David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jack Alan Reynolds
Learn more about PhilPapers
In Andrei Marmor (ed.), Routledge Companion to the Philosophy of Law. Routledge 364 (2012)
The revisionist critique of conventional just war theory has undoubtedly scored some important victories. Walzer’s elegantly unified defense of combatant legal equality and noncombatant immunity has been seriously undermined. This critical success has not, however, been matched by positive arguments, which when applied to the messy reality of war would deprive states and soldiers of the permission to fight wars that are plausibly thought to be justified. The appeal to law that is sought to resolve this objection by casting it as a practical concern, a pragmatic worry about implementation, which while germane to debates over the laws of war, need not undermine our convictions in the fundamental principles the revisionists advocate. This response is inadequate. Revisionists have not shown that soldiers should obey the laws of war, in practice, when they conflict with their other moral reasons – our worries about application remain intact. Moreover, a theory of war that offers only an account of the laws of war, and a set of fundamental principles developed in abstraction from feasibility constraints, is radically incomplete. We need to know how to apply those fundamental principles, and whether, when applied, they lead to defensible conclusions. Only two options seem to remain. Perhaps the revisionists’ arguments for their chosen fundamental principles are sufficiently compelling that we should stick with them, and accept their troubling conclusions – in other words, accept pacifism. Alternatively, we need to revise our fundamental principles, so that when applied they yield conclusions that we can more confidently endorse. Though it does not save the revisionist view from the responsibility dilemma and cognate objections, the appeal to law does raise an important, and previously inadequately theorized, question – or, rather, resurrects a neglected topic, discussed in depth by historical just war theorists such as Grotius and Vattel. There are good grounds for distinguishing the laws of war from the morality of war, and for adjusting the former to accommodate predictable noncompliance, that should not impact on our account of the latter. Nonetheless, I have argued that there are some profound moral insights underlying both combatant legal equality and noncombatant immunity: specifically, we cannot infer from a combatant’s side having not satisfied jus ad bellum that he may not justifiably use lethal force; and other things equal, it is more wrongful to harm a nonliable noncombatant than to harm a nonliable combatant.
|Keywords||Just war theory International humanitarian law law of armed conflict|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
Adil Ahmad Haque (2014). Law and Morality at War. Criminal Law and Philosophy 8 (1):79-97.
Similar books and articles
Jeff McMahan (2010). The Laws of War. In Samantha Besson & John Tasioulas (eds.), The Philosophy of International Law. OUP Oxford
Jeff McMahan (2008). The Morality of War and the Law of War. In David Rodin & Henry Shue (eds.), Just and Unjust Warriors: The Moral and Legal Status of Soldiers. OUP Oxford 19--43.
Jeff McMahan (2006). Killing in War: A Reply to Walzer. Philosophia 34 (1):47-51.
Steven Metz & Phillip R. Cuccia (eds.) (2011). Defining War for the 21st Century. Strategic Studies Institute, U.S. Army War College.
Helen M. Kinsella (2006). Gendering Grotius: Sex and Sex Difference in the Laws of War. Political Theory 34 (2):161-191.
David Rodin & Henry Shue (eds.) (2008). Just and Unjust Warriors: The Moral and Legal Status of Soldiers. OUP Oxford.
Roger Wertheimer (2007). Reconnoitering Combatant Moral Equality. Journal of Military Ethics 6 (1):60-74.
Karsten J. Struhl (2006). Can There Be a Just War? Radical Philosophy Today 2006:3-25.
Hadassa A. Noorda (2012). The Islamic Law of War – Justifications and Regulations. Journal of Military Ethics 11 (1):67-69.
D. Boucher (2012). The Just War Tradition and its Modern Legacy: Jus Ad Bellum and Jus in Bello. European Journal of Political Theory 11 (2):92-111.
Patience Coster (2013). The Ethics of War. Rosen Central.
Uwe Steinhoff (2009). What Is War—And Can a Lone Individual Wage One? International Journal of Applied Philosophy 23 (1):133-150.
Added to index2012-11-27
Total downloads252 ( #9,561 of 1,907,058 )
Recent downloads (6 months)32 ( #24,060 of 1,907,058 )
How can I increase my downloads?