Legality Is Not Morality

by Kevin Jon Heller

The most common reaction to my post on Newtown and the drone program has been to point out that there is a difference between killing in peacetime and killing during war — that we are both legally and morally more willing to accept the loss of innocent life in the latter, even if the loss in both can be considered intentional.  Peter Stockburger and Ian Henderson offered versions of that point in the comments to my post, and the point also featured prominently an eloquent post that Ben Wittes wrote in response.  Here are Ben’s key paragraphs:

I mean merely to highlight here how one’s views of this subject will inflect one’s views of the moral dimensions of the accidental killing of children. If, like me, one is inclined to see drone strikes as an instrument of legitimate warfare—warfare authorized domestically by Congress and lawful under international law—one will tend to see the deaths of children they sometimes cause as accidental deaths in the course of legal and appropriate military action. Such deaths are tragic always. But we have centuries of moral vocabulary for such things. War is a terrible business, and one of the reasons for that it is that civilians who have done nothing wrong get killed; indeed, warfare by its nature turns what would otherwise be murder into a legal and protected act. And while the modern laws of war do require all sorts of efforts to protect civilians from harm, they also accept that these efforts will not always succeed. That rather moots all of Kevin’s fine-grained gradations of intentionality. The relevant question becomes whether one took adequate steps to distinguish civilians and to minimize civilian casualties–not ultimately whether those steps worked.

By contrast, if—with Greenwald and, in a more complicated way, Kevin—one is inclined to reject the legal paradigm of warfare for some or all overseas counterterrorism operations, the entire moral (and legal) calculus shifts dramatically. Then the deaths of children in drone strikes become the collateral consequences of illegal and immoral acts that are themselves extrajudicial killings. In such a framework, the underlying act, a strike on a presumably-terrorist target, is no longer exempt from the normal legal or moral strictures against killing; it is a murder of its own. And it’s hardly a defense (legally or morally) to the accusation of killing a child that his death was an accident in the course of murdering the adult next door.

There is much that I agree with in these paragraphs. I certainly agree with the idea that we cannot simply compare killing in war and killing during peace.  I also obviously invited Ben’s focus on the legality of collateral killing during war by relying on criminal law to make the point that many national criminal-justice systems would consider the death of innocents in drone strikes to be intentional.  Finally, Ben is absolutely correct to point out that how one views such collateral deaths is necessarily affected by one’s assessment of the legality of the drone program.

All that acknowledged, I still want to resist an idea that seems to underly all of the responses to my post: namely, that we cannot (or at least should not) consider collateral deaths caused by drone strikes to be immoral as long as those strikes were legal.  I strongly disagree with that idea; I think it is possible — indeed important — to insist that the drone program is profoundly immoral even if no individual drone strike ever violates the laws of war.  There is a vast philosophic literature on the difference between legality and morality, which I do not have time to discuss here.  (Where is Patrick O’Donnell, aka The Man Who Has Read and Understood Everything, when you need him?) Suffice it to say that very few people are such thoroughgoing positivists that they believe legality and morality are coterminous, even if they disagree dramatically with each other concerning the particulars of the difference. Two obvious examples: “pro-lifers” don’t consider abortion to be moral even though it is legal, while the pro-euthanasia crowd doesn’t consider assisted suicide to be immoral simply because it is almost always illegal.  Both groups simply reject the morality of the laws in question.

In one sense, that is my perspective on the collateral deaths caused by drone strikes. Although I do not believe that all drone strikes comply with the laws of war, for the reasons I discuss in my forthcoming article, I am certainly more legally sympathetic to the drone program than most of my fellow lefties/progressives.  In particular, I am extremely skeptical of the oft-heard claim that drone strikes violate IHL’s principle of proportionality.  As I have explained elsewhere, the principle of proportionality — to say nothing of the war crime that is based on it — is so amorphous and commander-friendly that it is essentially useless. Yet I still think that many, if not most, of the legally-proportionate collateral deaths caused by drone strikes are profoundly immoral.

My position would not change, though, even if I was more comfortable with the legal definition of proportionality.  Accepting the morality of a particular law does not commit one to accepting the morality of any and all actions that comply with that law.  Someone who is pro-choice can still morally condemn the wealthy family who uses abortion as a form of birth control.  Similarly, someone who supports euthanasia can still morally condemn a person who talks an ill elderly relative into it because he wants his inheritance sooner rather than later.

That, essentially, is how I feel about drone strikes.  I do think that the principle of proportionality is too accepting of military force.  But my basic objection to the collateral deaths caused by drone strikes is that those deaths are nearly always unnecessary, because the drone program itself lacks any persuasive strategic justification.  In my view, the military benefits of drone strikes pale in comparison to their long-term costs — ranging from radicalizing the affected populations to encouraging the US to rely on military force instead of other methods for dealing with terrorism.  I thus believe that the drone program should be dramatically narrowed, if not eliminated completely.  As a result, I think it is nearly always morally indefensible for the US to continue to use drone strikes even though it knows that it is virtually certain innocent men, women, and children will die as a result.

It is in that spirit that I offered my previous post.  Collateral deaths in drone strikes are not accidents, even if they are not specifically desired.  They are simply accepted as the necessary if regrettable cost of fighting the war on terror.  That is intentional action as many countries understand the concept of intent.  And it is immoral action in my view, regardless of the legality of strikes under the laws of war, because the drone program itself is immoral.

http://opiniojuris.org/2012/12/31/legality-is-not-morality/

34 Responses

  1. I’m with ya, Kevin. Thanks for the great writing this year. How is 2013 so,far? I haven’t quite got there yet. 

  2. Possibly not a view shared by all my fellow lawyers, but as we move from legal questions to moral ones, we move from an area where the lawyer has a distinct role to one where perhaps it is better to ask the padre. Possessing legal qualifications makes one no better equipped to advise a commander on moral questions than the commander his or herself. 

  3. Ian,

    I agree — though even lawyers are entitled to their moral sensibilities, desiccated as they may be…

  4.  I dont think the reasons Kevin gives for thinking that the drone program is not moral involve moral consideration. To say that the program lacks ‘strategic justification’ is an instrumental justification regarding whether the program is effective means of bringing about desired consequences. If this is right, then, to make the point Kevin is making does not show that the drone program is immoral.

  5. In connection with my earlier point I think what should be emphasized is that the drone program is actually moral if it is legal, and this is so not because one is equating law with morality, but because the law in question which governs the issue regarding the drone program, is underwritten by Just War Doctrine which is a moral doctrine. 
    So, if the drone program passes muster from this twin point of view then the program has been shown to be morally vindicated and not just legally vindicated.
    Moreover, by comparison with Kevin Jon Heller’s s argument based on his claim  that the program is not moral because it is not ‘strategically justified ‘ ( which conflates morality with non moral considerations ) , the defender of the program has a stronger case because on his view the the program is both legally and morally justified plus of course the defender of the program is not relying on conflation of morality with non moral consideration unlike Kevin Jon Heller whose argument depends on the conflation.

  6. Zdenek seriously misrepresents my argument.  I did not claim that the drone program is immoral because it lacks strategic justification.  I claimed that the drone program is immoral because it causes the deaths of innocent people without countervailing strategic justification. If being concerned about needless and counterproductive killing is not a “moral consideration,” I have no idea what is.

    As an aside, if there is a just-war argument for the US drone program, I’d be very interested to hear it.

  7. Your objection to the use of drones seems to be that (a) the manner in which they are being used kills a lot of civilians, and therefore (b) radicalises communities subject to them, and also tends to (c) disincentive the states that use them from investing in more peaceable means of counter-terrorism and (d) – the crucial part – lacks any persuasive justification which would serve to counter-balance these drawbacks. Is that correct, more or less?

    My question then is whether this argument is specific to drone warfare, and if so, why?

  8. Ok, so what we have is two claims which are the basis of your position on the morality of the drone program. One is that drone program kills innocent people and the other claim is that such killing is not justified ( the killing has no countervailing justification and that is why the killing of non combatants is wrong ).

    Now this can be understood as a claim made within jus in bello context but then it is not clear why you think that such killing is not justified if it meets the jus in bello requirements of distinction and proportionality . You have conceded I think that these requirements are indeed met by the drone program and so the best way to construe your claim about morality is not as jus in bello issue, but rather a jus ad bellum issue .

    That is , we should take you to be saying that the program itself is not just because it involves killing of non combatants without due justification ; it is not just. However this way of thinking about the issue is not very helpful either because the point about killing innocents is easily shown to be a red herring from jus ad bellum point of view since the drone program is obviously understood, and understood plausibly, as a form of self defense against an ongoing threat by al Qaeda given AQ’s relentless series of attacks against American homeland ( the printer cartridge bombs, 2 underwear bombers et ). In other words there is a strong moral case that the drone program against alQaeda is justified because it is a genuine case of self defense. 

    So, even if we grant that the strategic aims of the program do not justify the killing of non combatants the program is justified, morally speaking, because it is based on morally legitimate taking of lives involving self defense. 
     
    The error in your argument seems to be thinking that there is only one type of moral justification possible and that if the drone program does not meet that desideratum ( viz justification you think is needed )  then it has to be morally flawed but that assumption is mistaken because there are other possible and plausible ways of justifying the program as I indicated.  
     

  9. Just-war argument ? 

    Just very quickly and schematically : the most important condition– you will agree– is just cause ( the other ones are rightful authority ,right intention , last resort ,proportionality and probability of success ) and the best example of this is self- defense.

    So, if you have been attacked you can defend yourself and use force that may kill non combatants ( provided this meets the jus in bello spects ) in self-defense.

    There is no doubt that US has been attacked, and therefore,  in the wake of the attack, there is no doubt that US can morally use force in self- defense. 

    That is to say, the drone program is morally legit even if it kills non combatants provided that it satisfies jus in bello requirement governing use of lethal force in combat .
     

  10. Zdenek:  Perhaps what Kevin is getting at is a jus ad bellum question, but not the simple question of whether there is just cause to attack al Qaeda.  He appears to be questioning whether the admittedly justified campaign of self-defense (not limited to drones, of course) satisfies the ad bellum requirements of proportionality and necessity.  And (here’s the interesting part), Kevin appears to be bringing the anticipated civilian casualties into account in assessing the questions of proportionality and necessity, even on the assumption that they are not disproportionate for jus in bello purposes.
    I’m not sure whether jus ad bellum law and/or just war theory typically considers such costs; but I don’t see why they shouldn’t.  Even if anticipated civilian casualties might not be excessive in relation to the  military advantage to be gained in each and every particular operation, isn’t it possible that in gross they would render an entire self-defense campaign — initiated with absolutely legitimate objectives — disproportionate and/or not necessary?  (Or is that impossible?  I can imagine an argument that if each and every operation in the campaign satisfies proportionality, of course they must also do so for ad belum purposes in the aggregate.  Anyone know if there’s law or scholarship on this question?)
    Of course, whether this or any other campaign is proportionate and necessary in an ad bellum sense depends heavily upon whether Kevin’s assumptions are correct that the threat could be just as (or more) effectively ameliorated through other means that do not run the risk of civilian casualties, something that I doubt any of us have the capacity to assess here.  (FWIW, I also suspect that Kevin is greatly overestimating the anticipated civilian casualties in at least some of these operations, and assuming what many would dispute, namely, that the use of drones increases rather than diminishes the risk to civilians vis-a-vis other methods of use of force.  But again, those are empirical assessments that are virtually impossible for us to make at this remove.)
     

  11. Kevin,

    While it may be true that I try to read everything, I of course fall far short of that goal, and what is worse, I certainly cannot be said to understand everything, indeed, the more I read the more I’m intimately apprised of the depth and extent of my ignorance.

    That said, and as I’m spread a little thin right now, I have little to say apart from the fact that I largely agree with what you’ve written here (especially the claim that ‘the principle of proportionality — to say nothing of the war crime that is based on it — is so amorphous and commander-friendly that it is essentially useless’) and that I hope to discuss some of these topics soon at Ratio Juris within the context of “realist” political views and terrorism which, as Ben Saul says, “commands disproportionate attention relative to the harm it causes,” a problem exacerbated by what he rightly describes as its “invidious moralization” (keeping in mind the important distinction between the aspiration to be ‘moral’ and the pejorative meaning of moralization). And I happen to think that a full legal appreciation of drone strikes as emblematic of “targeted killing” would demonstrate the fact that they rarely meet the requisite conditions and standards of legal justification (normative and procedural requirements), let alone, satisfy criteria regarding moral legitimacy. 

    It is a notable fact, I think, that many people have an intuitive or instinctive repulsion against State-sponsored targeted killing although we still need to spell out the specific reasons that might best account for such moral feelings, something Nils Melzer gestures toward at the conclusion of his book on targeted killing in international law.

    Finally, the continued resort to military euphemisms in these discussions remains telling: “collateral damage,” “surgical strikes,” etc. As C.A.J Coady has said of the former phrase, “many of the uses of the term…suggest both an excuse and a belittling,” and is often tantamount to moral (and moral psychological) blindness or evasion, to wit:

    “The world will no help us, we must help ourselves. We must kill as many of the Hamas and Islamic Jihad leaders as possible, as quickly as possible, while minimizing collateral damage, but not letting that damage stop us.*–“Enough,” Jerusalem Post editorial, September 11, 2003
     
    No doubt one could cite similar sentiments with regard to those targeted by the U.S. in Pakistan and elsewhere.

    In short, I think the argument can be made that we egregiously fail to accord proper moral priority or sufficient moral consideration to protecting the lives of noncombatants and innocents in targeted killings (again, I happen to think these are rarely even legally justified), a failure directly linked, as you appreciate, to the ill-conceived “war on terrorism.”

    *Hence the “collateral damage” in the targeted (not involving drones) killings of Sheik Salah Mustafa Muhammad Shehade (11 civilians) and Sheik Ahmed Ismail Yassin (7 bystanders) .

  12. Relevant to this discussion are some comments from David Luban’s piece last summer in the Boston Review about a NewYork Times article on the drone program:

    “The most troubling point in the Times article is that the CIA has apparently counted civilian casualties in a self-serving, dishonest way. Any dead military-age male in the vicinity of a targeted strike is presumed a ‘militant’ unless proven otherwise. That sounds wrong, and the more you think about it, the worse it gets.

    What would constitute proof that a dead young man is not a militant? And how diligently is the CIA looking for evidence of its own fatal mistakes? After all, this is the same CIA that is investigating itself for illicitly censoring its own critics because it doesn’t want knowledge of its misdeeds and mistakes to see the light of day.”

    “The opacity and unaccountability of the drone program are threats to the rule of law.”

    “…so much turns on the details: the expected collateral damage, how much care has been taken to verify the target and the danger he poses, whether the target was trying to surrender, whether the foreign state is truly unwilling or unable to suppress the target, what the non-lethal alternatives were. The wrong answer on any of these issues means the decision to kill from the air flunks the test of morality.”
     

  13. @Marty Lederman:”And (here’s the interesting part), Kevin appears to be bringing the anticipated civilian casualties into account in assessing the questions of proportionality and necessity, even on the assumption that they are not disproportionate for jus in bello purposes.

    Yes, that is interesting if a bit puzzling; I am not sure, though, how this can hold water because once you accept that the anticipated non combatant casualties are justified via distinction and proportionality ( morally justified note ) , as jus in bello requires, what you are left with, cannot in any way show that proportionality and necessity, as part of jus ad bellum requirements, are not met, since that is ruled out by their meeting the just in bello requirement .

    This would not follow only on the assumption that fulfilling jus in bello requirements is not relevant for the purposes of settling the question of necessity and proportionality.

    But that seems widely implausible, surely , because settling these questions requires that we know whether the deaths that follow are legitimately caused or not legitimately caused, from moral point of view, but that shows that jus in bello considerations are vital, rather than being irrelevant, as Kevin would seem to be arguing on your construal of his argument.
     
     

  14. What is legal may or may not be moral and vice versa.
    “The most common reaction to my post on Newtown and the drone program has been to point out that there is a difference between killing in peacetime and killing during war — that we are both legally and morally more willing to accept the loss of innocent life in the latter, even if the loss in both can be considered intentional.”
    I am not so sure.  Who is this royal “we”? 
    A parent of a soldier killed may not be “willing to accept” the loss of the soldier’s life who may consider that soldier blameless and in that sense their innocent child.  Put another way, the parent of the innocent child killed (in war or not) may not be “willing to accept” the loss of their innocent child.  I use “may not be” instead of “is not” to recognize the diversity of potential reactions of any parent to the death of their child.
    Is the royal “we” the state?  Or the servitors of the state?
    I am just not very comfortable with that royal “we” and what underlies it.  I suspect that if one deconstructs that “we” one finds a number of different points of view in that “we”. 
    Would appreciate help if those who agree with the above bolded phrase could articulate who is the “we” to which they are referring.
    Maybe one is saying that in war we  (the state’s servitors) are not willing to consider these losses of innocent children as crimes, or, even if crimes, we (the state’s servitors) are not willing to prosecute them and in that sense we give them legitimacy whatever the legality (in internal law or international law) or the morality (whatever the moral code – epistemology pops in my head but not sure if using it in the proper sense).  That says that the “we” are those with the power to exercise the state power.
    But in peacetime, there are plenty of innocent children who die and we (meaning the servitors of the state) are perfectly willing to allow that.  Just go through the communities of color in the United States and see the carnage that “we” are perfectly willing to accept without much question.  Only when it bleeds into communities like Newtown does that peacetime “we” get roused to some extent.
    So would suggest one watches who is in one’s “we” because I am sensing that your “we” may not include “me” meaning any person who is considered”other” by the society that is asserting the “we.” And that “other” might include the foreigner.
    Hope that is clear enough.
    Best,
    Ben

  15. Sent a more erudite comment that seems to have been lost in the ether.  Was responding to this bolded phrase from above. 
    The most common reaction to my post on Newtown and the drone program has been to point out that there is a difference between killing in peacetime and killing during war — that we are both legally and morally more willing to accept the loss of innocent life in the latter, even if the loss in both can be considered intentional.  (italics and underlining added by me)
    The question is with the “we” – who is that “we”?
    Reminds me of the Lone Ranger joke when he said to Tonto, “We are surrounded by Indians.” And Tonto said, “What you mean “we” kemosabay?”
    If you can find the post in the ether would be grateful if you would put it up.  No time to repeat it.
    Best,
    Ben

  16. THe “we” was supposed to be underlined AND in italics but does not appear to have come through that way.  Whatever.
    Best,
    Ben

  17. re Luban argument.

    You will notice that Luban is discussing jus in bello issues in the part of his discussion to which Patrick S. O’Donnell is referring to. In that part of his piece Luban is arguing that drone program may not meet the discrimination criterion in particular. 

    But it is clear that he accepts that the drone program is legitimate from jus ad bellum point of view  because he says that it constitutes legitimate self defense and hence that the program is moral .

    He says :
    There is a strong case that US drone campaign …is genuine self defense…” ( p13 para 3 ) 

    Luban then disagrees with Kevin about the morality of the drone program.

  18. ‘Tis true that Luban disagrees with Kevin (and me, for that matter) in general (with regard to jus ad bellum), which is why I did not cite that part of the piece!  

  19. On the distinction between law and morality.

    First thing to notice is that just war doctrine is a moral doctrine which has both consequentialist and deontological components and so it is fairly rich, and to the extent that it does provide an underpinning ( whatever this means )  for laws of war, it carries fair amount of weight ;certainly more so than appeals to untheorised ‘moral intuitions’ Kevin is basing his argument on.

    There is also a worry on a more general note  : If one has to, for some reason,  distinguish between legal and moral considerations, it is worthwhile bearing in mind that it is not obvious that morality provides the sought after justification for legal principles because morality is not something on which there is a sufficient agreement, and all so called moral principles are to large extent a matter of serious , widespread and continuous disagreement. Some philosophers defend consequentialism others virtue approach and many some version of deontological account. 

    There is even more serious disagreement about meta-ethical questions which deal with issues regarding the nature of moral truth , semantics and moral psychology and once again there is no agreement as to what the appropriate way of thinking about morality. 

    No one really has any idea what normativity or ‘obligatoriness’ of moral norms consists in . 

    The point is, in the light of this, it is highly questionable that one is doing anything of any intellectual worth, by trying to justify,or undermine for that matter, some legal principle by invoking the distinction between law and morality.

    This would in particular apply to Kevin’s move which involves an appeal to just such an alleged moral intuition or moral principle which is supposed to show that the drone program is not morally justified.

    If what I was saying about the questionable status of morality as a source of justification is correct then Kevin’s move must be of questionable value. 

  20. Marty, I follow your point about proportionality in ad bellum and in bello, but your short post omits the fact that proportionality in ad bellum includes more than just civilian casualties. So, as a minimum, it would be possible to have in bello proportionality but be ad bellum disproportional as different factors are counted for the purposes of the ad bellum assessment.

  21. “The point is, in the light of this, it is highly questionable that one is doing anything of any intellectual worth, by trying to justify,or undermine for that matter, some legal principle by invoking the distinction between law and morality.”
    Agreed Zdenek but given your reference to the just war theory as a moral doctrine I understand that you are recognizing to some extent a moral underpinning gives legitimacy to law to those who hold to that moral doctrine.  Similarly, a lack of a given moral doctrine underpinning reduces legitimacy of the law to those holding that given moral doctrine.  Both of these points seem self-evident in what you are writing but wanted to make sure I was understanding you correctly. 
    If I do understand you correctly on these points as well as your indeterminacy of moral norms point then it would seem we might go one step further. 
    There might be deep and wide streams of recognized moral thought (as opposed to moral intuitions) and consensus on a specific legal rule that wide streams of recognized moral thought subscribe to and give legitimacy. 
    I think, on the one hand, of the US National Religious Campaign Against Torture which expresses its opposition to torture (and other forms of cruel, inhuman and degrading treatment or punishment) in primarily moral terms as a manifestation of that moral dimension behind the prohibition against torture. 
    On the other hand, I see the universal aceptance by states of the prohibition on torture as a legal rule of positive law. 
    The intersection may be seen when states try to redefine that legal rule in a way that seems to take out the legal power of that prohibition as a means of protection of the indivdual against violence by the state AND also circumvents the moral force underpinning that prohibition.
    In this sense, stating the obvious to you no doubt, legal rules may or may not be moral and moral rules may or may not be legal.  I am not going to Kelsen, Kant, or Augustine on this nor Marx for that matter.
    In the present case, the moral opprobrium for killing innocent children that “we” may have seems a bit more complicated than what I have read here. 
    On this, I refer back to something in Kevin’s original post, to wit:
    The most common reaction to my post on Newtown and the drone program has been to point out that there is a difference between killing in peacetime and killing during war — that we are both legally and morally more willing to accept the loss of innocent life in the latter, even if the loss in both can be considered intentional.
    In my earlier post on “we” that disappeared, I pointed out the large number of peacetime killings of children in the United States in communities of color that are simply not sources of moral opprobrium or angst of the kind that has been sparked by Newtown (or Columbine or Augusta). 
    It has always been so in the United States though the direction of that has obviously been somewhat more toward concern than it was in the time of slavery or, for that matter, segregation.
    Objectively one would conclude that American society (one “we”)  is perfectly happy (or at least “willing to accept”) to have those innocent children die in peacetime, as a legal and/or moral matter – whether in private violence or in state sanctioned violence.  “We” are even willing to accept that those children be harassed at enormous levels in cities such as New York to the point where it was estimated there were more stops of these children by police in New York then children in that cohort.
    As to war time deaths of innocent children, war does suggest a fundamental difference which is in the level of lethality of the violent machinery put into place.  Put another way, we may kill more innocent children at one fell swoop in a war setting.
    It is the combination of intentionality and higher lethality in war that raises the risk of more innocent children being killed at any one fell swoop in a war setting.  “We” are willing to accept this under the laws of war.
    When the numbers of innocent children dying in peacetime or in war reach some level, even if all done ostensibly in compliance with the legal rule, the moral doctrine supposedly underpinning that legal rule does cause us to question the rationalization of those innocent deaths that is made by the actor causing those deaths. That questioning includes the questioning of the state when it is the motor for those killings of innocent children.
    It may be the sensing of that contradiction between the fact of the deaths of the innocent children, the legal rule even with its vagaries, and some mainstream moral doctrine with its own vagaries that prompts that questioning.  And that questioning leads to the qualms and then the challenging of what “we” are “willing to accept” in peacetime or wartime.
    Also, “innocent children” as a term raises a problem for me in terms of distinctions being made between groups of children.  Part of this is the child soldier discussions but just want to raise that point as children in peacetime or war that are killed are (moral value implicit that I hope is not seen as too indeterminate to make) a terrible loss to their parents and communities whatever innocence we wish to ascribe to them.  Part of this may be due to the intuition we have had that neuroscience is confirming as to the lack of completeness (I believe that is the term) of the human brain until around 26 or so.
    Hope this goes up and is not lost also.
    Best,
    Ben

  22. Marty,
    See also para. 526 of the ICTY trial chamber judgment in Kupreškić et al. (IT-95-16) ”Lašva Valley”
    “As an example of the way in which the Martens clause may be utilised, regard might be had to considerations such as the cumulative effect of attacks on military objectives causing incidental damage to civilians. In other words, it may happen that single attacks on military objectives causing incidental damage to civilians, although they may raise doubts as to their lawfulness, nevertheless do not appear on their face to fall foul per se of the loose prescriptions of Articles 57 and 58 (or of the corresponding customary rules). However, in case of repeated attacks, all or most of them falling within the grey area between indisputable legality and unlawfulness, it might be warranted to conclude that the cumulative effect of such acts entails that they may not be in keeping with international law. Indeed, this pattern of military conduct may turn out to jeopardise excessively the lives and assets of civilians, contrary to the demands of humanity.”
    http://www.icty.org/x/cases/kupreskic/tjug/en/kup-tj000114e.pdf

  23. Re: “it is worthwhile bearing in mind that it is not obvious that morality provides the sought after justification for legal principles because morality is not something on which there is a sufficient agreement, and all so called moral principles are to large extent a matter of serious, widespread and continuous disagreement. Some philosophers defend consequentialism others virtue approach and many some version of deontological account.” 

    “No one really has any idea what normativity or ‘obligatoriness’ of moral norms consists in.”

    This strikes me as deeply mistaken, although keeping in mind that what “is not obvious” may be no less true, and that truth may be only understood and fully appreciated in some quarters. First, we should consider the fact that philosophers from Plato to Kant, as well of course the natural law tradition, have helped us understand how basic moral intuitions, insights, principles, sentiments, and values are intrinsic to the very notion of law itself (For a recent treatment of some note, see Nigel Simmond’s Law as a Moral Idea, 2007). Many of the disagreements revolve around particular principles, as well as their scope and precise application, for example, not the role of principles as such. Notions of, and principles directly or indirectly derived from, concepts and conceptions of equality, freedom, responsibility, obligation, harm, blame, reciprocity, fairness, desert, trust, well-being, and even specific virtues, as well as one or another kind of justice: for example, commutative (also ‘rectificatory’ or ‘corrective’), retributive, restorative or reparative, transitional, local, intergenerational, procedural, political, constitutional, ethical, economic, and perhaps even theological or metaphysical justice, routinely serve as moral presuppostions, assumptions, axioms, or premises in most if not all areas of the law: private (e.g., property, tort, contract), international law, criminal law, etc. The barest familiarity with philosophy of law and legal theory will convince one that there is much agreement on this score, indeed, the disagreements and differences are usually predicated upon much background agreement.
     
    Although the specific warrant or justification for jus cogens and obligations erga omnes in international law is contested, for instance, there is sufficient agreement for these to be legal norms based on intrinsic notions of moral normativity and obligatoriness that appear to be fairly well understood by the relevant parties (i.e., they have sufficient meaning to be employed in concrete legal settings and cases). An exemplification of the normativity and obligatoriness of moral norms is readily found, for instance, in tort law, as in the concept of “obligation of repair,” or in contract law, with the role of promising (yes, I know, sometimes that role is exaggerated or insignificant, but it is no less present for all that). Notions of normativity and obligatoriness appear to me to be fairly well understood generally in international humanitarian and human rights law, indeed, this is what gives these legal fields their relative autonomy, coherence, and integrity. And while there are of course differences between the normative domains of law and morality, they often overlap and reinforce each other: it’s not a trivial observation that both legal and moral reasoning, however distinct, are forms of “reasoning.”
     
    While it may be true that few people, lawyers or otherwise, may not have the philosopher’s grasp of what moral “normativity” or “obligatoriness” consists of, they possess an understanding sufficient enough to rely on these notions both in everyday life and in the various domains of law. The law depends upon and often invokes moral principles and values from several ethical “isms,” although if may be rarely concerned, for better and worse, with the precise questions of consistency, contradictions, or dilemmas that arise from the abstract and argumentative comparison and contrast found in philosopher’s seminar, the spirited and often agonistic formulation of these differences in the profession not at all indicative of what is taking place in jurisprudence, even if these debates and discussions have trickle-down and spilloever effects among legal theorists and philosopher of law (rhetorical analysis is of some help on this score). So much more might be said along these lines, but as this is just a blog and just a blog comment….
     
     
     
     

  24. Neither obviously true nor truly obvious.  But always of interest Patrick.
    Sometimes the lights all shining on me, other times I can barely see, lately it occurs to me, what a long strange trip it’s been – J. Garcia
    Best,
    Ben

  25. errata: “The law depends upon and often invokes moral principles and values from several ethical “isms,” although it may be rarely concerned….” “…even if these debates and discussions have trickle-down and spillover effects among legal theorists and philosopher of law (rhetorical analysis is of some help on this score). ”

    Incidentally, I attempted to address some of the ways in which morality or a moral understanding is essential to “our” concept (or conceptions) of law in a response to a paper by Thom Brooks here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1804641 The paper originated in a blog post (!), so it will one day be filled out with more care and in more detail.

    Perhaps needless to say, our moral critiques of existing law do, over time, have an impact, as any historical examination of the law will testify. Of course that does not mean that law is meant to wholly subserve purely moral purposes or that what moral purposes or intent do in fact animate many legal theories, principles, doctrines, or actual laws will be acknowledged, let alone observed, if only because the gap between what “is” and what “ought to be” is stubborn and not easily bridgeable, indeed, in some respects it may be the necessary condition of moral ideals that inspire and inform both our moral and legal principles and practices.  

    Ben, we must be around the same age!

  26. @Patrick S.ODonnell
    ” Although the specific warrant or justification for jus cogens and obligationserga omnes in international law is contested, for instance, there is sufficient agreement for these to be legal norms based on intrinsic notions of moral normativity and obligatoriness that appear to be fairly well understood by the relevant parties”

    I cannot agree here. There most certainly is no account of what normativity consists in which is agreed on by most philosophers. What you will find is unsuccessful attempts to provide theoretical pictures of it but at the end of the day all such accounts fail .

    Naturalists who are non -cognitivists ( A. Gibbard , S.Blackburn ) for eg  argue that there is no such thing as categorical obligatoriness because they are eliminativists and philosophers like Korsgaard or Rawls who are modern Kantians and non naturalists provide an account which is not accepted by many philosophers.

    For example Korsgaard tries to explain normativity via her notion of ‘normative self governance’ which involves first person point of view but her account fails to explain why others have obligation to take seriously norms which are legislated from such a first person point of view  and that shows that her account fails to make sense of moral obligation which has to provide an account precisely of the fact that moral norms are categorically binding. 

    Absolutely same can be said about Rawls account which at the end of the day involves the idea that norms are constructed by his procedures such as the veil of ignorance and the original position but once again this approach totally fails to account for normativity and presupposes it as something unanalysed . Once again a theory is offered in which normativity plays  a role but which remains obscure.

    Same can be said about moral realism such Peter Railton or David Brink provide which cannot make sense of categorical nature of morality and hence moral normativity and for that reason their theories eliminate this type of normativity instead of explaining it.

    Same can be said about other attempts that exist in the literature.

    Upshot is that there is no plausible account of moral normativity and hence I must repeat my complaint that we have no idea what it is. 

  27. Be it in obesiance to the law, in legal reasoning and explanation, or in adjudication, an understanding of normativity is illustrated in praxis by the respective actors, even if philosophers have not come to an agreement as to its precise nature or how such normativity works (given what law is, how could it be otherwise?). I don’t want to get too deep into philosophy here but there is a recent philosophical work that does a more than plausible job of explaining normativity as such: Ralph Wedgwood’s The Nature of Normativity (Oxford University Press, 2007). With regard to international law, I think Friedrich V. Kratochwil well explains aspects of normativity in legal reasoning in his Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (1989). Arguments about the nature of normativity in law proper have been made by H.L.A. Hart, Hans Kelsen, Joseph Raz, Dennis Patterson, Neil MacCormick, James Gordley, Leslie Green, and Peter Cane, among others (and apart from those in the natural law tradition). We can at least conclude that basic normative terms are not identical in morality and law, although there is some overlap and mutual influence (from law to morality and from morality to law) between the two domains (Peter Cane’s Responsibility in Law and Morality, 2002, is an excellent illustration of this). Philip Petit has likewise illuminated the nature of normativity in social, political and legal fora.  

  28. I should also mention a book we recently discussed at Concurring Opinions that sheds considerable light on a number of relevant topics to this discussion: Robin West’s Normative Jurisprudence: An Introduction (Cambridge University Press, 2011).

  29. One last comment: It certainly is not the case that “there is no plausible account of moral normativity.” There are any number of “plausible” and even “sound” arguments (accounts) of moral normativity (some of which you cited). I think you mean to say there are none that find consensual agreement among philosophers (no surprise there) or that you yourself find persuasive. An argument might be, and often is plausible, or plausible and sound, yet not persuasive. That philosophers can’t agree as to the precise nature and workings of normativity should not lead us to abandon belief in its relevance or scepticism as to its efficacy. Indeed, the fact that so many of the best minds in philosophy have chosen to address the topic is testament enough to its importance and should not prevent us from citing its role in the law to the best of our understanding, whatever gaps and shortcomings exist, theoretically or philosophically speaking.

  30. “Suffice it to say that very few people are such thoroughgoing positivists that they believe legality and morality are coterminous…”
     
    There must be some kind of a misunderstanding here: the very essence of positivism is the strict separation of law from morality.

  31. The SEP entry on “legal positivism” by Leslie Green is here helpful, as it illuminates the extent to which the proposition that “the very essence of positivism is the strict separation of law from morality” is not quite accurate:

    “The separability thesis is generally construed so as to tolerate any contingent connection between morality and law, provided only that it is conceivable that the connection might fail. Thus, the separability thesis is consistent with all of the following: (i) moral principles are part of the law; (ii) law is usually, or even always in fact, valuable; (iii) the best explanation for the content of a society’s laws includes reference to the moral ideals current in that society; and (iv) a legal system cannot survive unless it is seen to be, and thus in some measure actually is, just. All four claims are counted by the separability thesis as contingent connections only; they do not hold of all possible legal systems—they probably don’t even hold of all historical legal systems. As merely contingent truths, it is imagined that they do not affect the concept of law itself. (This is a defective view of concept-formation, but we may ignore that for these purposes.) If we think of the positivist thesis this way, we might interpret the difference between exclusive and inclusive positivism in terms of the scope of the modal operator:

    (EP) It is necessarily the case that there is no connection between law and morality.
    (IP) It is not necessarily the case that there is a connection between law and morality.

    In reality, however, legal positivism is not to be identified with either thesis and each of them is false. There are many necessary “connections,” trivial and non-trivial, between law and morality. As John Gardner notes, legal positivism takes a position only one of them, it rejects any dependence of the existence of law on its merits (Gardner 2001). And with respect to this dependency relation, legal positivists are concerned with much more than the relationship between law and morality, for in the only sense in which they insist on a separation of law and morals they must insist also—and for the same reasons—on a separation of law and economics. [….]

    To exclude this dependency relation, however, is to leave intact many other interesting possibilities. For instance, it is possible that moral value derives from the sheer existence of law (Raz 1990, 165-70). If Hobbes is right, any order is better than chaos and in some circumstances order may be achievable only through positive law. Or perhaps in a Hegelian way every existing legal system expresses deliberate governance in a world otherwise dominated by chance; law is the spirit of the community come to self-consciousness. Notice that these claims are consistent with the fallibility thesis, for they do not deny that these supposedly good things might also bring evils, such as too much order or the will to power. Perhaps such derivative connections between law and morality are thought innocuous on the ground that they show more about human nature than they do about the nature of law. [….]

    [And with regard to some of our later discussion above:]

    In view of the normative function of law in creating and enforcing obligations and rights, it always makes sense to ask whether law is just, and where it is found deficient to demand reform. Legal systems are therefore the kind of thing that is apt for appraisal as just or unjust. This is a very significant feature of law. Not all human practices are justice-apt. [….] Even if law has internal standards of merit—virtues uniquely its own that inhere in its law-like character—these cannot preclude or displace its assessment on independent criteria of justice. A fugue may be at its best when it has all the virtues of fugacity; but law is not best when it excels in legality; law must also be just. A society may therefore suffer not only from too little of the rule of law, but also from too much of it. This does not presuppose that justice is the only, or even the first, virtue of a legal system. It means that our concern for its justice as one of its virtues cannot be sidelined by any claim of the sort that law’s purpose is to be law, to its most excellent degree. Law stands continuously exposed to demands for justification, and that too shapes its nature and role in our lives and culture. [….]

    The familiar idea that legal positivism insists on the separability of law and morality is therefore significantly mistaken.”
     
     
     
     

  32. Patrick’

    This might seem repetitive but here is my last stab : as far as Ralph Wedgwood goes he too fails to provide an account that is satisfactory, because it fails to capture categorical nature of ‘obligatoriness’ and so he fails to provide an account of moral normativity. 

    Same goes for trying to explain it in terms of ‘praxis’ etc because such an account presupposes a notion of normativity which is unexplained. Practical reason accounts such as Aristotle or Kant do not work either as is well recognized and I provided an indication why they fail in my remarks about Korsgaard and Rawls.  

    This is perhaps why, since philosophy has turned to naturalism ( since 60’s due to Quine’s work ) , many philosophers who work in ethics have come to think that normativity generally and moral normativity in particular is an illusion ( Accounts that hold this are varieties of Error theory inspired by JL Mackie 1977 ).
    Philosophy, then,  is these days taken to be continuous with science because of naturalism making a comeback and that is why evolutionary theory has been taken up by to shed light on morality and in the light of these developments there is a growing consensus that takes Error Theory / Fictionalism seriously and on this view there is no such thing as moral normativity.

    Moreover –which is another explanation of why we do not have any plausible account of normativity– the general thrust of 20th century metaethics since G.E. Moore is anyway a movement away from moral normativity . You see this in non cognitivism both ( both n UK and US ) before and after 2nd WW, which involves a concession that there is no such thing as categorical obligatoriness .

    This is further conceded in work we see in the 70s and 80s as I already hinted  of which Mackie ( 1977 )  is typical example and which also jettisons categorical obligatoriness and as I already pointed out recent developments in metaethics which incorporate evolution continue this approach .

    What I said is very rough  but it gives some indication  of the reasons for the point about normativity I was making viz. it seems fairly  obvious  that there is no plausible account of moral normativity and that we may never come up with one.

  33. Again, I don’t want to debate here ethical arguments in contemporary philosophy but I think your reading of what “many philosophers who work in ethics have come to think[,] [namely], that normativity generally and moral normativity in particular is an illusion,” is not a accurate characterization of the profession on the whole and the belief that philosophy is continuous with science may be fashionable in some quarters but is resisted with vigor by any number of contemporary philosophers and is rightly and pejoratively characterized by Avrum Stroll and others as “scientism.” The light shed on morality by evolutionary theory is highly speculative and, to date, rather dim.

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