It is several hours into the stand-off. Two gun-toting bank robbers have barricaded themselves in a downtown bank, along with a single hostage. Visibly desperate, one robber shouts out to the police that he intends to kill his hostage, holding a gun to her head. Two police snipers report to the police commander that they have clear shots just as the second robber raises his weapon toward the hostage. The commander authorizes the shots, and both robbers are killed.
Traditionally, under the criminal law, this situation raises few issues. The police exercised a justified use of force. However, had the criminals opened fire and killed a hostage or a police officer, they would be criminally liable. For Professor Jeff McMahan, this asymmetry in treatment of police and criminals represents an important correspondence between the criminal law and morality.
McMahan finds it troubling that the modern law of war fails to reflect this correspondence with morality, particularly in the fact that combatants in war are treated symmetrically, that is without reference to the moral justification of a combatant’s cause. McMahan discussed this divergence between the law of war and the morality of war with the Law & Philosophy Workshop.
McMahan explained that under the existing law governing the conduct of war (jus in bello), the equality of combatants derives loosely from the principle that those who pose a threat to others have no right against being attacked in self-defense. But, McMahan argued, the underlying moral principles are simply not true. It is not the case that one becomes liable to a defensive attack merely by posing a potential threat to your attacker. The police would often be liable to attack from criminals under such a principle. McMahan argued that one only forfeits the right not to be attacked by being morally responsible for an unjust threat. A combatant that takes up arms in self-defense or defense of innocents does not sacrifice the right not to be attacked. If the police sniper shoots, but misses, the criminal does not have a new moral license to start shooting at the police.
So why can’t the law of war look more like the criminal law?Why can’t we easily slot combatants into white-hat and black-hat roles in quite the same way we do with criminal law?The primary obstacle, as McMahan sees it, is that it is very difficult for people in general—much less those involved in a particular conflict—to determine whether a given cause is just. What is needed is twofold. First, we need better law regarding when war is morally justified (jus ad bellum). Within the present international system, the rule is simply that war is only legal if authorized by the United Nations or is in explicit self-defense against aggression. For McMahan, this “crude” rule does not capture the complexity of the moral use of force, and thus leads to confusion and frequent circumvention of the legal regime.
Second, to avoid requiring every combatant to be a moral philosopher, we need some type of authoritative judicial body that could interpret a refined law governing the commencement of armed conflict in order to clarify the legal standing of the combatants on either side.
A preliminary question from a workshop participant was to seek McMahan’s account of the principle of state sovereignty. All legal rules are somewhat “crude,” in the sense that they may often be both over- and under-inclusive, but rules generally reflect a practical balancing of competing principles. State sovereignty is one principle that clearly motivates the current jus ad bellum. Certainly, if we are willing to devalue a nation’s right to govern its own territory, then the problem of interventionist war justified by competing moral considerations looks better in terms of morality. McMahan’s view is that state sovereignty has only instrumental value as a doctrine that serves to protect collective self-determination. Where there is a collective that is exercising self-determination, then sovereignty looks like a moral good, but where there is no single collective “self” within a state, the concept of sovereignty becomes a license for a dominant group to control subordinate groups. In these cases, respecting state sovereignty can be inimical to collective self-determination.
A number of workshop questions focused on what type of morality McMahan envisioned by his claim that the law of war should more closely match morality. In his paper, McMahan gives the example of a country with bountiful oil supplies that, nevertheless, is unwilling to sell oil to its neighbor in desperate need. In this situation, though it is the oil-rich country’s right not to sell its oil, the neighboring country might be morally justified in going to war to obtain the oil, even though such aggression would lack a just cause (the oil-rich country would not be liable to attack simply by exercising its right not to sell its oil).
To many at the workshop, this explanation looked particularly consequentialist (that is, roughly, a moral view motivated by results rather than rights). McMahan’s response was a helpful description of what he termed “non-absolutist deontology,” by which he meant a morality based on rights and entitlements that are durable, but not absolute. The distinction being that where a consequentialist finds the final results of a given action determinative, a non-absolutist deontologist like McMahan finds consequences unpersuasive at the margin; only a high threshold of extremely bad consequences can serve to override the entitlement flowing from rights. This is why a national catastrophe might morally justify an aggressive war, but a situation where that the benefits of aggressive war only marginally outweigh the costs would not serve as a moral justification for aggression.
One virtue of the deontological view is its ability to account for innocence and non-innocence. To return to our bank robbers, where a consequentialist finds it difficult to explain why killing two robbers to save one hostage amounts to a positive consequential outcome, the deontologist explains the outcome on the basis of the robbers’ forfeiture of rights through their culpable actions.
A final line of questioning focused on the practicality and administrability of McMahan’s proposed judicial solution. While a judicial authority might seem to provide clear answers, are there good reasons to think that such an institution would be able to provide more legal, factual, or political certainty than the current disaggregated system where networks of NGOs, United Nations instrumentalities, and individual nations perform this function in a less structured way?In essence, could we be confident enough in any such institution such that its determination of a difficult global-political question could be treated as a better answer than competing accounts from other voices in the international arena?
McMahan emphasized on the first front that we would need more robust law for any court to hope to reduce legal uncertainty, but that with better-defined principles, courts are generally able to develop and refine law through common-law processes. Certainly, a court with authority to issue final, binding answers to a realm of legal questions could eliminate legal uncertainty. However, many would argue that the more a court is asked to apply general principles in lieu of clear rules, the more we might worry about the factual and political uncertainties. The solution to these remaining uncertainties was met with more skepticism from workshop participants. With respect to facts, McMahan argued that courts often develop a factual record through the adversarial process, though a court of war might need access to its own fact-finding resources to resolve disputed factual issues. Finally, with respect to political uncertainty, McMahan was explicit that such a court would have to be independent from states, and could not be composed of agent-representatives of individual states. Analogizing to the International Committee of the Red Cross, McMahan suggested that such a court would likely have to develop its authority organically through competence rather than through political coalition building.