Just War Theory Double Standard

by Joe Miller

Among the several books I'm currently working on reading is a nifty volume entitled War and Border Crossings (which I'm supposed to be reviewing for Social Theory and Practice). Edited by Peter A. French and Jason A. Short, the book is a collection of papers presented at a conference by the same name back in February 2003 (a month before the U.S. invasion of Iraq). There are several very interesting essays included, but the piece by George Lucas (no, not that George Lucas, the one who teaches ethics at the Naval Academy) struck me as especially interesting.

Lucas argues that there are actually two different strains of thinking in the just war tradition. One strand, which Lucas calls the "legalist" approach, derives from Vitoria and Grotius and descends through Kant and Mill, and finally reaches the contemporary world via Walzer. Lucas characterizes the legalist tradition as being based eschewing "normative, philosophical principles about war" in favor of "the formulation of lawlike precepts governing the use of force." The legalist position, Lucas argues, is an inherently Westphalian view, one that is grounded in "the distinctly modern commitment to the values of autonomy and individual sovereignty." The international community consists of states whose territorial integrity and political sovereignty are inviolable. The legalist position, Lucas claims, thus contains an inherent paradox:

[W]hile Walzer and others argue that the moral validity of states rests on their protection of the cultural and common life of the biological individuals who constitute them, the governments of those states (from the legalist standpoint) have considerable latitude, almost an unlimited rights...to do wrong with respect to their own citizens.

Lucas contrasts the legalist position with what he calls "classical" JWT. This strand of the tradition derives from the thinking of Cicero, Aristotle, Augustine, Aquinas and Suarez and finds contemporary expression in, probably most famously, the writings of James Turner Johnson. This tradition, Lucas notes, does not contain any notions of things like sovereign states or an international community. Indeed, as Lucas claims

Specifically, classical JWT does not rest conceptually on the domestic analogy as does the legalist tradition, for in the classical tradition there is no conception of biological individuals (let alone sovereign nation-states) as having prior privilege or sovereignty over the needs and dictates of the human community as a whole.

The point of this distinction, for Lucas, is the claim that while the 2003 invastion of Iraq is pretty clearly a violation of the legalist understanding of JWT, it may not actually violate the classical tradition. Lucas doesn't really ever argue very fully for this position, though the claim strikes me as at least plausible. Suarez, for example, is content to justify at least some aggressive wars. Moreover, nothing about just cause or right intention entails that only defensive wars are permitted. So it is possible that the pre-Westphalian classical JWT tradition would sanction the 2003 invasion of Iraq. It's a question that would require considerably more discussion. One might also want to ask whether a pre-Westphalian JWT makes any sense in a post-Westphalian world. I don't propose to solve either of those problems here.

So why is this here then? Mostly because it's interesting to think about the possibility that there are two strands to the JWT tradition. At the very least, Lucas' claim provides interesting grist for the mill as we read Luban's "Just War and Human Rights" (JSTOR subscription required).