10 Nov In Honor of the 35th Anniversary of Michael Walzer’s Just and Unjust Wars
I’m at Penn Station, waiting for the train from New York City back to DC, happy but slightly dazed after an intense three day conference in celebration of the 35th anniversary of Michael Walzer’s Just and Unjust Wars. My thanks and congratulations to Gabby Blum, Ian Scobbie, and Joe Weiler for organizing it, and to NYU for hosting it. I was humbled to be in the presence of so many great intellectuals, not just in law, but in moral philosophy – Professor Walzer himself, Jean Elshtain, Thomas Nagel, and others.
Three intense days, with Professor Walzer offering a few short comments at the end. I think it is okay to paraphrase them from my notes. His final comments go to a running theme of the meeting – the distinction, and its persistence or not, of a moral and legal independence of jus in bello from jus ad bellum. He says that even though a defender of their independence, they come together in the following crucial and urgent moral way. (This is a paraphrase, not a direct quote, and should not be quoted as something directly said by Professor Walzer):
The worry is that if you fight in accordance with the legal regimes of international law, you can’t win. That is a major challenge, and I was very happy that General [Charles] Dunlap denies that and says you can. Still, it is a worry. It must be possible for the good guys to win within the rules, at least as a possibility, but also as a real possibility. That’s where ad bellum and in bello come together: to win a just war fighting justly.
But suppose it isn’t possible. That’s what moral philosophers partly do – worry. What follows if it is not possible, or not a real possibility? What then? Well, the rules would have to be changed. We would have to reconsider the content of the rules jus in bello if we could not live within jus in bello and still have the just side win on the battlefield.
ps. One general observation about the tenor of Professor Walzer’s (paraphrased) remark here. Just and Unjust Wars is taken in the United States academic and human rights advocacy community as the manifesto of the introduction of individual human rights in war. In part that is right. But it is correct in the sense of rejecting “realism,” in the amoral Hobbesian “by a necessity of nature” sense, on the one hand – but not thereby embracing a genuinely full Christian view of just war as an expression of immanent natural law, on the other hand. If the meta-theory underlying Walzer’s normative ethics of war is one of making it secular and an expression of modernity, then it does so by giving up the immanent ground of God’s natural law. In the full Christian just war ethics, justice is the key concept, because it is an expression of the love of God for all his children, and not the far narrower and circumscribed (mere) notion of rights, the obligations which we owe to one another because man is the measure of all things.
Rights gives up the fully foundational, fully immanent understanding of justice of Christian just war ethics – not in favor of relativism as to right and wrong in war, but in favor of something that seeks moral grounding and judgment in fact – and yet still vastly more contextual, contingent, and human than a fully realized theory of justice in war would offer. We see through a glass darkly, etc. – and, alas, that’s all we ever hope to do. And yet practical wisdom requires, as Walzer emphasizes in the opening chapters to Just and Unjust Wars, that we make moral judgments as best we can. But that is a long ways, I at least would suggest, from the way in which the rights theory of war has taken Walzer’s work in its long elaboration in politics and institutions. Walzer’s remarks above point to something that I, at least, would see as a theme strongly present in Walzer’s opening chapters in Just and Unjust Wars – viz., rights in the service of a moderate moral realism. It is not a theory of rights in war that is opposed in some way to moral realism, but that, I believe, is how Walzer’s theory has been deployed in the decades since the book’s publication in 1977.
(In my further view, of course, the millennial dream of what international criminal law is supposed to do is essentially the reintroduction of full immanence to the ethics of war by the backdoor means of courts whose promise will be fulfilled, but always at some moment forward, in the fullness of time. Time as the universal solvent of all things, a sort of creeping immanence.)
The instinctive, reflexive response of perhaps the majority of my generation would be to say that there can never be such a thing as a “just side.” They would probably agree to describing certain manners of entrance (rather than grounds for entrance) as just or unjust. An attacked state, for example, might to them have the virtue of victimhood in its manner of entrance to a war, but they will not undertake to judge per se any casus belli. And to call one side categorically the “just side” ! – let alone to imply it might be your own – from that they recoil. It is a mark of unsophistication to speak thus. If Professor Walzer actually uses those terms, I’d be interested to know how many of his students consider him a fossil. Not for the first time do I wonder at the gulf in sensibilities between generations. I have heard aging liberal American senators, with all their reticence to employ military power, speaking offhandedly in committee or unprepared before the press in a manner that reveals an underlying belief in the general justness of American causes – yes, even in war. If they consider themselves the guardians of national virtue, then inherent in… Read more »
Nathan, you know generally whence I come in these issues; but here I think you are too hard on your fellows. You perhaps more accurately describe us professors, but I am struck, myself, by how relatively unembarrassed by straight-up patriotism I find among my students, both conservative and liberal and, more typically, somewhere in between. Part of this, in my sector of the student body, is the return of vets to school; many of them come back to law school at my kind of institution: a midtier school in DC where many of them have already worked. I have in my current classes at least five vets that I know of. These combat vets are not naive about patriotism, war, the meaning of service, and their unembarrassed, realistic pride in their country is an increasingly useful addition to student populations around the country. It’s not because they are conservative or liberal – many of them are liberal, believers in expansive government programs, and I think that they will gradually transform the Democratic Party by giving it a broader base of Democratic veterans who are nonetheless liberals. I think these folks in both parties are the rising leadership class, and not… Read more »
Thanks Ken. I’m glad to hear it. I suppose my experience may be unrepresentative: I was in an English department.
These arguments are deeply flawed, since they violate one of the most fundamental rules of law, that nobody should be judge in her own conflicts. The legality of a war cannot be challenged at any international court. Neither the attacked state, nor its citizens could go to an international court, sue the US (of other powerful attacking nations), and if the war is illegal, could coerce the U.S. do whatever the court decides. And the fact that this is not possible is not just a fact of international law, but it is something the U.S. actively promotes. Thus, whatever U.S. says goes. And the war is just or unjust according to its dictates. Of course nobody in the rest of the world buys this, but for the U.S. does not seem strange to decide itself whether a war is just or unjust. The same is the case for the rules jus in bello. In fact nothing changed since the Spanish decided that international law gave them the freedom to do whatever they wanted to the Indians.