in this case you are intentionally killing each person. Now, one could argue here that this is not the kind of intentional killing to which morality attaches such opprobrium, but that is irrelevant for my purposes. All I need is that this is a kind of intentional killing of the innocent, which is qualitatively similar to the eliminative unintentional killing of the innocent which I have argued can be justified by appeal to associative duties.
But operationalizing the associativist account is not simply a matter of showing that it can justify the kinds of intentional killing that war inevitably involves. It must also not prove too much. In particular, it should not license killing noncombatants (otherwise we are no better off than on a low-threshold, liability-based view). Elsewhere, I show that killing noncombatants in war is more seriously wrongful than killing combatants, so it does not follow from the availability of lesser-evil justifications for killing non-liable combatants-U that we will be able to justify killing noncombatants-U as well (Lazar, 2015).
One might object that the associativist account draws on reasons that are detached from regular morality, offering a distinct source of normativity potentially radically at odds with our standard moral reasons, which might have very troubling implications outside of war. There are three important variants of this objection. First, sometimes our associates are liable to be harmed – sometimes they even deserve it. Does the associativist account ground duties to protect them then? The second variant notes that sometimes really evil people can develop deep relationships with one another. Do they accordingly have associative duties to one another? The third asks whether granting associative duties this degree of gravity might entail troubling conclusions about what ordinary people can do to protect our associates outside of war.
It seems clear that the more liable our associates, the weaker our duties to protect them. Suppose A can defend his associate B from a threat posed by C, which is in response to a threat B posed to C's life. If B is at fault for the threat she poses, then A's duties to protect her are much weakened, and certainly cannot override his duties not to harm C. Notice, though, that B's liability does not obviate all A's duties to protect her. If he could save B without C being harmed, A will have a duty to protect B. Suppose he can interpose his body between B and C, taking the force of C's blow. For some magnitudes of resultant harm, and some relationships, A will have an associative duty to B to bear that harm to protect her, but no general duty to do so because his general duties to protect others are less stringent.
It seems unlikely that we have duties to protect associates from harms they deserve to suffer. Suppose B has murdered someone, and has fled the police. She comes to A seeking shelter. Though A might want to protect her from the threat of capture, he surely has no morally grounded reason to do so. B deserves to be caught and punished, and any duties A has to protect her are defeated by that fact. That noted, although he has no duty to protect her from deserved threats, he perhaps cannot be required to be the agent of retribution. Unless, of course, he has other reasons to be that agent. In Bruce Springsteen's ‘Highway Patrolman’ (from the album Nebraska) a police officer, Joe Roberts, allows his brother Frankie to escape to Canada after a fight in which he murdered another man.3 This seems an understandable but unjustifiable exaggeration of associativist reasons. Frankie deserves to be caught, tried and punished, so Joe has no duty to protect him and, given his occupation, Joe may not recuse himself in this way. Were he not a police officer, however, I think he would be permitted to connive at his brother's escape.
Our duties to protect our associates from harms to which they are liable cannot weigh to any significant degree against our general duties. These are important constraints on the role of associative duties in morality, but do not undermine the associativist account of killing in war – provided that we combine it with a particular view of what grounds liability to be killed. Theories of liability typically argue that an individual must have made some sort of contribution to an unjustified threat to be liable to be killed, when that is a necessary and proportionate means to avert the threat. On low-threshold views of liability, many combatants and noncombatants in war (at least on the unjustified side, if there is only one) will be liable to be killed. On the high-threshold view – which I affirm – almost all noncombatants will not be liable to be killed, nor will a significant proportion of combatants. It follows that at least some of the associative duties owed by comrades-in-arms to protect one another, and almost all the associative duties owed by noncombatants to protect one another, will be owed to people who are not liable to be killed.
The second worry derives from the possibility that people committed to deeply evil activities might develop deep relationships with one another. A powerful example is reserve police battalion 101, called up during the Second World War by the Nazis, and tasked with exterminating Polish Jews (Browning, 2001). Members of this battalion reported strong feelings of loyalty to one another, which in part motivated their participation in the atrocities. Does the associativist account open the door to this sort of deeply objectionable reasoning?
The first response is that reasons of loyalty were in these cases clearly being abused. Members of battalion 101 were not protecting one another against a threat: their victims were unarmed men, women and children. An appeal to associative duties is as specious as is one to self-defence. Second, they were liable to whatever threats they did face, and indeed probably deserved them. One cannot nonculpably engage in genocide. Thus any associative duties they might have had to one another would have been either defeated or seriously weakened.
A third response more directly questions whether relationships that are predicated on doing evil to outsiders can really generate associative duties. If the relationship's internal qualities were developed through the knowing infliction of wrongful suffering, then any capacity that relationship would otherwise have had to generate strong moral reasons may well be defeated (for a similar argument, see Hurka, 1997). Suppose the members of reserve police battalion 101 went through a lot together, as they murdered thousands of Polish Jews. Perhaps they risked their lives to protect each other against the few people among their victims who still posed a threat. Any property of the relationship deriving from the knowing infliction of such egregiously wrongful suffering loses any potential reason-giving capacity.
The associativist account starts with the belief that neither Walzer nor his critics can justify fighting in wars where we must intentionally kill non-liable people. Since it endorses the high-threshold view of liability to be killed, it asserts that in all likely wars victory depends on intentionally violating some people's rights to life, so we need additional moral reasons to override those rights violations, some of which we can find in associativist morality. In that sense, it offers a perspective on the morality of war different from both Walzerian symmetrists and anti-Walzerian asymmetrists.
For Walzer, soldiers need not ask themselves whether fighting is justified. They know that if they adhere to the standards for just conduct in war, they will fight justly, without violating rights. Thus it is always permissible to participate in wars. For Walzer's critics, this view is both pernicious and inane. As Christopher Kutz puts it: ‘if death and destruction matter morally, as they do, and if reasons matter morally, as they do, then differences in combatants' reasons for bringing about death and destruction must also matter morally’ (2008: 44). The associativist account agrees: soldiers may fight only if they have very strong reasons for doing so. If they do not have sufficient reason to fight and kill, then they are acting unjustifiably, even if they adhere to the in bello code.
However, the associativist account joins Walzer in affirming that combatants on both sides of a war can, in some cases, fight justifiably. Most importantly, it explains how combatants-J can justifiably fight, even though doing so inevitably involves violating rights. Since the primary goal of any theory of the ethics of war that denies pacifism should be to show that soldiers on at least one side in at least some wars can fight justifiably, this is the headline result.
But the associativist account can also give combatants-U reason to fight and kill, insofar as they are performing their own associative duties to protect their comrades-in-arms from wrongful harms, and acting on behalf of a community whose members have duties to protect their associates from wrongful harms (i.e., those that the victim is not liable to suffer). Of course, sometimes the best way for combatants-U to protect their associates will be to surrender. I do not mean to exaggerate the justificatory force of the associativist account, or the merits of warfare as a means of protecting those we care about. Moreover, combatants-U clearly face a heavy burden of justification, insofar as their fighting contributes to their side's achieving its unjustified goals – this will probably mean that associative duties could only justify genuinely defensive operations, for example. Nonetheless, contra Walzer's critics, combatants-U can sometimes be justified in fighting, and on much the same grounds as combatants-J.
The final worry is that the associativist account will justify egregiously wrongful partiality outside of war. For example, suppose A's associate, B, is dying from organ failure, and the only way to save her is to kill C and transplant his organs. If duties to protect our associates can override general negative duties not to kill innocent people, then why should A's duty to protect B not override his duty not to harm C? Indeed, given the argument about institutionalization advanced in the last section, couldn't we argue that we are justified, as a society, in setting up institutions where doctors routinely harvest organs from some, so that we can perform our associative duties to protect our loved ones from organ failure?
Such an outrageous conclusion neither follows from the associativist account, nor is even plausibly licensed by it. Killing C to transplant his organs is an egregiously wrongful form of killing, and A's duty to protect B does not override his duty not to kill C in this way. Killing C is opportunistic, he is clearly not liable to be killed, he is vulnerable and defenceless, and harming him in no way reflects his choices. Since A would not be permitted to kill C in this way to save B, there are no grounds for applying the reasoning of this chapter to justify institutionalized organ-harvesting or other similarly counterintuitive schemes.
The associativist account is not a complete theory of the morality of war. In particular, it cannot justify the resort to war in defence against political aggression, and it cannot justify the intentional, opportunistic killing of non-liable people that warfare inevitably involves. It also depends for its plausibility on giving an independent account of the limits on permissible killing in war, in particular the prohibition on targeting noncombatants. I discuss those in detail in Lazar (2015). However, it can justify some of the intentional killing in war. The foregoing discussion is intended to dispel the instinctive rejection of the associativist account by philosophers who are predictably sceptical about the deployment of reasons of loyalty in moral theory. It has offered grounds for those duties and has argued, against the philosophical orthodoxy, that associative duties can override serious general negative duties, both in peacetime and in war. It has also shown that conceding this point does not mean allowing a tribalist anti-egalitarianism to run amok through morality. It is quite possible to concede the force of associative duties in war, while still restraining their impact, both in war and in ordinary life.4