In Response to Mavrodes' "Conventions and the Morality of War"

by Wesley Frazier

Mavrodes' paper is divided into two distinct parts. The first half a critical examination of moral theorists who supports noncombatant immunity ( including Anscombe ) and the second part which is his attempt to solve the moral dilemma, which he claims Anscombe and other philosophers have failed to solve.

Mavrode states quite clearly that a war is only just when 1) it's cause is just and 2) that the deaths in a just war must be "proportionate" , with no further requirements. These requirements will define what I shall refer to as a "just war" for the scope of this paper. (117)

While he never explicitly defines the double effect outright in his paper one can gain a clear understanding of the definition he uses from these two passages :

This involves dividing the consequences of an act (at least as far as the foreseeable consequences) into two classes. Into the first class go those consequences which constitute the goal or purpose of the act, what the act is done for, and also those consequences which are means to those ends. Into the other class go those consequences which are neither the sought-after ends nor the means to the ends. (119)

It ["It" being non-intended non-combatant deaths] may be morally acceptable if the good end which it may be expected to attain is of sufficient weight to overbalance the evil of these non-combatant deaths. (119)

Mavrodes' claim is that the distinction made by the double effect towards non-combatants is arbitrary, and can only be held if there is a genuine moral difference between the loss of a combatants life and a non combatants life. He then states that the only genuine moral difference offered by Anscombe and others is the concept of innocence. He then argues that innocence is simply another word for noncombatant and therefore such a stance is circular. (122) He also questions wether or not the term innocent could not also apply to combatants and wether or noncombatants can be considered non-innocents. (122-123)

It seems likely that Mavrode is working with two definitions of the word innocent in the above critique. One which equates innocence with noncombatant and another which does not. It seems likely that the later definition armed with the "double effect" may be immune to his former criticism. However he does not seem to examine the consequences of this later definition and does not clearly differentiate between the two definitions.

It also seems that if we are to take this critique seriously then one must say it is morally equivalent (during a just war) to kill a combatant who is a primary cause of aggression and killing a non-combatant who is not a primary cause of aggression. As Mavrode holds that creating a distinction of moral weight between the two is arbitrary.

Mavrodes then proposes a moral system to account for non-combatants on the basis of conventions. Most of the moral claims made so far have been what I shall call tier-1 moral obligations. The idea that one ought not to kill one's neighbors without just cause. Is an example of a tier-1 moral obligation. However things such as, driving on the right side of the road, do not carry the same weight and are significantly less universal. While it may be considered wrong of me to suddenly start driving on the left side of the road here in America ( assuming everyone else continues to drive on the right side of the road) it of-course would not be considered wrong for someone in England to do likewise. This type of tier-2 moral obligation is what Mavrode calls convention-dependent morality or even more simply "convention". (126)

He also argues that there exists a gradient of conventions between maximum allowed violence in a just war and single consenting combatant vs consenting combatant war (assuming the word war is even applicable). However we have no obligation to execute warfare along any "better" convention. ( Better being equated with less death. ) Unlike the traffic analogy ( which Mavrode would claim we do have an obligation to implement a convention over no-rules driving ) there is no arbitrating social institution to generate and ensure the convention is used in practice. Therefore it would be dangerous to practice a convention when others were not doing so. (127)

This is not to say that Mavrodes is condoning a rape-pillage-and-salt-the-earth style of warfare in response to any aggressor. He does still hold that proportionality is a requirement for the just war. (128) However a rape-pillage-and-salt-the-earth style of warfare would be justified by his argument if it is the only way to stop an aggressor from raping pillaging and salting the earth ( or some equally morally negative offense(s) ) of the defending country. It also seems as if it may justify a war of moral dubious actions when one's opponent severely outclasses yourself.

Ultimately Mavrodes' convention-dependent morality cashes out thusly :

If one's cause is just and the slaying of noncombatants would advance it-if, in other words, one is not prevented by considerations of justice and proportionality-this is the crucial case. If one refrains unilaterally in this situation then he seems to choose the greater of two evils ( or the lesser of two goods). (129)

Mavrodes argument is largely consistent and compelling. However he makes a bold reversal from his first section which identifies the killing of a combatant and noncombatant as morally identical. He seems to indicate that there is a distinction between these two actions, or would be if there was an over-seeing social institution to allow us to make such changes. In fact he seems to indicate we have a moral imperative to do so if we have an over-seeing social institution.

It seems likely that a strong argument could be made that we have the imperative to make such conventions, but simply are hampered in out ability to do so without an over-riding social framework. If this is the case then it would have far reaching implications for Mavrodes and his theory.

He is likewise vague in his use of "advancement" ( a criticism is he is fond of using against his opponents ). One wonders how morally acceptable it is to sacrifice the lives noncombatants for a very small strategic advance, with out ordinary day to day moral perceptions, versus the concept that any advance at all may justify the killing of noncombatants.

Another concern is that without an obligation to adopt conventions Mavrodes has left us with a system in which our violence in warfare is only limited by the amount of destruction our opponent is ( or will ) cause. It does not take a stretch of the imagination to contemplate mutually assured destruction from such a limit. But then again Mavrodes may say that while such a thing is an unwelcoming outcome it is still justified. These concerns leave one hesitant to commit to his theory.