Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, January 28, 2005

Just War as Principled Imperialism

By Rob Vischer

Steve at Southern Appeal has weighed in our just war discussion, taking issue with my objection to the "imperialist" potential of an expanded just war understanding:

Maybe I am missing something here, but it seems to me that there is nothing at all improper or immoral about embracing such imperialism. Indeed, IMHO, [such a] view is wholly consistent with the Church's "just war" teaching. I suspect that Professor Vischer's concern that Professor Garnett's defense of the Iraq War under the Just War doctrine would justify a "whole range of imperialist motives for warfare" is grounded in a false premise--i.e., that all cultures or civilizations are to be afforded some amount of diplomatic deference, no matter how morally bankrupt they may be. I say this because Vischer posits in his most recent post that "[i]f we substitute our conception (noble as it is) of the citizenry's well-being as a basis for invasion, haven't we fundamentally altered the just war inquiry?"

I think not.

Whatever flaws the American Republic may have as a result of straying from its Judeo-Christian principles and those articulated in our founding documents, the fact remains that these principles are more than just "noble," they are grounded in truth (as is the Church's "just war" teaching).

Read the entire post here.  There are also some interesting comments over at Open Book regarding our discussion.

Rob

Provoke Radio

By Rick Garnett

A student of mine told me about this radio program and website, "Provoke Radio," which might be of interest to MOJ readers.  The program is hosted by Fr. Stephen Spahn, S.J., a pastor in Washington, D.C., who has this to say about the show:

We thought, “wouldn't it be great if there was a program that discussed critical social issues not merely from a pundit's perspective, but from a religious perspective?” Yes, religion - that part of us we aren't always comfortable talking about, yet admit to its crucial importance in our lives. So, we created Provoke radio - intended not only as a forum for reflection, but reflection from the vantage of faith. As you listen to Provoke and visit the website, we invite you to do so from the distinct perspective of your own religious tradition. We'll illustrate how the principles we all embrace - principles found in every religion and culture - can be lived out in every day life. Principles as basic as the Golden Rule, compassion, equality, justice, and a conviction that each individual person has inherent, God-given dignity. Standing on this common ground, we then thought, “Wouldn't it be great if we not only engage people in an exploration of real issues, but offer practical ways to get involved? Wouldn't it be great if we provoke people not merely to thought and reflection…but to action?” To that end, at the close of every show, we mention area programs - faith based and secular, advocacy and outreach - which are in need of volunteers and support. In addition, you can consult our website database for a more thorough list of such organizations.

Rick

Just War as "Justice, Order, and Peace"

By Rob Vischer

Reader Matthew Festa looks to an article on just war in a recent First Things, in which James Turner Johnson argues that

Of course, the sovereign has the right to authorize resort to the sword in defense against attack under way or immediately offered; even private persons have such a right. But Aquinas does not build up a conception of defense as just cause on the basis of the private right of self-defense; rather, he builds down from his overall conception of the sovereign’s responsibility for the good of the political community. Insofar as the need for defense provides just cause for public use of the sword, it comes from the responsibility of government to protect order, justice, and peace, not simply from the right to respond to an attacker in kind.

With this understanding in mind, Festa lays out the evidence:

We are working under the assumption that Saddam had no weapons but posed a significant threat to the US. Well, let's look what David Kay said ex post facto concluding that a) there were no WMD but that b) he posed a threat:

1. Saddam, at least as judged by those scientists and other insiders who worked in his military-industrial programs, had not given up his aspirations and intentions to continue to acquire weapons of mass destruction. Even those senior officials we have interviewed who claim no direct knowledge of any on-going prohibited activities readily acknowledge that Saddam intended to resume these programs whenever the external restrictions were removed. Several of these officials acknowledge receiving inquiries since 2000 from Saddam or his sons about how long it would take to either restart CW production or make available chemical weapons.

2. In the delivery systems area there were already well advanced, but undeclared, on-going activities that, if OIF had not intervened, would have resulted in the production of missiles with ranges at least up to 1000 km, well in excess of the UN permitted range of 150 km. These missile activities were supported by a serious clandestine procurement program about which we have much still to learn.

3. In the chemical and biological weapons area we have confidence that there were at a minimum clandestine on-going research and development activities that were embedded in the Iraqi Intelligence Service. While we have much yet to learn about the exact work programs and capabilities of these activities, it is already apparent that these undeclared activities would have at a minimum facilitated chemical and biological weapons activities and provided a technically trained cadre.

The man was a wacko with intentions to jump start his WMD programs again. Containing him impoverished the country and outraged Muslims. I do not think you could protect justice, order, and peace leaving this situation as it was. The man needed to go. . . .

So I guess it depends on what type of "just war" you're into. If you believe -- pace Johnson -- that the classical conception is better, then yes. If you believe[in] the enlightenment just war theory, then probably not.

It still seems to me that a just war conception constrained only by the broad terms of "justice, order and peace" is not much of a constraint at all.  We can't simply rely on the fact that Saddam was an evil force, can we?  The whole point of the just war tradition is to provide categorical limits on war so that we don't rely simply on our own conception of how much better off the world would be if we engaged in a particular war.  What are the categorical limits (not the Saddam-specific justifications) of this "justice, order and peace" just war tradition?

Rob

Thursday, January 27, 2005

A Reader Response to my post on Sr. Joan and the War

By Michael Scaperlanda

"You raise good points at "Mirror of Justice" in discussing Sister Joan Chittister's transparently manipulative column about the Iraq war and how the rest of the world viewed the recent presidential inauguration.

You might also have mentioned that the casualty figure that Sr. Chittister cites ("over 100,000 civilian dead") differs by several orders of magnitude from other figures. The web site "Iraq Body Count," for example, is no friend of the Bush administration, but it pegs the "high" estimate of civilian deaths caused by military action in Iraq at 17,723.

This, of course, is considerably less than the 100,000 figure we got from Sr. Chittister, with(conveniently) no attribution.

While pondering casualty counts in the light of just war theory, it might also help to consider the number of people that Saddam Hussein's regime had killed every month, realizing that for all the instability in Iraq at the moment, coalition forces have indisputably put a stop to that.

Best,

Patrick O'Hannigan"

One further comment:  If I am reading the Iraq body court website correctly, the 17,723 civilian deaths include those who died from U.S. military action and those who have died at the hands of terrorists, including suicide bombers.

Of Acorns and Embryos

By Michael Scaperlanda

Robert George and Patrick Lee have an insightful article entitled "Acorns and Embryos" in The New Atlantis.  In this essay, they critique Paul McHugh's arguments in favor stem cell harvesting of "clonates" and Michael Sandel's arguments in favor stem cell harvesting of embryos more broadly.  Here is a sampling:

"Sandel’s defense of embryo-killing on the basis of an analogy between embryos and acorns collapses the moment one brings into focus the profound difference between the basis on which we value oak trees and the basis on which we ascribe intrinsic value and dignity to human beings. His analogy only makes sense if we reject the principle that all human beings possess equal moral worth—a principle that we assume Sandel wishes to uphold, not reject."

Thanks to The Seventh Age for this link.

Michael S.

Just War as Love for Neighbor

By Rob Vischer

I appreciate Rick's and Michael's responses to my question on just war, but they lead me to rephrase my question:  Can the conflict in Iraq be justified under just war principles without rendering those principles largely useless in terms of their future capacity to establish boundaries on human conflict?

In particular, it seems that the just war tradition is useful to the extent it provides (arguably) objective, ascertainable limits on the conduct of war.  If the stateless forces of terrorism lead us to a shapeless understanding of just war, isn't the whole exercise futile? 

Michael asks whether Iraq's failure to meet cease-fire conditions from the 1991 war may justify the 2003 invasion.  I'm no expert, but that can't be right, can it?  Would just war principles have been satisfied, for example, if the Allies had invaded Germany for falling behind on its WWI reparations? 

Afghanistan seems a clear case where just war principles were met even in the context of terrorism: a state gave support and protection to terrorists who attacked our country and would do so again.  Iraq is different: an evil regime oppressed its own people and added to the instability of an important region.  But where is the imminent threat?  The possibility that American lives might be lost if a certain chain of events transpires seems a questionable trade-off for the certainty that thousands of Iraqi lives will be lost. 

I like Rick's reference to just war as the public dimension of "loving thy neighbor," but that understanding seems fertile ground for justifying a whole range of imperialist motives for warfare.  If we substitute our conception (noble as it is) of the citizenry's well-being as a basis for invasion, haven't we fundamentally altered the just war inquiry?  Maybe we should start talking openly about the morality of such wars, but it seems a stretch to bring them within the just war tradition as it currently stands.  Again, though, I'm no expert, so I welcome others' views.

Rob

Justifying Intentional Killing of the Innocent?

By Rick Garnett

Here (thanks to Larry Solum) is the abstract for a new paper, "The Basis of Moral Liability to Defensive Killing" (yes, that's "to", not "for"), by Jeff McMahan, a philosopher at Rutgers:

There may be circumstances in which it is morally justifiable intentionally to kill a person who is morally innocent, threatens no one, rationally wishes not to die, and would otherwise not die soon. The justification in such a case presumably must appeal to the dire consequences that would ensue if the person were not killed. It is the necessity of averting consequences much worse than a single death that would justify the wrong done to the person killed. In other instances of permissible killing, however, the justification appeals to more than considerations of consequences. It may appeal in addition to the claim that the person to be killed has acted in such a way that to kill him would neither be unjust nor wrong him or violate his rights (assuming that killing him would be necessary for and proportionate to a just or legitimate aim, such as self-defense). In these cases, I will say that the person is liable to be killed. Although I borrow the notion of liability from legal theory, and although much of what I say will be informed by the literature on liability both in criminal law and in the law of torts, my concern in this article is with moral rather than legal liability. Liability, as I understand it, encompasses but is not limited to desert. If a person can deserve to be killed, it follows that he is liable to be killed, but he can be liable to be killed without deserving to be killed. My focus here will be on forms of liability that do not involve desert; I will not consider cases of punitive or retributive killing. My focus will instead be primarily on liability to defensive killing, though I will also consider whether there can be liability to killing that preserves life or prevents harm but is not strictly defensive because the person to be killed is not the cause of the threat to be averted. Liability, of course, also extends to forms of harmful treatment other than killing, but for simplicity of exposition I will focus on moral liability to be killed. Much of what I will say, however, can be generalized, mutatis mutandis, to other forms of harming.

I have not read the paper yet, but I would think it would be of great interest to those who have ever wrestled with the necessity, or "choice of evils", defense in criminal law.  Traditionally, the intentional killing of a non-aggressor could not be "justified", even if the killing was reasonably thought "necessary" to avoid a "greater evil."  The Model Penal Code abandoned this approach, and allows a "choice of evils" defense even in cases that would otherwise be homicide.  What strikes me as intriguing about McMahan's paper (and, again -- I have not yet read it) is the focus on the "liability" of the victim "to" killing, and the claim that a "defensive" killing of one who is "liable to be killed" does not violate that person's rights.  I'd welcome (and appreciate!) the reactions to the paper of any experts or moral philosophers out there . . .

Rick

Just War: Response to Rob

By Rick Garnett

Rob asks, "can we all agree that, if the intelligence accurately revealed (what turned out to be) the absence of WMD, then the just war requirements would not have been satisfied?  In other words, without a good-faith belief that WMD were present, the invasion of Iraq was immoral, right?  On what other basis could the conflict in Iraq possibly be considered a just war?" 

It is not as clear to me as it is to Rob that, absent a good-faith belief in the presence of WMD, the war in Iraq could not possibly be justified.  Now, I'll put aside questions about the relevance of a distinction between a "good-faith belief" that WMD were being developed and a good-faith belief that they were present.  For the sake of discussion, let's just assume that (a) we knew the regime in Iraq had used WMDs in the past; (b) we knew the regime was not cooperating with relevant UN resolutions and inspection requirements; (c) we knew the regime was funding terrorist activities (e.g., suicide bombers in Israel); (d) we knew the regime had killed (and was continuing to terrorize) its citizens by the thousands; (e) we believed that (a)-(d) was the cause not only of unjust treatment of persons, but of dangerous instability in a volatile region; and (f) we believed that (a)-(d) could be remedied through a proportionate, military response.

With the crucial caveats that I'm only a reasonably informed lay person, and not an expert, when it comes to the "just war" tradition; and also that I am not sure that the Iraq war, it seems to me that (a)-(f) above could justify the war.  This is because I do not regard the just-war tradition as commanding a strict presumption against force, or as authorizing force only in cases of self-defense, narrowly understood.  As Paul Ramsey (a Protestant theologican, of course) argued, the "just war" tradition is not an attempt to create a calculus, or set up hurdles, but is instead an effort to think through the public meaning of the commandment of "love thy neighbor."  Accordingly, it seems plausible to me that our obligations of care toward oppressed neighbors in Iraq could justify an invasion aimed at ousting the regime (obviously, such a conflict would need to satisfy other just-war requirements and prudential considerations having to do with right intention and proportionality).

Again, I'm not sure about this, but why would I be wrong?  To put the matter slightly differently, Aquinas required (I think . . .) that for a war to be just, sovereign authority, just cause, and right intention are required.  It is not clear to me that the "just cause" possibilities are exhausted by the "WMD" argument (on which, of course, the Administration relied heavily).  Couldn't (a)-(f) above provide the basis for a "just cause" argument, sounding in Augustine's "tranquilitas ordinis"?

Rick

Just War?: A question from the ignorant

By Michael Scaperlanda

Rob asks:  "On what other basis [besides the presence of WMD tagged for use against the US] could the conflict in Iraq possibly be considered a just war?"  Could the 2003 invasion of Iraq be considered a continuation of the 1991 war with the 2003 invasion caused by Saddam's failure to meet the conditions for cease fire?  I don't know the answer to the question or whether, even if the answer is yes, such a move satisfies the just war criteria.  Any thoughts?

Michael S.

A Just War . . . Well, on Second Thought

By Rob Vischer

Two years ago Michael Novak offered this defense of the Iraq war, and it largely turns on the assumption that Saddam Hussein possessed weapons of mass destruction, and that he desired to use those weapons against the United States.  There's certainly a debate as to whether the presence of WMD would satisfy just war requirements, but I'd like to clarify a different point.  Can we all agree that, if the intelligence accurately revealed (what turned out to be) the absence of WMD, then the just war requirements would not have been satisfied?  In other words, without a good-faith belief that WMD were present, the invasion of Iraq was immoral, right?  On what other basis could the conflict in Iraq possibly be considered a just war?

Rob

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