Universal Rights: Practicality and Enforcement through Interventions

by Jamie McCall

In “The Romance of the Nation State”, David Luban draws a distinction between the universal rights of all people and the conception of the nation-state through an analysis of Michael Walzer’s essay “The Moral Standing of States: a Response to Four Critics.” Luban proposes that a distinction between the traditional nation-state and universal rights must be made, and that the illusions we have of the philosophical grandeur of the nation-state allow us to do nothing but continue to operate in a vacuum of destruction while ignoring universal human rights. While Luban is certainly correct about our assumptions of the grand nature of the modern nation-state, he is wrong in believing that this view is harmful to universal human rights because he assumes that all nation-states do not appropriately deal with human rights violations. There are certainly those nations which act against human rights in their domestic and foreign policy, but there are many that have taken an aggressive approach to promote human rights. Nation-states are the best current vehicle for dealing with human rights violations, and Walzer’s method of dealing with infractions gives the most appropriate and practical response.

There can be no dispute that nationalism creates a strong bond between a people and their nation. This bond is formed on the basis of common thinking and heritage, and it is the result of the purely human need to find commonality and shared tradition. Throughout history, many horrendous acts have been waged under the broad banner of nationalism, causing the mindless slaughter of millions. However, this is not to say that nationalism is incompatible with human rights, including the universal rights position (Luban 393). Luban makes this logical leap by assuming that Walzer’s thesis regarding the social contract between people and the government is unfounded. The nation state model is far from perfection, it legitimizes many states that are guilty of what the rest of the world could consider horrible rights violations. However, because these violations do not equate to whole-sale slaughter of the citizens, they are legitimate. This is a problem, however again the nation-state model also creates countries that can advocate human rights and put pressure on other sovereign states without turning to interventions. These states can turn to political pressure and economic sanctions and may be able to accomplish just as much as an intervention without directly interfering in sovereignty or causing more deaths.

The problem with the universal rights position is that while it is charming, it presents a multitude of practical problems which simply must be examined when looking at its application. While it is easy to simply proclaim that all humans have certain rights universally, making sure these rights are enforced creates quite a problem. There exists no international agency with power sufficient enough to create a global enforcement of universal rights. Many have tried to put the United Nations into this role, but the simple reality is that time and again the United Nations has shown to be no more powerful those member states who control it and fund it. The attempt is noble, but the current global environment does not have any sort of real agent for enforcement to ensure the universal rights position. Conveniently, there does exist a way to enforce human rights on a nation-state level: the social contract. While not without its imperfections, the social contract provides nations with a methodology for enforcing human rights on a national level. As nations grow in power and stature, their influence (and thus their views on rights) have the opportunity to become more global and reach beyond the borders of its political boundaries. The United States is a perfect example of this in action. While, again, the United States is certainly not without its foreign policy flaws and blunders, it has become the driving force behind many global initiatives to extend its power into human rights on an international level. I acknowledge that examples like the United States are not the examples with which Luban is concerned, but the very fact that these sorts of nation-states do exist presents a different picture of the nation-state concept, and it is one that cannot be ignored even if Luban chooses not to be concerned with it.

There are, of course, many nations who misuse the social contract or use it in such a way to promote a brand of the nation-state that devalues human rights. However, the contract theory as a whole is simply the best vehicle to achieve wide-spread human rights. In these cases, those nations with extended power should assert their political influence on these nation-states in violation of internationally recognized human rights. Even if there were a possibility to create such a powerful moral agent, no long-term rationally thinking nation would choose to get involved. Nations value their sovereign power, and even in those instances where international agencies would be sharing the same values as a sovereign nation, few would choose to simply hand over their own enforcement power to an international organization. Even if those states that respect human rights are granted sovereignty and those who do not respect human rights are not recognized as sovereign as Luban wants to do, we still run into the practical problem of forcing states to voluntarily hand over their political and economic powers to an international enforcement agency. States simply do not like to hand over their authority on matters, no matter how noble the transfer of power would be.

Of course, the claim against this is that creating an international enforcement agency in such a situation is not required, that individual states could act on interventions on all “non-sovereign” states. However, we then create a political climate much like the one we have now in the international theatre: everyone decries human rights abuses, but no one wants to spend the resources or suffer the economic repercussions of stopping it from happening. So, one state ends up doing everything, and then that states stops because it no longer wants to spend its resources when such resources could be spent for its own direct economic and political gain.

Luban’s attack on Walzer’s “as if” principle (216), that we should act as if states are legitimate when there exists a perceived fit between the nation and its people (and that we should only intervene when oppression is obvious and overwhelming), is incorrect. Luban attacks this by saying that Walzer’s assumption that it is often impossible for us to perceive “fits” between the government and the people is unfounded because enough information exists to enable us to make accurate judgments (395). Luban does not really attack Walzer’s main point: that some nations do have a certain fit with the population that the people want that other democracies would find horribly wrong. The argument is centered on what Luban perceives is our ability to make such a judgment due to the plethora of knowledge available (394). I think Luban’s argument here overlooks a simple fact: people are different. Luban claims that those nation states who abuse human rights will always appear to fit, Beyond these things, the cultural, political, and historical environment of a nation is such that it is extremely hard for us to know when the people are repressed beyond what they are willing to accept. What Luban does not take into account is that when a people are oppressed to a level that is highly intolerable, they will almost always fight back against the government. The traditional argument here is that most do not do this because they fear for their life – I would argue that those who are placing a higher value on their life than the repression they are enduring simply do not find the oppression intolerable enough. There is a point for everyone where repression so changes the quality of our life that we are willing to risk our own life to change that. Such revolts against authority would provide a sign to the international community that intervention is required. Not even open rebellions are required to cue other nation-states that intervention are required – things like the mindless slaughter of citizens also qualify. In cases such as these, nations like China who have no open rebellion still qualify for intervention because the government has participated in the slaughter of civilians.

Luban’s claim that Walzer’s justifications for interventions – extreme infractions on human rights (Walzer 214) – sets the standard to high for when intervention is required . However, Lubans standard seems to be very vague and pose the opposite problem of setting the bar to low (Luban 396). Luban proposes that interventions are warranted anytime when a people’s human rights are “systematically” violated (Luban 396). The problem, of course, is that he never defines exactly what that means. Is a systematic violation when several peoples rights are violated, or a hundred? Maybe a few thousand is the number required to sustain a systematic violation? In any case, such would require an intervention which would cause the deaths of hundreds of thousands. Even if that could be justified, interventions on “systematic” violations could mean that we must intervene in nearly every nation, depending on how you define systematic. The essay is short so he can’t possibly accomplish everything, but to use such a term and leave it undefined does not help his argument.

Luban illustrates his theory by using the Nicaraguan revolution as Walzer does (Luban 396). He proposes that the amount of bloodshed required to obtain a “fit” for the government and the people is so high that it illustrates the need for universal human rights. If we take Luban’s argument to its conclusion, it would seem as though he proposes that Nicaragua would have been better off if someone would have intervened during the very start of systematic human rights violations. No one would argue this normative claim, but actually doing as Luban proposes would have required a crystal ball that we do not have. While in some instances it may be possible, on the whole it becomes very hard to determine exactly when a country beings “systematic” (whatever that means) violations.

Luban concludes by attacking the virtue of Walzer's argument and asserting that human rights should over-ride the nation state (397). While I will not deny that Luban's pattern of thought here is certainly nice, it is in the end impractical. The nation-state is not without its problems, but it is the best mode of extending human rights. No one would really argue that human rights, if they exist, should not be universal if possible. The argument becomes one how to enforce these rights. Lubans argument, while nice, requires a utilitarian calculation that could prove to be impossible to make in many situations.

A Defense of the Loony Left

by Joe Miller

Okay, actually, I've no desire whatsoever to defend leftists. Nor would I dispute the claim that in American universities (at least in the humanities and the social sciences), the faculty lean noticeably to the left. I'll happily admit that I am a liberal--a neoliberal to be more precise. When it comes to economic policy, I believe very strongly in markets; indeed, I think that the market is the best method around for allocating scarce resources. I happen to think that markets don't do this perfectly, and I also think that efficiency--while a value--is not the only morally significant value, so I am willing to sacrifice some efficiency for a bit of economic justice. Safety nets are good ideas; safety nets that are nonpaternalistic are even better, so I much prefer, say, the Earned Income Credit to Food Stamps. In terms of social policy, I'm actually much further left. I figure that if you want to have a wedding at which you marry two women, a man and your pet rabbit while smoking peyote, worshipping the sun god, leaving the engine idling on your Hummer and reciting all your favorite bits of The Communist Manifesto while dancing around a burning cross and showing off pictures of your harp-seal hunting expedition, then more power to you. I'll probably decline your invitation to attend (unless you have crab cakes), but I won't try to stop your party.

Okay, you say, get to the point already. So I see, via Liberty Corner and Volokh, that noted public intellectual, Sean Hannity, offers the following observation:

Kids are indoctrinated. They'’re a captive audience. What can be done to remove these professors with these radical ideas from campus?

You've just got to love that Sean. Never met a question that he wouldn't beg. Knocks straw men down with one hand tied behind his back (see Colmes, Alan). Ad hominem attacks? Of course he wouldn't stoop to such tactics, and if you weren't such a pretentious shit trying to look smart with your poseur Latin maybe you could manage to read all the way through a sentence without betraying your unending ignorance.

Michael Berube amuses himself by providing a reductio ad absurdum (two Latin phrases in one post! I'm overeducated!) of Hannity's question. (It's good practice for a professor since Hannity manages to make undergraduates look like sparkling wits.) Berube's response focuses largely on academic freedom, a point to which regular commentator Tom of Liberty Corner takes exception:

Academic freedom seems to be fine for leftists as long as they hold the academy in thrall. More parents would send their children to schools that aren't dominated by leftists if (a) there were enough such schools and (b) the parents could afford to do so.
...
"Academic freedom" is not a license to waste the money of taxpayers, parents, and students on propagandizing. Academics -- like politicians -- aren't owed a living, in spite of their apparent belief to the contrary. It isn't a violation of "academic freedom" or freedom of speech to say "The junk you teach is worthless, and besides that you don't teach, you preach. Begone!"

Tom spends a lot of his post quoting approvingly from a review of David Horowitz's The Professors, a book that rather charmingly lists the 101 most dangerous professors in America. I'm really not sure what to say about Horowitz except maybe to remind him that you are talking about college professors in the humanities and social sciences. We can't be that dangerous. Why? Because no one freakin' listens to us in the first place. Hell, a big chunk of my students don't listen to me in class and I get to give them a bloody grade! Why anyone else would listen to me is a total mystery. I mean really. Who's reading this? Mom. The kid who has a paper due on academic freedom in 26 minutes and is currently cutting and pasting this into a Word document and hoping that no one notices. Otherwise? Bueller?

Besides, on a semi-serious note, how hard is it really to find 101 lunatics in any field? And how many college professors are there out there? There are about 150 of us just in my single medium-sized regional university. I suspect that it wouldn't be all that hard to find 101 screwy right-wing professors to fill the pages of a book either. I could always just start with the biology department at Bob Jones University. "Welcome to paleontology 101. Look at this human tooth discovered in Turkey; it belonged to Noah. And this mark here? We think it means Noah was eaten by aTyrannosaurus." (Okay, this didn't wind up being semi-serious after all.)

So is there a real point to be found buried under all the flippancy? Maybe. Look, the academy hasn't always leaned to the left. There was a pretty lengthy period in which universities were dominated by reactionaries, folks who decided that anything unorthodox really shouldn't be taught at all. These are the institutions that rejected Galileo, refused Hume a position on the faculty, banned Descartes, and resisted Newton. Why did some of the most respected universities in Europe act so stupidly? Because in each case those in charge decided that "the junk you teach is worthless, and besides that you don't teach, you preach. Begone!" Unfortunately, in each case, the worthless junk turned out to be, well, true.

Now don't get me wrong. I'm not at all saying that I think there is a chance in hell that history will vindicate Marx or Lenin or that someday future academics will all look back and say, "How could 21st C academics have resisted the siren song of Derrida (sorry Jimi) for so long?" My point is that however strongly I feel that post-modernism is, to use a technical phrase, a gigantic pile of steamy crap, I don't have any way of knowing that to be true. It'll be bad enough if history records me as being on the wrong side of the post-modernist debate. Far worse if I turn out to be my century's equivalent of Cardinal Bellarmine.

This, of course, is Mill's point on On Liberty (you knew I had to be getting here sooner or later). Since we cannot really be certain in advance who is right and who is wrong, we really must permit all speech. In a university, an institution that is dedicated to uncovering Truth in all fields, however esoteric (or we were before the post-modernists showed up. Damn you French intellectuals!) , it becomes even more important not to censor open inquiry. Indeed, policies like tenure are needed precisely to avoid having professors who voice politically unpopular opinions from being run out of the academy. We need those opinions, even if we're sure that they must be wrong, if for no other reason than to force us to continue to defend our correct beliefs.

Do I think that there are a lot of really bad professors out there? No doubt. Are there a lot of professors who have tenure who probably should never have received it? Again, no doubt. Should we as a profession strive to ensure that those who preach rather than teach do not receive tenure at our institutions. Absolutely. Should we fire professors because we think that their conclusions are wrong. No way. Indeed, unless we allow free and open dissent, how will we even know which conclusions really are wrong?

Difficulties of Preemptive War

by James Moore

The piece I will be focusing on and responding to is a piece by William Galston. Galston gives his stance on the idea of a preemptive war in Iraq. Galston wrote this piece prior to the United States going to war with Iraq, yet he still fell firmly against going to war with Iraq. Preemptive war is a difficult topic to talk about because it is something that you can never be one hundred percent sure about. A preemptive war is a strike upon a nation or a state that has the ability to attack and you have evidence that they are plotting to attack, so you strike first to prevent the attack from occurring. The latter seems to be the part that I have most concern with. It is difficult to know when a nation or a state is going to attack. If it is a nation alone without the confines of some territory I think it is even more difficult to preemptively strike because, there is no particular place to declare war with. If we do preemptively strike, at anytime, there are some guidelines we should follow in order to show the world that we are not just arbitrarily throwing our weight around. I will give the guidelines that Galston highlights in his paper and show why the war in Iraq, as we all know, was a terrible use of preemptive war.

The first thing that a country should know, before a preemptive strike is even considered, is that the suspecting country has the ability to strike the defending country. This is saying that we should be knowledgeable of the country we are getting ready to attack, meaning we should know whether they have the capability to cause us harm. If we learn that a country has the capability to cause us harm we should go to the second step.

The second thing would be has the country in question had a history of striking other countries and we have a legitimate reason to believe that they are planning an attack against our respective country. This one is going to be difficult to figure out. The country in question is probably not going to give an indication of an attack. This is where I think it is dangerous because it then becomes an assumption and the assumption is based on the evidence. If the evidence is faulty in any way the war would be unjustly provoked. This to me is a serious problem because how do you undo a war. This is why before a preemptive war is begun you must be certain that the country in question has a serious plan for attack not just a thought. The evidence must be substantial such as threats, any kind of evidence of plotting a strategic attack, or weapons that can harm you pointed at your country.

The last option is not a necessity but it is a favorable option which is to include allied countries. Show them that it is not only in our best interest but their best interest as well to go to war with the country in question. You should try and get some sort of consent from the surrounding countries of the country in question and in the case of Iraq the U.N. This gives other countries the idea that you are doing this as a means to make the world a better place. This is not a necessity though we must understand that in some situations we might not have time to consult the other countries and a preemptive strike is needed because the first two requirements are filled. This last step is used to create better relations with the world, as opposed to simply attacking who ever you deem as a threat and not really showing any consistency with your choices. I think this gives the world a bad impression of us because it seems we are just arbitrarily choosing countries and giving different reasoning behind each attack. We as the preemptive striker must show some consistency in our acts and, as I said earlier, not just throw our weight around. If we did this it could have negative affects on the other countries of the world.

Now, let’s go through the war in Iraq and see if it met any of these steps. Were we certain that Iraq had weapons of mass destruction? This would fall under the ability category. We had some belief that Iraq had weapons of mass destruction. There was evidence of chemicals used to make weapons of mass destruction. This to me doesn’t meet require one; you must be certain that the country has the ability to harm your country.

The next step is, has the country had a history of striking other countries and do you have legitimate reasoning to belief that you will be attacked. This one is extremely difficult to answer. Saddam Hussein has never threatened America because; he knew that that would result in his removal from power. We saw this in the Gulf War, according to Galston, where we threaten to remove him from office and he back off. Knowing this why would Hussein send a weapon of mass destruction, assuming he had them, if he knew it would result in his removal? Dick Cheney said “Deliverable weapons of mass destruction in the hands of a terror network or murderous dictator or the two working together constitutes as grave a threat as can be imagined. The risk of inaction are far greater that the risks of action”. We can see that Cheney has already assumed that Iraq has possession of weapons of mass destruction. In Cheney mind we have covered step one. How does he justify step two by saying that weapons of mass destruction in the hands of a murderous dictator constitutes as grave a threat as can be imagined. This to me does not meet require two. If we use a murderous dictator with weapons of mass destruction for justification for going to war then we had lots of choices. Why exactly did we target Iraq? This one still give me trouble to this date. I have don’t know why we chose Iraq. The Bush administration claims that they are connected with terrorist organizations; again I say we could have picked lots of countries under this justification. Iraq is harboring terrorists, so was America. We trained the individuals that flew the plains into the twin towers. In this case we are training terrorist so we are connected to a terrorist network, therefore we blow ourselves up.

The last step is the one the Bush administration just left out. They made no effort to include other countries. The UN said no, not a good idea. The Bush administration, using there ever so popular middle finger policy with foreign relations, went to war anyway. If we look at the United Nations Charter we see that the only time you have the right to attack is when you are attacked. This is why the UN was against it, but it is not as if they made this up to prevent us from going to war. We signed and were the principal drafters of this document. This has to be appealing to the other countries that see us write one thing and do another that shows how reliable we are to our word.

We have seen examples in the past where America has done its job perfectly for example, when we pushed Iraq out of Kuwait. Iraq had challenged the territorial boundaries of Kuwait so we rightly acted to stop the Iraqi forces from completely taking over. This shows all the countries we are equally giving assistance to all countries in need, which projects a little bit better picture onto the world.

The United States is one of the most powerful nations in the world when it comes to military power. This does not mean we are not vulnerable to attack. In order to prevent these attacks we need to keep a good relation with all the countries of the world. We have to show that we are not the big bully on the play ground, we follow rules just as they should. If they don’t follow the rules there are consequences, if we don’t follow the rules nothing happens. This is why we need to make a solid effort not to break the rules that we had a huge part in creating. If we show the world we are not just arbitrarily throwing our weight around they will get a sense of consistency and they will learn how we act in accordance to the rules, but if act outside of the rules the other countries won’t know what to do. They will be confused because if they act this way they get blown up, if they act that way they get blown up. They get to where the only thing they can do is retaliate. This is why America needs to make a concerted effort in showing obedience to the rules which we set up.

On Preventative War

by Jeremy Page

Given today’s political climate, this subject is probably the touchiest one we will encounter this semester. I have no doubt where most of our class’ opinion lies with respect to the Iraq War. I suppose most of us are willing to slam the war, decrying the preemptive strike Bush made along with the accusations of American imperialism. No doubt Thursday night will be amongst the most heated discussions we will have. Those things noted, I suppose I need to discuss what I am supposed to be writing on.

I find myself to be somewhat of a national egoist, combining that with a realist philosophy when it comes to war really seems to make me a jerk. While the interests of the global community are important; it should take the backseat to one’s own country. Why? Because I live here, along with my friends and family-this nation’s policies directly affect me (a bow to egoism as well as national egoism). I’m not arguing that global issues do not impact me, I simply tier American interests to be higher than global ones-at a political level.

In touching on politics, I am convinced that it is important to separate one’s morality and one’s politics. I am not proposing that morality and politics should never intersect; I am simply stating that to confuse political and moral ideals will shortchange either side. Considering that my political obligations are much less stringent than my moral obligations is fairly accurate. As an example: it is a moral obligation to prevent genocide or to feed the homeless, but I cannot commit myself to state that these are political obligations. Treaties and coalitions not being taken into consideration; I am especially certain of this as far as it applies to the U.S.

Moving on to the Iraq situation: David Luban asserts that the U.S. listed three justifications for invading Iraq: the first reason is “a legalistic argument that the war was necessary to enforce United Nations resolutions in the face of Iraqi defiance.” The second reason is humanitarian, the removal of Saddam Hussein’s repressive regime. The third and most controversial reason given was that the invasion of Iraq was a preventative war.

The legalistic reason(s) given is somewhat laughable. I am sure I am not the only one who believes that Bush was using this idea to help support his second and third reasons for the invasion. Surely Bush is sensitive to the United Nation’s sentiments in some ways, but to declare one self the (nearly) sole executor of the U.N.’s will is overkill. I doubt Bush cares that much about the U.N. Some people might even cynically state that he does not care at all.

The humanitarian excuse for the invasion of Iraq seems to be much more respectable, but once again I would say that it was given more in support of preventative war than as a reason in and of itself. I doubt anyone would really question whether or not Saddam Hussein ran a despotic regime. Whether or not the U.S. should have toppled his government is in question, but as I see it, even if it had not been us, someone would eventually have to do something.

And now we find ourselves in the area of contention: preventative war. President Bush issued a National Security Statement stating that America “’must stop rogue states and their terrorist clients before they are able to threaten or use weapons of mass destruction against the United States and our allies and friends…’ which requires acting ‘against such emerging threats before they are fully formed’” (Luban). According to Luban the stance taken by Bush is “an important revision in just war theory…” I seek to find out why exactly this is, while using Walzer’s piece and the piece by Galston.

According to Galston, citing the U.N.’s international law (and just war theory), “the first duty of every government, they say, is to defend the lives and security of its citizens.” To assume that Saddam Hussein was actually an imminent threat to the U.S. would be to assume that the U.S. was justified in its invasion of Iraq. Because of the lack of evidence that Hussein was an “imminent threat” it is not possible to show that the invasion of Iraq was justified. According to Galston, “the threat to the United States from Iraq is not sufficiently specific, clearly enough established or shown to be imminent.” Galston’s commentary was given previous to the war in Iraq, and like many other critiques’ claims, it still seems to hold true.

Whether or not the Iraq war can be said to be justified or not will require us to look at Walzer’s work on “anticipations.” It is best to make an attempt to define what would justify a war of prevention and then attempt to apply it to the Iraq situation.

The legalist paradigm for preventative war seems to be lacking. It allows for an individual or country to “defend themselves against violence that is real but not actual” (Walzer 74). I question how something can be “real but not actual,” given the definition of each term. Walzer seems to believe that this reduces defense and pre emption to a “reflex action.” I would say that if the other side has already thrown the punch, you are well past the point of pre emption; at that point I would suppose you would find yourself in a wartime situation. The scope of consideration that goes into a preventative war would be much more calculated than something that can be reduced to a mere “reflex action.”

Preventative war asks states to make decisions that have no real standard for measurement. When is a threat “imminent?” Does it matter if a threat is more talk than action? Are troops gathering near a country’s borders cause enough for a preemptive attack? Does the attempt at acquiring nukes constitute a pre emptive strike? Does past history play a role in the way a country is treated? How are the actions of a country read by other countries? All these are questions that do not have a scale to be measured by-they must be measured in the context in which they happen. Walzer notes that preventative wars were fought to maintain the “balance of power.” He makes reference to Europe while addressing the balance of power.

Quoting Francis Bacon, Walzer states (about balance of power and the classical concept of prevention): “it requires of the rulers of states….that they ‘keep due sentinel, that none of their neighbors do overgrow (by increase of territory, by embracing of trade, by approaches or the like) as they become more able to annoy them than they were.’” Bacon continues to state that “a just fear of imminent danger” is cause enough to strike first. I feel that this idea for preventative war is somewhat lacking; Walzer brushes aside its weight as well, noting that using a utilitarian philosophy when not knowing the consistent outcomes of war and peace is not in the slightest bit practical.

Walzer goes on to present the ideas of a man named Vattel. Vattel’s ideas, is seems bring Walzer to point out a few more details on preventative war- Vattel’s ideas dealt with the War of Spanish Succession (the quote can be found on page 78 in Walzer’s book). It is noted that the mere acquisition of power is not enough to initiate a preventative war, and neither are insults or comments made without the ability or intent to back them up. All of the trash talk in the world matters very little if the nations being threatened knows the country making the threats cannot do a single thing to back it all up. Once a country has the means, will, and intent (my phrase), and such an attack is imminent-then the country who is the potential victim may act.

According to Walzer, no country really desires to attack until they are threatened. A country cannot feel morally justified in initiating a war that might not have to be fought. Walzer refers to this as “moral security,” I think that this is highly idealistic of Walzer. I doubt countries are that concerned with morality, as they are concerned with saving face. “Moral security” is a public image phrase that adds weight to the reasons given for a pre emptive strike. Walzer uses his idea of “moral security” to state that in the Burke’s and Vattel’s ideas for morally justified preventative war are “worrisome” because they do not require some sort of aggressive action to be taken previous to a pre emptive strike. I would say that Walzer misses the mark with this statement because it would require a “reflex action” that he noted earlier on. Relying on such an action can be classified, in my opinion, as self defense, retaliation, or engaging in an open war. It is not pre emptive or preventative-that would require the nation fearing an attack to strike first (before the threatening nation gets a chance to).

Walzer eventually states his notions of what constitute a justified first strike (and then uses the Israel-Egypt 6 Day War as an example): “the line between legitimate and illegitimate first strikes is not going to be drawn at the point of imminent threat but at the point of sufficient threat.” Walzer believes his statement to be vague, as it requires even more of an explanation:

it requires: a manifest intent to injure, a degree of active participation that makes that intent a positive danger, and a general situation in which waiting or doing anything other than fighting, greatly increases the risk” to the country concerned about a pre emptive strike. I state this as simply: intent, will, and means and imminence of an attack. It seems that Walzer is using a little bit of utilitarian philosophy in his last statement-something I thought he did not see fit to use when discussing pre emptive war.

Walzer concludes with his summary of what would justify a preventative war, I feel that I must agree with him on a moral level. Although I disagreed with Walzer on my last paper, I feel that he gets it right here. Ultimately it is wisest for a country to consider its own ends before setting out to flirt with morality-but in some cases morality is the guise that helps save face.

As far as the Iraq War goes, I don't feel it can be justified if it is required to live up to the criteria presented in the works we read this week. Saddam Hussein and Iraq had none of the means, a little will, and doubtful intent. Does that mean we can't be there for other reasons? I think not, but I'm sure someone might have something.

Shouldn't That Raise the Threat Level to Orange?

by Joe Miller

I'm not quite sure what exactly to make of the news that President Bush has signed off on a plan to outsource running six U.S. ports to a subsidiary of the government of the United Arab Emirates. Granted, when it comes to hating Americans and breeding Islamists, the UAE isn't in the same league as Iran or Afghanistan or even Saudi Arabia. Still, the UAE isn't exactly the most reliable of allies, and the company in question, while a for-profit company, is still state-controlled. It's not beyond the limits of reason to think that perhaps a state-run company might perform some action that is in the interest of the state even when doing so runs counter to making a profit.

The claim that allowing a UAE state-controlled company to control U.S. ports is completely analogous to allowing a completely-private British company to control those same ports is, to use the technical logic term, a shitty analogy. Not all foreign companies are the same, particularly when one of them is really an arm of Dubai.

Preemptive Conclusions

by Mitch Ullman

In a class concerning itself with matters of war and morality, especially at a time in which ‘war’ appears to be simply an indefinite article of the catch-phrase-of-the-day and morality has been dashed upon the sponge that is Relativism, I feel that it is only right that the concerns contemporary to the members therein be analyzed and deliberated. Such is the case with William Galston’s paper “Perils of Preemptive War.” His paper’s thesis would appear to be built pragmatic grounds similar to the doctrinal arguments against which he is bucking. Essentially, Galston believes that a negative outcome is just as plausible as a positive; therefore a preemptive war doctrine is an illogical choice. The path that is taken to his point is threefold, seemingly unrelated arguments, aside from the obvious connection that they are arguments against the doctrine of preemption, that eventually coalesce into an implied argument as was previously stated. While there are points in the paper that I do not wholly agree with Dr. Galston, his overarching argument appears to be sound. I am going to attempt, with what little ability that lie within my grasp, to further elucidate the argument and perhaps even attempt to put my finger on those points to which I do not feel apply.

As I mentioned before, the way in which “Perils of Preemptive War” (henceforth, to be abbreviated as PPW) is written contains, more or less, an implied argument that is based on the conclusions put forth by the three minor arguments presented. There is, however, a brief introduction that my put the reader off, depending on the reader’s political background. Unfortunately, this sort of tone-setting prelude is commonplace. Whether or not the reader is put off by this sort of thing, I promise, there is meat in this particular sandwich. Usually, I attempt to neutralize such introductions, at least in the academic setting, by simply thinking of this sort of writing as a stylistic crutch upon which the writer must rely; else they may feel they have misrepresented their cause. One would hope that the editors of such writings would at least attempt to move an introduction like this to somewhere more appropriate, such as the end of the paper; rewording the introduction to be as neutral as possible to retain as wide a readership as possible. Then again, I suppose that would require academia to stop preaching to the choir and start leveraging its collective mind against the everyman. Please, accept my apologies for digressing so far from the good doctor’s argument. Shall we proceed? Excellent.

The first major attack on the doctrine of preemptive war, as outlined by the so-called Bush Doctrine for peace in the Middle East, is one grounded in the stalemate that is arrived at via the pragmatic (notice the little p) rationale. For each reason given for invading Iraq on pragmatic grounds is thwarted with an equally plausible pragmatic dissension. The primary reason given for preemptive war in the Bush Doctrine is that if one of the main ‘problem states’ is toppled, others will fall in line, therefore paving the way for peace in the Middle East. The reality of the situation, as it appears four years after the writing of PPW, would seem to vindicate Dr. Galston’s predictions. Pakistan’s Musharraf has, for all intents and purposes, capitulated to many of the American demands made on hims since the AUFM was granted and the ousting of the majority of the Taliban government in neighboring Afghanistan. This is to the credit of the Bush doctrine, although a weak standard by which to guide us in the decision to invade Iraq. There are, however, three recent discrediting examples: the democratic election of the group, Hamas, into power in Palestine, the current stand-off in Iran concerning nuclear enrichment and the fervor surrounding the publication of cartoons depicting the prophet Muhammad (it is arguable that the backlash from the Islamic community over the cartoons mentioned would not be at the scale it is had America had not essentially declared war on Islam in its previous description of the Axis of Evil in the run-up to the invasion of Iraq). As much as I would like for a show of force to be good enough to placate violent people throughout the world, it is fairly obvious that this tactic is lacking in foresight. There are many ways to react to any action, and as has been made clear by the differing reactions of the people of the Middle East to the doctrine of preemptive war, in general, and the invasion of Iraq, specifically, the weight of the argument for preemptive war is lessened greatly. Add to this the decreased ability of the American military to respond to domestic threats due to the continued occupation of both Afghanistan and Iraq, the monetary consequences to occupation, not to mention the drastic increase in the price of crude oil (on which the economies of the world rely) and one could easily make the argument, after the fact, that the Bush Doctrine was a doctrine based on overly optimistic consequences. There is no alternative given in PPW, nor in this paper. This does not, however, decrease the reality that, on pragmatic grounds, preemptive war is a sound methodology.

The second argument is made on the basis that we are members of an international community, one that we have striven much for since the end of World War II; and as such, we should behave as a member of said community. This is essentially the legalist argument as it is laid out by Walzer, although he will come into the argument directly. This argument, I believe, is a lot closer to the first than Dr. Galston would most likely concede. I do not necessarily agree with the legalist stance, although it is one that I will turn into something more akin to the first argument on prudence in order for it to seem, to me at least, more palatable. At this point in PPW, Dr. Galston appears to be considering the “broader questions of principle” that he mentions, yet he basis his principle on the shaky ground that, interestingly enough, Realists tend to tread. Somehow, for Dr. Galston, it is enough that we have built a “framework of global security” for us to not to participate in the doctrine of preemptive war. While it would greatly simplify the legality question concerning international warfare, I do not believe that simply due to the supposed existence of a world-wide societal norm we are exempt from acting disharmoniously. Do not misread me, while I do not fully endorse contractual ethics, I do not think that preemptive war is justified simply because it bucks the trend. For instance, I do not agree with the Framers of the Constitution that agreed to allow slavery in the states that demanded it simply because they had been doing so before the Constitution’s conception. This is where things turn prudential. The Framers, while I may feel they behaved immorally, they did have the foresight to allow for the day when popular legal doctrines would allow for something closer to morality (read here, Pragmatism... big P). This is where I believe Dr. Galston may have been intending his argument to lead the reader. The international community (legally, economically, etc.) is the stop-gap measure by which independent members are slowly steered toward a morality. Breaking from this community does more harm than good in the long term goals of attaining this morality. He explicitly states that by breaking from the community, the United States may have hindered this movement toward morality that may have the effect of granting a license to ignore morals (do not confound morals with laws here, I am saying that laws should reflect morality, not prescribe morality).

The third and final argument which appears further removed from the overall argument than the first two is one that hinges on its contextual importance. Dr. Galston first introduces this third argument by again invoking Walzer. Specifically, he provides Walzer's justification for preemption which falls squarely within the realm of the Last Resort clause in JWT. Essentially, it allows for preemption if and only if the Last Resort has been met, not before and not on a possibility of it being the Last Resort. The contenxt in which PPW is working is the preemptive invasion of Iraq in based on the possibility that the government of Iraq may or may not have had 1) WMD 2) the ability to deploy said WMD and 3) the actual, not perceived, predilection so to do. As the argument is written, it assumes that conditions 1 and 2 are met. Dr. Galston works on this basis due to historical precedent. Given that Hussein's military did not deploy WMD during the first Gulf War due to the United States' threat of invasion versuse simple repulsion in the defense of Kuwait, whether he had them or not, should aptly provide evidence that he would not, unprovoked, utilize WMD. Basing the argument on clause 3 having not been met, Dr. Galston avoids the puerile shouting match that ensues whenever a person posits, in post invasion terms, taht 1 and 2 had been met. The point of this argument is that even if the weapons were available and the means were accessible, they were not used and therefore the threat is not as 'imminent' as it was being purveyed by Bush Administration officials.

Now, to bring it all back home as Mr. Dylan would say it. Dr. Galston’s thesis in PPW tends toward the Pragmatic and yet has the Utilitarian feel. Long term goals besting those of the short, reason being forward looking to the consequences, PPW attempts to draw attention to the fact that there is a ‘whole other world’ out there aside from the United States and that by its unilateral behavior, it may be impeding a truer sense of morality at which only cooperation and long-term consensus can arrive. Given the space and the time (if there is such a construct) I believe that this contextually dependent argument could be distilled and a greater Truth be found. For the moment, however, this conception of the good will suffice.

Cynicism Watch

by Joe Miller

From CNN:

On the eve of a presidential visit to a renewable energy lab in Colorado, the Department of Energy said it has transferred $5 million to the operation, which had funding cut and employees laid off this month due to budget shortfalls.

I'm sure that there is a perfectly good explanation for this, and that it's not at all a sudden realization that what had been a perfectly good photo op was about to turn into (another) PR disaster. Of course the administration cares about renewable resources. What, you think we like it that oil prices are high? Oh, wait...

Credit Where It's Due

by Joe Miller

President Bush's call for an additional 7,000 international troops in Darfur strikes me as good news indeed. Continuing violence and genocide would seem to indicate that the status quo isn't working well. Supplementing the roughly 7,000 African Union soldiers currently on the ground with an international force under U.N. control is a step in the right direction.

Cynics may point out the the President's call is somewhat empty since he is, in effect, calling for 7,000 of someone else's soldiers. Thus far the administration has made no plans to up the number of U.S. soldiers directly involved in the peacekeeping mission (most of the U.S. presence so far has been in supporting roles, providing airlift and dropping supplies). Or one might be tempted to complain that, given the President's disdain for the U.N., any problem that he suggests ought to be handled by the U.N. is also a problem that he doesn't particularly care about.

I submit, though, that we few remaining liberal internationalists ought to be careful to avoid the genetic fallacy. Whether President Bush's decision represents a genuine nod in the direction of liberal internationalism (and, by extension, a nose-thumbing at neoconservatism) or is nothing more than a calculated political ploy to look as if he cares, the fact remains that sending more troops to Darfur is probably a good thing. So, provided that said troops actually materialize, perhaps Bush's move will start moving foreign policy back toward something that is, well, less disastrous than neoconservatism has turned out to be.

War, the Constitution, and the UN II: Return of the Cosmopolitans

by Joe Miller

Several weeks ago, in my first post on this subject, I argued that the supremacy clause of the U.S. Constitution together with the U.N. Charter's status as a fully-ratified treaty act as a limitation on the conditions under which Congress may legally declare war. The post drew fire from a few readers (okay, I have only a few readers, but those I do have were more vocal than usual in their objections). Brian Doss raised a number of good objections here. Tom Anger offered a few more here and here. While I could hardly reproduce the entire exchange (read the posts; they are worth the time), I did want to address at least a few of the very good issues that Brian and Tom raise. So without further ado, here's my very tardy response.

Here's Brian:

In long, the point again: since the Constitution is the ultimate source of authority in the US government, and as it trumps both law and treaty when there is conflict; and as the Constitution may not be amended by treaty but by manner prescribed by the Constitution; and as it would require an amendment to the Constitution to substantively modify Congress’ warmaking authority; the UN treaty therefore is not a legal constraint upon the US Congress’ warmaking authority, and Congressional AsUMF or declarations of war are necessary and sufficient for a US war’s legality.

And Tom, in a second post on the subject:

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. . . .

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. 33 For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it declared:

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."

In sum, a treaty (such as the UN Charter) may neither violate nor change the meaning of the Constitution. The UN, in other words, may not in any way usurp the authority of Congress (or the president) to decide when and in what circumstances the U.S. goes to war.

Tom goes on to cite several other court cases that support his interpretation, signing off by proclaiming the case closed. Tom and Brian may well turn out to be right, but I respectfully submit that the case is hardly closed just yet. Though Tom mentions a number of cases, he neglects to mention that the case law isn't really all that conclusive, since a number of cases have been decided in exactly the opposite direction. In Milliken v Stone (1927), the Supreme Court was asked to consider whether treaty obligations required allowing a British shipping company could continue to ship liquor into the United States during prohibition (the case was dismissed for standing). More directly, in Missouri v. Holland (1920), the Court ruled that a set of regulations that had previously been found unconstitutional was permissible when reenacted in almost identical form pursuant to a treaty with Great Britain. Indeed, the possibility that treaties might override the Constitution is real enough that in 1952, Congress attempted to enact the Bricker amendment. Money quote:

Section 1. A provision of a treaty which conflicts with any provision of this Constitution shall not be of any force or effect. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.

Section 17 of Peter Suber's The Paradox of Self-Amendment has a detailed discussion of treaties and the constitution. The book is now out of print, but it's available online here.

The proper interpretation of the Supremacy Clause, then, is at least still an open question. Citing case law is unhelpful as the case law cuts both ways. Really, though, I'm not so terribly sure that the legal question matters since there is a more fundamental difficulty with the line that Brian and Tom are pushing. Here's Tom again:

In ratifying the Charter, the Senate essentially surrendered a good chunk of (if not all of) Congress's constitutional authority to declare war. . . . In other words, if the U.S. were to abide by the letter of the UN Charter (as interpreted by the Security Council, not Congress), the president and Congress would be prevented from taking actions that they judge to be in the best interest of Americans. That, it seems to me, vitiates the Framers' intent, which was to place the decision about going to war in the hands of the elected representatives of the people of the United States -- and certainly not in the hands of foreign powers.

And Brian:

I do not believe it is within the power of the US government to cede sovereignty, as the sovereign power is merely delegated to the US government and resident in fact within the people of the United States. Cession of sovereignty would require, as I have mentioned above, a referendum or process at least on par with the original Constitutional Convention, and not simply on a 2/3rds vote of the Senate. Treaties in this sense are like laws, which do not surrender sovereignty but are in fact instantiations of it.

To this point, I quite agree. It is not at all within the power of the U.S. government to cede sovereignty, mainly because I'm not entirely convinced that nations really count as sovereign in any morally defensible sense. The argument here is pretty complicated; I talk about at least a little bit of that argument in my post on political legitimacy and just war theory. The short version is that all of the various possible justifications for a morally legitimate government either fail philosophically or, to the extent that they are morally defensible, fail to apply to any actual state. To talk about states as sovereign, then, is to talk in terms of legal rather than moral or political definitions. Sovereignty is a legal construct; as such, it can attach wherever we define it as attaching. Sovereignty might belong to the citizens of a state, but it doesn't have to. This whole point, though, is really an aside, and I suspect that Brian doesn't really disagree with my claim that states are not morally illegitimate. Philosophical anarchism is one of the few things I have in common with most of the catallarchs.

More significantly, though, my response to Tom's and Brian's objections--and this is a response that really, I think, applies pretty much throughout their posts, is that his objection contains an unargued assumption: namely, that ceding the right to wage non-defensive wars is tantamount to giving up political sovereignty. It's not at all obvious to me that that claim is true, though. Admittedly, I opened this door by suggesting that perhaps my argument came close to ceding sovereignty. I think, in retrospect, that I want to retract that concession. I know that's sort of bad form, but that's the nice thing about working out one's arguments in the blogosphere before putting them in print in a journal somewhere. So I'll just throw myself at the mercy of the court.

To make sense of this point, we would have to first ask what exactly sovereignty entails. That's a tricky question, and it's one that I'm still trying to work my way through. Indeed, it's a question that is increasingly central to my work in just war theory. Roughly, I would say that my sympathies lie (surprise) with the Mill/Walzer legalist model. Relying on what he calls the domestic analogy, Walzer applies Mill's harm principle to nations; a nation, in other words, is entitled to do as it wishes provided that it does not harm other nations. That principle, I think, pretty much sums the legalist understanding of political sovereignty. States are entitled to do whatever they wish within their own borders. Any state that attempts to impose its will on another state by force commits the crime of aggression.

Anyone who takes the harm principle seriously (or at any non-pacifist who takes the harm principle seriously) holds that force, up to and including lethal force, is permissible in defending oneself from serious violations of the harm principle. Holding to the domestic analogy, we would get a similar right for states; a state will be justified in defending itself against aggression. Just as taking the harm principle seriously entails that I must be permitted to use force to defend myself against egregious violations of the principle, so too would sovereignty (or the international version of the harm principle) entail a right for the state to defend itself from an aggressive state. But nothing in the harm principle entitles me to act aggressively; by extension, then, nothing about sovereignty entitles a state to act aggressively.

I submit, therefore, that it is a strange position to hold that a nation that signs away its right to wage aggressive wars has ipso facto signed away its sovereignty. Sovereignty, after all, never did include the right to wage aggressive wars. Unless we are to give up entirely on just war theory and surrender the entire game to the realists, sovereignty simply can't have the right to wage an aggressive war as one of its essential features.

This response ties in to the legal question as well. Perhaps it really is the case that the Constitution does grant to Congress the right to wage non-defensive wars. Perhaps doing so was the Framer's intent as well. In that case, I say so much the worse for the Framer's intent. These are, after all, the same Framer's who intended that slavery be legal in states that desired it, that women be excluded from the franchise, and that slaves be counted as 3/5 of a person. Such intentions are flatly immoral (or in the interest of avoiding begging the question, carrying such intentions into practice is flatly immoral). To the extent that the Framers enshrined these practices into the Constitution, they assumed powers that no one can legitimately have.

So, too, is the power to wage non-defensive wars. No nation may legitimately possess such a power. Accordingly, that power cannot be an essential part of any meaningful definition of sovereignty. To complain of the U.N. Charter as illegitimately stripping sovereignty from the state is equivalent to complaining that, by passing laws against murder, the state illegitimately strips me of my liberty. Whatever we might think of the state, the fact is that I cannot complain about the state on these grounds. Having never actually had the liberty to murder, the state cannot possibly have illegitimately usurped that power from me.

Abu Ghraib Redux

by Joe Miller

I often joke with my students that I became a philosopher mainly by default; being unable to decide on a major, I chose to enter a field in which where I can discuss everything. We philosophers simply stick "philosophy of" in front of any old noun and christen it a new sub-field. So it's not often that I find myself totally and completely speechless. Yet that's how I've spent the greater part of today after having viewed the newest photos from Abu Ghraib. There are 15 new photos available from the Sydney Morning Herald here. Fair warning: these are pretty graphic.

As some of you might know, this is a topic that I've written about before. Unsurprisingly, the question of the legitimacy of using torture came up rather frequently when I taught at West Point. There was a particular urgency and seriousness to these discussions during those rather tumultuous years (my two-year stint began in August of 2001, extended through the initial formulation of the Bush Doctrine at commencement in 2002, and ended in May of 2003, right around the time that we accomplished our mission in Iraq). Cadets in my classes, like many Americans at the time, were angry and looking to make someone pay for killing lots of innocent citizens. Those of us hired to teach ethics and just war theory to 19 year old yearlings (sophomores) had our work cut out for us. Cadets who hear every day the importance of protecting Americans, completing the mission, winning the battle, and taking care of their troops bristled at the thought that POWs have rights even when they may well know where the bombs are hidden. It's a sentiment that I fully understand; my friend and colleague at West Point, MAJ Bill Hecker, was killed by an IED (an improvised explosive device) last month.

Teaching cadets the wrongness of torture is difficult under the best of circumstances. Teaching cadets the wrongness of torture when the course director for the moral philosophy and just war theory course (now the deputy head of the department) is busy writing a paper that argues for the permissibility of torture on Kantian grounds: nearly impossible. The paper, for the record, was a conceptual nightmare; the justifications offered would have legitimized the torture of almost every officer captured in war. As is often said of Kantian applied ethics, the paper bounced between being too Kantian to be plausible and too plausible to be Kantian. But I digress.

The real problem, as I see it, is that the framework that the Army uses for teaching ethics does not actually rule out torture as being absolutely forbidden. Rather, the Army relies on an Aristotelian model of ethics, one in which virtues are defined according to the needs of the profession (Not that the Army explicitly recognizes the philosophical underpinnings of its ethical framework. Most of the Army's scholarship on ethics comes from social scientists and not from philosophers.) So the virtues of a soldier are those traits that enable a soldier to carry out his proper function, namely, fighting and winning wars. That's not a terrible start for a moral theory.

The problem, as I see it, is that said standard may not actually coincide with things like, well, the Geneva convention. Torture, like other war crimes of the jus in bello (justice in war) sort, is morally wrong on the Aristotelian account because torture typically makes it more difficult to win wars. After all, if my side violates the rules, the other side will too and that's rather obviously worse for me. But consider: suppose that nation A is so much more powerful than nation B that there really is no obvious way that B could ever defeat A. In other words, soldiers from nation B could violate every rule of war, and A would still win. In that case, the soldiers of nation A can violate the rules of war without actually impacting their ability to fight and win the wars of nation A.

The problem with the Aristotelian model, then, lies in its semi-consequentialist nature. The Army's virtue-based model considers some consequences (namely, what character traits will make it easier for soldiers to carry out their function of fighting and winning wars), but it entirely ignores one really relevant set of consequences, particularly in the case of torture. Namely, the Army's model neglects to consider the consequences for the people being tortured. See, torture really sucks for the people being tortured. You end up with things like this:

And that's why I've argued that the Army's Aristotelian model really ought to be replaced with a rule-utilitarian approach. The rule-utilitarian will still consider the long-term effects of torture (i.e., will torture make it more difficult to win wars), but it will also include in the calculation such important factors as how likely it is that the person being tortured really does know something important, or even how likely it is that the person is even guilty at all (something that we don't seem to be all that careful about at Gitmo, say). Rule-utilitarianism will also consider how likely it is that torture will actually work and to what extent we will be able to know the answers to any of these questions in advance. It seems likely to me, then, that the rule-utilitarian will say that, given the difficulty of knowing whether torture will actually work in any given case, it's unlikely ever to be justified in a particular instance. Thus, a rule-utilitarian will establish a simple rule: don't torture.

That's not to say that some act of torture might not at some time be morally permitted, or perhaps even morally obligatory. If we really do have the person who knows where the nuclear bomb is hidden and we really do know that, then yes we probably torture him. But we should torture him knowing that what we are doing is illegal, and we should then expect that whoever did the torturing and whoever ordered the torturing go to prison afterward. After all, torture is serious business and it's a serious wrong. Cracking down on any instance (even if it's a justified instance) helps to ensure that it is not used in situations in which it is not justified (and those will, if we're honest, vastly outweigh the instances in which it is justified).

UPDATE: Salon has published several more photos here. These are particularly graphic (i.e., unlike the Morning Herald photos, these are shown completely unedited.)

Intentions, Suicide, and Utility

by Adam Johnson

In his essay "The ‘Just War’ and The Right of Self-Defense," Frederick Struckmeyer addresses the morality of defensive wars. In this discussion, he brings up and rejects the pacifist stance of Donald Wells who holds the premise that all wars are equally immoral. Struckmeyer’s grounds for dismissing this stance center on the complaint that Wells is offering no real support for the premise that all wars are equally immoral, but instead begging the question and simply pointing out that wars involve killing and destruction – generally on a large scale. Amusingly, my primary complaint with Struckmeyer is rather similar – I find that he simply assumes all wars in self-defense are equally moral, as seen on page five “We have a general right, if not our duty, to defend ourselves as a nation.” My purpose thusly is to reject on utilitarian grounds the claim that all wars of self-defense are moral.

The element of intended consequences must first be examined before addressing the bulk of Struckmeyer’s stance. On page three he states “It is true, especially in the case of nuclear projectiles, that we can only decide whether to use certain kinds of weapons, and not what the human cost – even approximately – will be.” I find this claim to be utter rubbish logically and a moral cop out as well. Essentially what the premise boils down to is ‘we can only decide causes, not effects.” While it is true that one does not in strictest technical sense decide the effects of something, to claim that one has NO control on the effects is absurd. Even with an elementary understanding of the cause-effect relationship is it rather obvious that if you get to pick the causes you also acquire direct influence over the effects. Even if you do not want or like some of the effects of your cause, the fact that your action directly resulted in the effects logically makes you responsible for them. Your primary goal in dropping a nuclear bomb on a city may be to destroy military industrial complexes rather than killing a bunch of civilians and increasing cancer rates for decades, but the results are linked together and there is no way to separate them – choosing to drop the bomb means choosing to destroy the complexes AND killing the civilians. To deny responsibility for effects outside the primary purpose of a cause willingly and intentionally acted upon is a demonstration of ignorance and a wanton refusal of morality at all.

The effects of this premise begin to play out when Struckmeyer gives us a hypothetical scenario on the individual level in order to better elucidate his stance on defensive wars: the situation of a one on one confrontation in which all other options have been exhausted resulting in a binary conflict - kill or be killed. The assumption is of course that we do in fact have the right to kill the other person in this situation, as the other person has seemingly given up his right to not be killed when he attempted to violate the other person’s right to not be killed. However, as we noted in class while discussing pacifism, this is merely a necessary condition for killing and NOT a sufficient condition. Under Struckmeyer’s above-mentioned stance on intentions and effects, this condition does indeed shift from necessary to sufficient as it is a closed system – if the goal is to kill your attacker, and only your goals are under moral scrutiny then nothing else needs to be considered for when you slay your attacker the conflict ends. However, there are other effects that result from the action of killing your attacker. Suppose you know your attacker is the matron of 25 small children and does an excellent job with them (her only error is trying to kill you) and with her dead they too will surely die. Though it is not your primary intention to kill 25 small children when you kill your attacker, you are still responsible for their deaths as it results directly from your actions. Under utilitarian terms, it seems to be the case that the moral obligation in this situation is to let yourself be killed, as acting in self-defense will result in less utility by a large margin.

Obviously, the next step is to extrapolate this conclusion from the individual level to that of wars between states. However, the complexity of the situation increases with the scale. The root of the problem in scaling up is found on page five when Struckmeyer states “While I clearly have the prerogative of taking my own life, or of allowing someone else to take it, I do not have the prerogative where the lives of others are concerned. I cannot compel another man to sacrifice himself…” This makes it rather tricky for a state to have a moral obligation to suicide over self-defense in any situation. If we hold to the premise that an individual’s right to not be killed is only forfeit when they violate or attempt to violate some one else’s right to not be killed (necessary condition – not sufficient), then it is impossible for the state to hold a policy of suicide as it is doubtful that the entire populace has acted in such a way as to forfeit the right to not be killed. Yet, in the case of intelligence gathering (non violent) covert ops, if the agent is exposed there is a certain expectation for him to kill himself even though he has not violated or attempted to violate another’s right to not be killed. Thus the claim can be made that this premise isn’t truly a necessary condition, it is just a really nice to have around condition.

Ignoring the muckiness of that premise for a moment, I’ll argue that there are several situations in context of utilitarianism that individual sacrifice is a moral obligation even if the situation is not a result of the individual’s action. Should an armed grenade land in camp, the individual has a moral imperative to jump on the grenade and kill himself to save his comrades. If a plane is hijacked, it is expected that the passengers intentionally crash the plane rather than allow it to be flown into landmark buildings. Finally, there is of course the classic example of the toddler drowning in a muddy pond and a stranger ruining his new clothes in order to rescue the toddler from certain death. Although this last example obviously does not entail full suicide, it works perfectly well enough to establish the fundamental principles and patterns at work. Something of lesser moral weight is sacrificed so something of greater moral weight can avoid destruction. In all of these situations the loss of the sacrificed is regrettable indeed, however, it is the best choice those contexts.

So then, can we not now apply the above principles to wars between states? It seems to follow it as least possible to have an immoral defensive war. The prime objective may be to defend and survive, but if it results in horrific numbers of civilian loses on both sides you are still morally implicated those deaths. Though it is a somewhat troubling thought, I have argued for and shown situations where it is a moral obligation to commit suicide. Likewise, I have worked around the issue of compelling another to suicide by illustrating certain cases were it is acceptable. Thusly, if fighting a defensive war results in greater loss, destruction, and erosion of quality of life, both long term and short term, than nonresistance resulting in suicide leads to, the apparent moral obligation under utilitarianism is to indeed not wage the war and wait for death should it come. For clarity’s sake, I am not suggesting that all defensive wars are immoral. Indeed, I imagine the overwhelming majority of defensive wars are in fact moral. However, I am arguing that being on the side of defense in war alone is NOT a sufficient condition for being moral right in waging the war, but rather simply a necessary condition instead.

Wells and the “Just War” Revisited

by Kim Morrison

When I chose to read the article by Frederick Struckmeyer, I had no idea that I was going to be dealing with the article on “just war” by Donald Wells again. I knew I had gone in a very different direction with the Wells article than most would have but after reading Struckmeyer’s article I can see now just how different my direction was. When writing my last paper I admit that I had tunnel-vision. I was only tuning in to the parts of Wells article that I understood and ignored most of the other things. Reading Struckmeyer’s article has helped me to see the errors Wells made throughout his article. My objective in this paper will be to examine and discuss some of these errors in more detail.

Unfortunately the major problem Struckmeyer recognizes with Wells’ article is what I used to write a good portion of my last paper, his comparison between medieval and modern warfare. I now see that this comparison, although one I understood to some degree, was greatly biased on Wells’ part. He seemed to present the warfare of medieval times as far less evil and more morally justified than modern warfare. Struckmeyer also points out that Wells seems to believe the whole Just War Theory has become completely useless, or nearly so, when it is applied to modern warfare. Wells basically makes this argument by saying that the type of weaponry used, based on the technology available at the time, is what makes the difference morally between these two time frames. Wells argues that once weapons can be used to shoot at a target that one cannot see with the naked eye, the “justness” of that war becomes questionable. At first I had agreed with him but I have amended my position because Struckmeyer makes a good case against this argument when he mentions the use of cannon and the ancient cross bow. These weapons, although not as accurate or as effective as the ones in modern times may be, were still used against the enemy at distances where hand-to-hand combat was not possible. Apparently Wells and I were both too occupied with hand-to-hand combat and weapons that could kill at close range that we neglected to take into account those ancient weapons which were rather effective at greater distances.

Another argument Wells makes for medieval warfare being more just than modern warfare is the number of noncombatant deaths that he believes has come to grossly outnumber the deaths of combatants. In my last paper I mentioned that in the age of chivalry, deaths of noncombatants were to be avoided whenever possible. I still believe this to be true but I do agree with Struckmeyer when he says that not all civilian deaths were accidental. I am quite convinced that no matter how much time and energy were put into keeping civilians out of a war, the number of combatant and noncombatant deaths, accidental or not, were probably closer than Wells is willing to acknowledge. Struckmeyer uses the severe drop in China’s population (millions of deaths) due to the Mongol invasions to argue that a large number of civilian casualties has always been a part of any war, past and present. Although I agree with him on that point I find it interesting that he chose China as his example because Wells seems to be presenting the European aspect of the medieval period. Did he encounter a problem finding a European example that would have completely put Wells’ argument to shame?

Wells’ pacifist position that all wars are bad and should be avoided at all costs is what creates the most problems in his article. But what else can a pacifist say, right? When all avenues to avoid a war have been exhausted and it seems that a war is still inevitable, what is the morally acceptable thing to do? Surrender, according to Wells. How this is acceptable to him (or any pacifist for that matter) is beyond me. He also seems to believe that even the consideration of fighting a war, no matter what the reason, is morally wrong. How this is possible in modern times when countries have standing armies ready to fight when the need arises is a problem Wells does not readily deal with. (Remember those little green toy soldiers I spoke about in my last paper? Guess what? They’re back.) I suppose he is using good Christian ideology, believing that it is morally right to turn the other cheek and avoid war but in how many situations has that stance been really prudent? As Struckmeyer points out, it is an individual policy that is not easily used as a national policy. Especially for those countries, the United States included, in which surrender itself is rarely, if ever, considered an option. He also does not make a distinction between a defensive and an offensive war. I believe he does not make this distinction because no matter what the reasons are, according to the pacifist viewpoint, war is bad. However, Struckmeyer believes, and I agree, that it is this distinction that makes the difference between a just and unjust war. He states that “…to resist when one’s life or country is threatened is not the same as to kill out of personal (or collective) hatred or vindictiveness,” (p. 53). How a pacifist can argue that surrendering to an enemy could ever be better than defending oneself when attacked is truly bizarre.

Despite the fact that Wells tended favor the medieval war as the lesser of two evils and his pacifistic viewpoint, Struckmeyer agreed with a great deal of Wells’ “just war” philosophy. We must keep in mind, as we are learning in class, that most people are not towards one extreme or the other (totally for war or totally against war). As Struckmeyer observes, “Wells…reminded us that there is an alternative to war,” (p. 55). However, his “wonderful world without wars” can only be realized once we all put down our weapons and open our hearts and our minds to the possibility of a normal life without them.

When I started writing this paper I thought it would be easy since I was referring to an article I had already had experience with. I see now that I still don’t have a firm grasp on the concepts surrounding the JWT. The only thing I am certain of is that the principles of JWT need to be revised to accommodate the changes that have occurred in the manner in which wars are fought. In my opinion, the philosophies behind pacifism and appeasement and the idea that surrender, or at least nonresistance, could ever be better than waging a war are absurd. I suppose my high ideals are the products of being born and raised in a country that can afford to defend itself without worrying about how that is going to be accomplished. No matter what my opinions are or how I came about them the one philosophical thing I can say with any conviction is, “The only thing I know is that I know nothing.” Thanks Socrates.

Political Legitimacy and Just War Theory

by Joe Miller

Let me start by acknowledging that, yes, it is probably bad form to write on an assigned reading before those of you doing papers this week have turned them in. But I'm going to do it anyway. Sorry. You can always say that you had been planning to write just what I'd written but then had to change your topic at the last minute. Maybe you'll even make me feel guilty. More likely you'll just be bullshitting me.

Anyway, I wanted to record a few thoughts on David Luban's "Just War and Human Rights" (JSTOR subscription required). Luban rejects Walzer's legalist model of analyzing state sovereignty (see here for a discussion on the legalist vs. the classical model of JWT). Specifically, Luban argues that political sovereignty is morally bankrupt because it entirely ignores the question of legitimacy; on the legalist view, the most corrupt and oppressive of states has exactly the same political sovereignty as the best liberal democracies. Luban finds it strange to think that sovereignty should protect even heinous abuses of a state's citizens, particularly since justifications of sovereignty are typically supposed to proceed from the rights of citizens to govern themselves.

Luban thus draws an important distinction between nations and states. Nations, Luban argues, are formed by a horizontal contract. States are formed by a vertical contract. The difference between the two types of contracts is the difference between Locke and Hobbes; Lockean contracts are those "by which people bind themselves into a community prior to any state" while a Hobbesian contract is one "by which people set a sovereign over them" (Luban, 167). Horizontal contracts--the Lockean type--bind individuals into a nation. Vertical contracts legitimate a particular state. To talk of a nation-state, then, is to talk of a people who have come together as a nation and then agreed upon a particular sort of government.

The distinction here is important. Luban points out that there are many, many nations. There are, however, far fewer states, for a state can be legitimate if and only if the nation (or more specifically, those individuals who comprise a nation) have actually contracted for that particular form of government. Extremely oppressive regimes, then, are not going to enjoy the mantle of legitimacy. For Luban, though, only states have rights against aggression. It follows, then, that illegitimate regimes lack real political sovereignty. Luban's definition thus opens the door for humanitarian intervention. (That it also opens the door for neocolonialism and empire-building is a problem that he does not seem to consider.)

My worry about Luban's account (and several of you no doubt can see this coming) is that, if consent to a state is our standard for legitimacy and hence for rights against aggression, then it is not so terribly clear that any state has a right against aggression, for it is not at all obvious that any state has a government formed by the consent of the governed. Here I'm once again going to shill for John Simmons' arguments for anarchy (first outlined in Moral Principles and Political Obligations).

Luban has assumed that states are justified when they are the product of a vertical contract, or in other words, when the citizens have consented to the form of government in question. The question that arises, then, is this: if each person must demonstrate some sort of consent to the society, what form does that consent take? For some, that is easy. A naturalized citizen, for example, makes an explicit promise to obey the laws; in taking an oath of citizenship, such a person expressly consents to joining a nation. Similarly, those holding office or joining the military often take oaths which expressly bind them to uphold the Constitution. That act might be construed as an express consent of citizenship. But what about the vast majority of citizens, those who are born in a nation, who receive our citizenship by birth rather than by express choice and who never take an explicit oath of citizenship? How are they to demonstrate their consent. The usual answer here is that such citizens must tacitly consent.

Tacit consent, especially Locke’s version, has been the subject of a number of discussions. Actually, tacit consent first rears its head in Hobbes when he argues, in chapter 14, that “signs of consent are either express or by inference.” Hobbes does not clarify the matter much, nor does Locke, who has nonetheless made significant use of the notion. So the first thing that we should do is to make it clear just what it is that we mean by consenting. First we note that consent is something that is given to the actions of others (I consent to your leaving class early, say). Moreover, consent must be both intentional and voluntary. I cannot, in other words, consent to an action if I do not know that I have consented (so I cannot tell you after the fact that your attending class today counts as your having consented to my cutting off your arm), nor can you consent to an action if I force you to do it (by holding a gun to your head or by threatening your mother).

Tacit consent is thus a kind of voluntary and intentional approval of someone's action, and it is given by remaining silent or inactive. The president of a club who announces that the meeting will be rescheduled unless anyone objects is appealing to tacit consent; when she pauses and no one speaks up, she has received tacit consent to reschedule the meeting. Still, there remains the important question of determining when tacit consent actually has been given. It is here that Simmons is helpful, for he offers five criteria that tacit consent must meet (Simmons pp. 80-1).

1. The situation must be such that it is perfectly clear that consent is appropriate and that the individual is aware of this.
2. There must be a definite period of reasonable duration when objections or expressions of dissent are invited or clearly appropriate, and the acceptable means of expressing this dissent must be understood by or made known to the potential consentor.
3. The point at which expressions of dissent are no longer acceptable must be obvious or made clear in some way to the potential consentor.
4. The means acceptable for indicating dissent must be reasonable and reasonably easily performed.
5. The consequences of dissent cannot be extremely detrimental to the potential consentor.

The problem, of course, is that given Simmons' criteria, there do not seem to be any actions that are undertaken by all citizens such that they might count as giving tacit consent. Simmons considers a number of possibilities (owning property, voting, using government services) and systematically rejects each. If you're looking for details here, read chapters 3 and 4 in Moral Principles. For my purposes here, it is enough to point out that Simmons offers fairly compelling reasons for thinking that no actual state is justified via tacit consent (or via explicit consent either for that matter).

That leaves us in something of a bind. If vertical contracts are required for legitimacy and if legitimacy is required for a state to have a right not to be aggressed against, then it looks as if no state has such a right since it also looks as if no state is legitimate via a vertical contract. In other words, if the set of legitimate states is null, then a JWT that applies only to legitimate states is really rather useless. Still, Luban is right to point out that there is an important moral difference between a liberal democracy, say, and the Taliban. Our JWT should, in some way, take that difference into account. The strict legalist model is unsatisfactory, but it does at least have the benefit of applying to some existing entities.

For the record, most of my research these days focuses on trying to incorporate insights like Luban's into a legalist model of JWT. I'll let you know how that all works out.