Abstract
Many just war theorists (call them traditionalists) claim that just as people have a right to personal self-defense, so nations have a right to national-defense against an aggressive military invasion. David Rodin claims that the traditionalist is unable to justify most defensive wars against aggression. For most aggressive states only commit conditional aggression in that they threaten to kill or maim the citizens of the nation they are invading only if those citizens resist the occupation. Most wars, then, claimed to be justified by the traditionalist fail to meet the proportionality criterion. Thus, a just war, for Rodin, is best conceived of as a punitive war of law enforcement, not as a war of national-defense. I argue that Rodin does not have a case against the traditionalist. If national-defense is a disproportionate response to conditional aggression, then punitive war is a disproportionate response as well. Furthermore, the belief that punitive war is a proportionate response to conditional aggression underscores the traditionalist’s view that self-determination, cultural identity and the like are of sufficient value to defend by means of lethal force. I end the paper by very briefly sketching an account, different from that of Rodin’s, of how individual nations can be justified in waging wars of law enforcement.
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Notes
In this paper I will sometimes use the terms ‘state’ and ‘nation’ interchangeably. These terms are of course not synonymous. For my purposes, I can ignore the otherwise important differences between nations and states.
I should note that, I am following Rodin and not distinguishing between a state (or nation) and the soldiers (armies) of that state (or nation). So, to be attacked by (or to attack) a state just is to be attacked by (or to attack) the soldiers (army) of that state. Furthermore, I am assuming along with Rodin, that the soldiers of an aggressive nation are responsible for their aggressive conduct. For more on the responsibility of soldiers, see McMahan (2006).
Article 2(4) in the UN Charter states that, ‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.’ Article 51, which outlines an exception to this general prohibition against using military force, claims that ‘Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nation.’
The idea here is the right of self-defense is extended to include the protection of other people.
It is important to note here that this conception of ND does not view the state as analogous with an individual person, as if the state has the right to defend its own ‘life’ in the same way that an individual has the right to defend her own life. Rodin addresses this view and rejects it (Rodin 2002, pp. 141–162). I suspect he is probably right, but his argument does not have any bearing on this paper.
For Rodin and Norman, taking away a people's self-determination and common way of life is not to enslave them. Aggressive states seek to take away certain liberties, but not to the extent of making slaves out of those whom they have conquered. Also see Norman (1995, pp. 120–156).
From here on out I will be assuming that aggression committed by a state will be conditional aggression.
Punishing criminals is but one aspect of law enforcement. Other important aspects include deterring as well as apprehending criminals either in the act of committing a crime or after they have done so. While Rodin claims that a justified war against aggression is one of law enforcement, his emphasis is on punishment.
Rodin is apparently open to hearing arguments for conceiving of national-defense in terms of something other than self-defense. See Rodin (2004, p. 93). But, for now, his view is that the best way to justify war is in terms of law enforcement.
It is controversial whether or not states in a state of nature (and for that matter, individuals who are in a state of nature) have the authority to punish. Locke, of course, defended the claim that individuals in the state of nature have the right to punish. See Simmons (1991). I think Rodin could offer more by way of argument for why states don't have this authority. For my purposes in this paper I will be assuming that Rodin is correct on this count.
For Rodin's discussion of impartiality and the authority to punish, see Rodin (2002, pp. 173–179).
I take Rodin to be saying that a war waged by a legitimate international law enforcing body against aggression is to be called (conceived of as) a punitive war rather than a defensive war.
Rodin uses the terms maiming and killing to describe the act of war.
Though, the police in an effort to apprehend the mugger could draw their weapons and order him to stand down. And perhaps, if (and only if) the mugger were to try and escape after such an order, they could open fire on him. But, if these were to happen, and assuming it was justified, the shooting would be a means to maintain order; it would not be a means to punish him.
For a discussion on retribution and consequentialism with regards to the law, see Murphy (2006, p. 46, pp. 51–52).
Roughly speaking, the act of defensive war, if successful, contributes to international stability in that it eliminates a belligerent state from the world scene. This act of war may or may not deter other states from engaging in aggression.
For clarity's sake I should point out that the traditionalist at this juncture is not within her rights to claim that any defensive war against conditional aggression automatically meets the proportionality condition for a Just war. The traditionalist, rather, is within her rights to claim that a defensive war is not automatically disproportionate. For example, an aggressive nation, on account of its conditional aggression, may be liable to defensive lethal military force. However, such a lethal response by the victim nation may wind up killing a tremendous amount of harmless civilians and causing excessive damage. Here is a defensive war against conditional aggression that is disproportionate, but not for the reasons outlined by Rodin.
My claim in this section is that the notion of stopping international crime in progress can justify a victim nation in warring against its conditional aggressor. It is important to note that what makes a victim nation's military response to conditional aggression proportionate is strictly speaking the fact that the danger to be avoided—e.g., the loss of political independence—is sufficiently high to warrant the victim nation in employing military force. I am not claiming that what makes a victim nation's military response to conditional aggression proportionate is the egregious wrongdoing of the aggressive nation. This makes it sound like the victim nation is justified in punishing the aggressive nation. Again, using force to punish criminals is but one aspect of law enforcement. Other important aspects include deterring as well as apprehending criminals either in the act of committing a crime or after they have done so.
References
Fletcher, George. 1998. Basic concepts of criminal law. Oxford: Oxford University Press.
McMahan, Jeff. 2006. On the moral equality of combatants. The Journal of Political Philosophy 14: 377–393.
McMahan, Jeff. 2004. War as self-defense. Ethics and International Affairs 18: 75–80.
Murphy, Jeffrie. 2006. Legal moralism and retribution revisited. Proceedings and Addresses of the American Philosophical Association 80: 45–62.
Norman, Richard. 1995. Ethics, killing and war. Cambridge: Cambridge University Press.
Rodin, David. 2002. War and self-defense. New York: Oxford University Press.
Rodin, David. 2004. Beyond national-defense. Ethics and International Affairs 18: 93–98.
Simmons, A.J. 1991. Locke and the right to punish. Philosophy and Public Affairs 19: 311–349.
Acknowledgment
I would like to thank all the participants in the 2007 Law and Philosophy conference at the University of Stirling (especially Massimo Renzo) for their valuable discussion regarding this paper. I would also like to thank two anonymous referees for their helpful comments.
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Blair, J. Tensions in a Certain Conception of Just War as Law Enforcement. Res Publica 14, 303–311 (2008). https://doi.org/10.1007/s11158-008-9075-x
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DOI: https://doi.org/10.1007/s11158-008-9075-x