Monday, October 22, 2012

The Just War Philosophy

By Patrick M. Domery
Patrick Domery is a third-year law student at Albany Law School.  Writing about philosophy was a return to old habits for Patrick, who graduated from Boston University in 2009, where he majored in philosophy and mass communications with a concentration in advertising.  Patrick currently works for the New York State Education Department, and is an Associate Editor of the Albany Law Review.  
Patrick's essay is the first in a series on Just War prepared for the International Law of War & Crime Seminar, Fall 2012.

As a philosophical matter, the concept of “just war” is one possible framework for answering a simple question. Any inquiry into just war boils down to the essential question of ethics: What ought we do? In more nuanced terms, just war theorists seek to define the boundaries of when war should be waged, and by what means.[1] Just war discussions have been taken up by a who's-who of classical ethicists such as Aristotle, Cicero,[2] Augustine, and Aquinas.[3] The discussion continues today in the realm of law and international relations.

As one more recent philosophy writer puts it, “War is a brutal and ugly enterprise. Yet it remains central to human history and social change. These two facts together might seem paradoxical and inexplicable, or they might reveal deeply disturbing facets of the human character.”[4] As such, war has proven to be fertile ground for philosophers and legal scholars who seek to rationalize, justify and explain this apparent contradiction.

From this philosophical urge, three major theories have developed: Realism, passivism, and just war theory.[5] The easiest way, it seems, to explain just war theory is to set it apart from the former two theories.

Realists are skeptical of morality's role in international relations, whereas many just war theorists allow morality to play a role in the commencement and means of war.[6] Passivism refers to, in general, a staunch opposition to the “specific kind and degree of violence that war involves.”[7] Passivism can be based on moral objections, or even secular rationales such as utility or humanist conceptions of “wrongness.”[8]

Most pacifists, then, would find “just war” to be an oxymoron built on a supremely faulty assumption. Realists too would find fault with the assumptions of just war, specifically that justice plays a role in the conduct of war at all.[9] Because of its complexity and nuance, just war theory “occupies an especially large and influential space within the discourse.”[10]

Just war theory can be properly framed as a hybrid that accepts the assumption that wars actually can be just, yet allows for (and often depends on) morality in making such judgments.[11] As a result, just war theorists find themselves opposed on both sides for those same assumptions.[12] At this point, with respect to war, the “what ought we do?” question receives an unsatisfying answer: “war ought be conducted justly.” In unpacking that answer, just war theorists tend to disagree, often with shades of pacifism and realism underlying their arguments.

For purposes of background, it is important to note that just war theory is generally composed of three components: Jus ad bellum (the decision to conduct war), Jus in bello (conduct during the war), and Jus post bellum (conduct in ending the war).[13]

The criteria for jus ad bellum include just cause, right authority, right intentions, a reasonable belief in success, and war as a last resort.[14] While these criteria are generally accepted by just war theorists, the question of how to define these concepts not as easily answered. Just war theorists often look to pacifism and realism to fill in those gaps.

The Augustinian conception of just war, recently discussed by Jean Bethke Elshtain, is grounded on Augustine's theory of a naturalistic morality.[15] That is, a moral code embedded in human nature. Within the natural morality, Augustine places concepts such as justice and charity.

As applied to war, Elshain writes, “just war, then, is driven by a call to justice that is embedded in an account of our nature, created and fallen. The aim is to repair that which has been torn asunder by prior violence and to protect a community for which one has responsibility.”[16]

Naturally, appeals to Christianity as a basis for morality is unappealing to secularists and non-Christians, but Elshtain argues that Augustine's Christian ethics have in fact been integrated into international laws and treaties, which perhaps mitigates the problematic connotations of religious ethics as a background for international policy.[17] Furthermore, Elshtain argues that these principals, though Christian in origin, are equally applicable to secular justice.[18]

A more secular view of just war theory, discussed by Joseph Sweeney, takes the normative position that wars conducted in accordance with agreed-upon rules are just.[19] That is, a just war is a war that follows the Charter of the United Nations and other international treaties.[20] Sweeney traces his argument through history, beginning with Thomas Aquinas' view that just wars are fought for just causes.[21]

As time passed, Sweeney points out that formal declarations of war became an early international relations tool for ensuring that wars are conducted for just cause.[22] In the early 20th century, peace treaties began to incorporate the declaration requirement as a way of applying laws to combatants and non-combatants alike.[23] But, after World War II, the need for formal declaration became as outmoded as the medieval philosophers' ideas.[24]

To that end, Sweeney suggests that the United Nations has become the body that decides when war is just.[25] He states unequivocally that the criteria of just war in the 21st century are the “use of force as directed by the [United Nations] Security Council – or use of military force in self defense against an armed attack.”[26] Therefore, the jus ad bellum and just in bello are solely dictated by the international agreements of the United Nations.

If Sweeney's view is a more realist interpretation of just war theory, that laws are more important than morality in determining justice in war, than a passivist counterpart would say that the only allowable justification of war is self-defense. John Coverdale argues that just cause has been supplanted, and self-defense is the only acceptable criteria for war.[27] However, Coverdale concludes that there is no universal answer to whether a given war is just or unjust.[28]

As has been shown, just war theory occupies a middle space between realism and passivism, both intertwined with and opposed to those two theories. Just war theorists, influenced largely by classical and medieval philosophers, agree on certain established criteria of just war, but the definitions of those criteria are subject to interpretation.

In their attempts to elucidate what constitutes what exactly a just war is, theorists tend to branch off towards passivism and realism. The main contention is the role morality plays in assessing just wars, which just war theorists must account for by either incorporating morality or bracketing it altogether.
[1] John F. Coverdale, An Introduction to the Just War Tradition, 16 Pace Int'l L. Rev. 221, 223 (2004).

[2] Brian Orend, War, The Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2008), available at (describing Cicero and Aristotle as founders of the just war tradition).

[3] Coverdale, supra note 1, at 225—6.

[4] Orend, supra note 2.

[5] Id.

[6] Coverdale, supra note 1, at 223.

[7] Orend, supra note 2.

[8] Id.

[9] Coverdale, supra note 1, at 223.

[10] Orend, supra note 2.

[11] Coverdale, supra note 1, at 223.

[12] Id.

[13] Orend, supra note 2.

[14] Jean Bethke Elshtain, The Just War Tradition and Natural Law, 28 Fordham Int'l L.J. 742, 751 (2005).

[15] Id. at 745.

[16] Id. at 751.

[17] Id. at 753.

[18] Id. (describing Hugo Grotius as essential in transitioning from a theological to a normative basis to just war theory).

[19] Joseph C. Sweeney, The Just War Ethic in International Law, 27 Fordham Int'l L.J. 1865 (2004).

[20] Id. at 1878.

[21] Id. at 1869.

[22] Id. at 1874.

[23] Id. at 1876.

[24] Id.

[25] Id. at 1877—8.

[26] Id. at 1878.

[27] Coverdale, supra note 1, at 233—6.

[28] Id. at 277.