A Connected Critic
Can Michael Walzer Connect High-Modernity with Tradition?
Realism and pacifism hold two extreme views on war. Realists reject the validity of morality in war. They believe not only that war may be used to achieve a political end but also that whatever means may be employed to win a war in the most economical way. Pacifists, on the other hand, cling to the moral ideal of loving one’s enemy as oneself. Some radicals among them refuse to kill people, and thus reject war as a means to resolve conflict among states. Realism is a frightening doctrine—it carries with it the omen of death and destruction. The horror and insecurity it provokes become more and more unbearable with the advance of the industrialization of war and the development of increasingly powerful weapons of mass destruction. Radical pacifists propose to dispose of this manufactured risk by abolishing war altogether. By an act of will, they wish to push humanity into a new stage. Perpetual peace, after all, is an age-old hope: swords beaten into ploughs, spears into pruning hooks, and lambs lying beside wolves. The overwhelming majority of people will be more than happy to see its realization. However, war is as imminent in the past as at present. It seems that as long as there are wolves and fools, the wolves can always mobilize the fools to fight. The wolves are, as a matter of fact, beyond human capability to rehabilitate, and the fools, until more extensive and effective education is available, are too numerous. We have wars now, and we will have them in the foreseeable future. Absolute pacifism appears to be a wishful thinking; it can hardly deal with the international political reality. This is why we need rules to regulate war and to limit its scope. I surmise that this is the motive behind Walzer’s reintroduction of the just war theory onto the international scene.
Realism has its theoretical defenders. They argue that the nature of the international order is the anarchy of states. Since states are self-interested and equally ambitious, they are forever competing with each other to maximize their own interests. States are thus always in a tension of war. Yet this does not mean that the international society is permanently chaotic. One state can grow in military power to such an extent that it conquers the weaker states and imposes order on them. As to its equals, the superpower can make a deal with them and establish a period of peace. Realist counsellors regard the anarchy of states as an unchangeable truth, and advise politicians not to take moral rules into their deliberation lest they should wrongly estimate the situation and bring disaster upon themselves and their people. Realists do not necessarily deny the existence of moral rules. They only insist that in the vacuum of a sovereign to impose law and order, the talk of morality just makes no sense.
The anarchy of states, though a modern expression, is an ancient concept. In the West, the historian Thucydides is commonly regarded as the first person to give the idea its full expression. Thucydides was probably upset by the devastation caused by the Peloponnesian War: cities were destroyed, men slaughtered, and women and children deported and enslaved. It was incomprehensible that the Greek cities fought so savagely as if to annihilate each other. The wars could have been less brutal and barbaric, Thucydides believed, if the cities which could not defend themselves against their belligerent counterpart had simply surrendered. It is Thucydides’ insight that the leaders of the besieged city are prevented from reaching such a decision not so much by mis-calculating their combative strength or employing the inappropriate strategy as by indulging themselves in the ideas of right and wrong. They do not know that morality has no place in war, and allow morality to enter into their decision-making. The consequence is the unnecessary destruction of lives and properties. Thucydides wrote down this bloody history to warn future politicians not to commit the same error again.
In modern times, Thucydides’ teaching is expounded by some political theorists such as Hobbes, Machiavelli, and Bodin. Walzer singles out Hobbes, whom he regards as a collaborator of Thucydides: “Hobbes translated Thucydides’ History of the Peloponnesian War and then generalized its argument in his own Leviathan.”1Wars, p. 4. In Chapter 13 Of the Naturall Condition of Mankind, as Concerning Their Felicity, and Misery, thus begins Hobbes his argument: “Nature hath made men so equall, in the faculties of body, and mind….” Equality in human nature is a blessing as well as a misfortune of mankind, Hobbes continues to explain. The bestowed equality drives men to compete with one another by force for scarce resources and to extort honour from the others. Violent competition creates insecurity and fear, which in turn fuels man’s desire to overpower his competitors. Hence men fall into a perpetual state of war. “To this warre of every man against every man, this also is consequent”; Hobbes infers, “that nothing can be Unjust. The notions of Right and Wrong, Justice and Injustice have there no place. Where there is no common Power, there is no Law: where no Law, no Injustice. Force, and Fraud, are in warre the two Cardinal vertues.”2T. Hobbes, Leviathan. Edited with an introduction by C. B. Macpherson, London, 1985, ch. 13. The focus of Hobbes is on the domestic society rather than on the international society. However, the war of men can be translated, by analogy, into the war of sovereigns. Since sovereigns are bigger egos, the competition among states will be more fierce and the tension of war more acute than among individuals.
Force and fraud, Hobbes tells us, are the two cardinal virtues of states. One cannot deny that Hobbes thrust into the limelight some practices of states that people commonly disapprove. We acknowledge their reality, but refuse to accept it as the state of nature. To what extent is Hobbes correct? According to Walzer, “Hobbes gives us an importantly wrong account of political sovereignty; rhetorically inflated and drained of moral distinctions, it nevertheless captures something of the reality of the modern state.”3Critics, p. 193. Force and fraud are certainly at play in the international political arena. But they are not the only currencies in war. Since I have already presented Walzer’s argument against Thucydides and Hobbes, I shall not repeat it again. Suffice it to mention that Just and Unjust Wars collects plenty of historical cases demonstrating that war involves intrigue and military manoeuvre as well as morality. Right and wrong, justice and injustice have their places in war: they serve to condemn fraud and to regulate the use of force. Neither soldiers nor politicians declare that they are beasts by nature and will fight like beasts. When politicians commit aggression and soldiers atrocities, they always come up with excuses—their hypocrisy is “the tribute that vice pays to virtue.” Most noteworthy is the fact that excuses addressed to the public are usually couched, at least partially, in moral language; and that only in the inner circle are Hobbesian wiles propounded, presumably to prepare the accomplices for nasty things.
Walzer has not produced a full-fledged refutation against realism; his aim is to suggest that “the judgment of war and of wartime conduct is a serious enterprise.”4Wars, p. 4. Just and Unjust Wars certainly has accomplished this task. But that is not the whole defence of the book; Walzer actually matches the challenge of realism. The crux of Hobbes’s argument rests not so much on the myth of Leviathan as on the hard choice between defeat by evil and perpetrating an evil that politicians often have to make. Hobbes provides politicians with an easy exit by nullifying the moral judgement on evil acts—“where there is no common Power, there is no Law: where no Law, no Injustice.” To some extent, his theory releases decision-makers from the mental burden of guilt, and allows them to concentrate on the calculation of utility and proportionality. Walzer recognizes that moral rules have to be overridden on some rare occasions, but nonetheless opines that Hobbes’s solution is far too easy in that it does not pay morality its due. What decency requires, in Walzer’s view, is to uphold moral rules to the very last minute. Only in supreme emergency can one override the rules and resort to utility and proportionality.
In opposition to the realist dictum of man as beast, radical pacifists assert that all men are “saints” by nature, and that if they are properly cultivated, they can live in peace with each other. Hence they reject the realist view that competition, fear, and violence underlie all human relations; and they reject as well the just war theory, for it inclines to use violence in the settling of disputes, and thus justifies and promotes violence. What the pacifists contemplate is an enduring peace rather than an intermittent one as offered in the just war prospectus. While the aims of the pacifists converge, their attitudes toward violence differ tremendously: they vary from non-resistance to active intervention without excluding the use of force if necessary. In between there are advocates of non-violent resistance, prohibition of weapons of mass destruction, non-intervention, and non-military intervention. The various factions are grouped together despite uncompromising differences because they all take an active stance on establishing peace on earth.
In the West, the origin of pacifism can be traced back to Christianity. The teaching of Jesus, “love thy neighbour as thyself,” is the kernel of Christianity; it is taken as the summation and consummation of the laws of Moses and the prophets. “But who is my neighbour?” Luke has a Jewish lawyer ask Jesus. Instead of answering him directly, Jesus tells him the well-known parable of the Good Samaritan (Lk 10,25-37). Walzer has a revealing interpretation of the story: “What precisely they owe one another is by no means clear, but we commonly say of such cases that positive assistance is required if (1) it is needed or urgently needed by one of the parties; and (2) if the risks and costs of giving it are relatively low for the other party. Given these conditions, I ought to stop and help the injured stranger….”5Spheres, p. 33. I am quite sure that Walzer is wrong here: though it is not entirely clear what love obliges us to do to strangers, the uncommon parable exhorts us to help strangers even at high risks and at great costs. We have to know that the Samaritan and the injured Jew are enemies because the two countries are hostile to one another. Jesus is actually asking his disciples to love all men, including enemies. The love of enemies as oneself entails serious obligation. Matthew further explains what it means: “[Jesus said], Ye have heard that it hath been said, Thou shalt love thy neighbour, and hate thine enemy. But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you (Mt 5,43-44).” Walzer would probably object by saying that loving your enemies is supererogative. Angels may bear it, but mortal humans will be crushed by it. Love is for angels, and justice for men. If that is the case, will Walzer endorse humanitarian intervention? Walzer does advocate humanitarian intervention, and indeed his attitude has gradually changed from permissive to active intervention.6Cf. Wars, pp. 101-108; The Politics of Rescue, in Social Research 62 (1995) 53-66; The Argument of Humanitarian Intervention, in Dissent 49/1 (2002). http://www.dissentmagazine.org (access 14.03.2002). Of course, he justifies it on grounds other than the commandment of Jesus. This creates an unevenness in his treatment of individuals and communities, and it is possible to confute him by means of reductio ad absurdum. But that is not my purpose. Here I only try to shed light on the reason why Walzer insists on the just war theory, whereas many other Western thinkers, noticeably theologians, endeavour to transcend the concept of just war, and to broach the subject of peace.
Through time, the concept of peace in international relations has been gradually developed in the West. During the Middle Ages, in order to override the commandment of love, war was justified by other religious reasons. A crusade could be declared if it was sacred, commanded by God, and its legitimacy was of absolute certainty. Its criteria can be found in the holy war tradition in the Hebrew Bible. Because of its “holiness” and “righteousness,” holy war is the bloodiest war in human history—the whole population in a city can be slaughtered as animals are slaughtered to appease God in a sacrificial rite. This war is brutal, and the image of God bloodthirsty. Massacre does not fit our moral sense, some people naturally want to turn the holy war into a limited war. Walzer has done that by disparaging the holy war tradition, separating jus ad bellum (the justice of war) and jus in bello (the justice in war), and delineating the limits for each of them.7For Walzer’s discussion of the holy war tradition, see Exodus 32 and the Theory of Holy War. The History of a Citation, in Harvard Theological Review 61 (1968) 1-14; The Idea of Holy War in Ancient Israel, in The Journal of Religious Ethics 20 (1992) 215-228; A Reply to John Yoder, in The Journal of Religious Ethics 20 (1992) 235; and also John Yoder’s response, Texts That Serve or Texts That Summon?. A Response to Michael Walzer, in The Journal of Religious Ethics 20 (1992) 229-234. Such kind of work was in fact initiated by theologians in the thirteenth century. Jurists and philosophers later joined in the discussion. This just war tradition was then developed into international law by Grotius and John Locke in the seventeenth century. The numerous wars that took place throughout the centuries finally cast in doubt its capacity for securing peace. And just before the First World War, French and German theologians attempted to find a new solution, and came together to draft a theory of international peace. Their aim was to leap from the negative peace of the just war theory to positive peace. Unfortunately, their cooperation was shattered by the First World War, during which they split into national partisans and relapsed into using the just war theory to justify their own countries. The unfinished task was resumed by the French and the German in the interbellum period. For some reasons, they could not come to terms with each other, and the project was aborted. It was only after the Second World War that the subject of peace was once again rekindled. The brutality and devastation of the War, especially the area bombing and the explosion of atomic bombs, have strengthened many people’s determination to abandon the just war theory and to develop a theory and praxis of peace. In general, the European intelligentsia is attracted to the vision of peace, but on the other side of the Atlantic, some Americans continue to write about just war theory.
Walzer’s Just and Unjust Wars is a defence of just war theory. According to his own account in the Preface, Walzer writes the book out of his experience as a political activist in the anti-Vietnam War movement. He was grateful, at that time, to have a moral language of war on hand. “Aggression,” “atrocity,” “war crimes,” such words were important for him to express his anger and indignation. The moral language was also a crucial means to rally support and to put pressure on the government. Walzer realized that moral language is as indispensable a tool to condemn hypocrisy as a strategy to wage war. Statesmen always need justifications if they want to send soldiers to risk their lives. Usually, their speeches claim to defend partly national interests and partly moral ideals. The most “ingenious” way is to conflate national interests and moral ideals in such a way that to fight for one’s interests amounts to glorifying God or to bestowing benefit on the whole human race. On the other hand, the pervading opinion in the American academia held that moral language was the expression of feelings devoid of objective reference. Walzer disagrees with them, for he discovers a consistent debate on the morality of war in the just war tradition. He adopts the main structure of the tradition, that is, the distinction between jus ad bellum and jus in bello, but reduces the use of proportionality to the margin.
Just and Unjust Wars hardly pays attention to the misuse of the just war theory and the pacifistic alternative. In its first edition, the book barely contains a seven-page Afterword on non-violent resistance, in which Walzer argues that non-violent defence appeals to the moral sensitivity of the enemy soldiers, and thus its success depends on the rules of restrained military engagement. This argument is far from adequate. A not-unsympathetic critic Thomas Benson comments: “Throughout the book, Walzer reminds us that military measures are really justified only in the absence of non-violent alternatives. Regrettably, he postpones his discussion of such alternatives to a sketchy and altogether unsatisfying ‘Afterword.’ Here he mistakenly equates non-violence with passive resistance and, just as wrongheadedly, argues that the success of non-violent strategies is wholly dependent on an enemy moral earnest. This dismal caricature of non-violence begs for too many important questions concerning the history, methods and strategic potential of non-violent struggle.”8T. L. Benson, Review of M. Walzer, Just and Unjust Wars ([New York, NY, 1977]), in The Christian Century, 25 October 1978, p. 1018. Another critic Brian Orend charges Walzer of failing to face up to the challenge of pacifism: “While Walzer’s response to … realism is strong, his response to pacifism is less satisfying. He admits this, conceding that a full response to pacifism ‘would require another book’ whereas his response is a mere six-page ‘Afterword’, a ‘partial and tentative analysis’ … It is interesting that, since Wars first appeared in 1977, Walzer has chosen not to shoulder the burdens of a full response.”9B. Orend, Michael Walzer on War and Justice (Political Philosophy Now), Cardiff, 2000, p. 69. Orend is correct, even though Walzer has attached a slightly longer (thirteen-page) defence as the Preface to the second edition. This time, the subject has changed from non-violence to the criteria of intervention, but the argument is, still, too brief and too general to be convincing. To straighten out the tangles of the just war theory and pacifism would require another dissertation; I shall only point out one of the most serious challenges to Walzer, namely that the devastation and terror of the modern war compel us to seek positive peace. This would require us to transcend the negative peace in the just war theory by limiting the just cause of war to self-defence, imposing more restrictions on the conduct of war, and engaging in active peacemaking. While Walzer may assent to the common goal, I suspect that he may still regard peacemaking as too idealistic, and insist on taking the just war theory as the framework for international relations.
“Why is it wrong to begin a war?” Walzer asks.10Wars, p. 22. Because to begin a war is to commit aggression. The common answer names the crime of war, but without giving it substantial reasons. Perhaps, most people assume that the devastating consequences of war are the lost of lives and the waste of land, and that those who start it must be held responsible. This notion is taken as a truth by generals and politicians who believe in Karl von Clausewitz’s theory of absolute war, which conceptualizes war as an act of violence that may escalate beyond human control. General Eisenhower, in a 1955 press conference, recounted his experience in conformation to von Clausewitz’s doctrine: “When you resorted to force … you didnn’t know where you were going … If you got deeper and deeper, there was just no limit except … the limitations of force itself.”11D. W. Eisenhower, quoted in Wars, p. 23. We say that the aggressor commits the gravest crime by initiating a swirl of violence that will exhaust itself only after devouring everything within its radius.
But Walzer retorts, “No one has ever experienced ‘absolute war’.”12Wars, p. 24. No matter what we resort to, either this kind of brutality, or that sort of violence, it is chosen out of our free will. We deliberate and calculate its effectiveness and its consequences, and then decide whether to use it or not. We can stop a war at any time by negotiating a term, or never begin it by surrendering at the very beginning. War is a social creation. We intend it to be limited—limited in its aim and limited also in its scope. It is the exaggeration of generals and politicians that war is described as “total” or “absolute.” They distort the fact that is better known to them than anyone else for their own purpose: to rally the support of the masses, to silence dissenting voices, or to excuse the transgression of limits.
If war is limited, those who initiate a war may not be criminals, at least they cannot be indicted on the charge of perpetrating destruction. This is indeed the case, Walzer argues, when two groups of armed contestants choose to fight with each other on whatever terms they agree upon. The battle is certainly fatal, and may as well be brutal. But the initiator is not a criminal; he is probably entitled to the honour of bravery or praised for the promotion of warrior spirit. Tournaments among the aristocratic young men in Africa, ancient Greece, Japan, and feudal Europe are such examples. The celebrated nineteenth-century English writer John Ruskin wrote about a modern ideal war on this model: “creative or foundational war is that in which the natural restlessness and love of contest are disciplined, by consent, into modes of beautiful—though it may be fatal—play….”13J. Ruskin, quoted in Wars, p. 25. No one would say that the organization of a tournament is a crime. Often people are inspired rather than terrified by the chivalric spirit.
A true contest, Walzer stresses, must be fought between equals “by consent.” But war is seldom a sensational game displaying the élan vital and played by young aristocrats out of their own choice. People are conscripted, made into soldiers, and sent to battles. They fight by higher order. They are instruments rather than agents of war. They do not make war, and most of them do not desire war; they are compelled to fight by the superior command of the political leaders, whose true motives will never be communicated to them. The number of people dragged into war is unprecedented in modern times. Two forces mobilize them to enlist in the war industry. Nationalism intoxicates them to mistake national glory and interests for their own. For the soberest kind who is immune from the patriotic frenzy, democracy obliges them “to die for the state.”14M. Walzer, The Obligation to Die for the State, in Obligations. Essays on Disobedience, War, and Citizenship, Cambridge, MA – London, 1970 (repr., 1994), 77-98, p. 77. Sage as wise as Socrates cannot ignore the public, though unjust order, but willingly drinks the hemlock because he believes in democracy and is obliged to obey the decision generated by democratic procedure. Nationalism and democracy have changed the war strategy. It was difficult to find men to die then; it is easy to claim the lives of men and women now. War was to be avoided in the past; but now it can actively be sought as a political means. Napoleon is the first shrewd politician who exploits patriotism to realize his restless political ambition. He once told Metternich that he could afford to lose 30.000 men a month. Although we cannot verify this saying, it is no exaggeration of Napoleon’s strategy. Modern men and women are born with a nationality and a citizenship. They are obliged to defend their own country, and to die if necessary. This modern condition alters the nature of war. When one nation is threatened with war, it is put to it to make hard choices. “The wrong the aggressor commits,” Walzer writes, “is to force men and women to risk their lives for the sake of their rights.” The country under threat can refuse to fight and surrender. However, Walzer says that fighting is always justified, and he opines that “in most cases … fighting is the morally preferred response.”15Wars, p. 51.
We have discussed, so far, a general notion of aggression, in which Walzer tries to connect the crime to the violation of individual rights to life and liberty. More has to be said about how aggression is concretized in law. “The comparison of international to civil order is crucial to the theory of aggression,” Walzer points out.16Wars, p. 58. Thinkers of the international order resort to the “domestic analogy” to construct the international law. There is the civil society, in which laws have been legislated and a relatively stable order is being maintained. By analogical thinking, we can conceptualize the international society as composed of individual member states. Just as individuals in civil society have rights, states also have rights. When these rights of a state are violated, crime is committed against this state. Aggression is the equivalent of the domestic crime of robbery or murder. Hence we can speak of crime, self-defence, law enforcement, trial, punishment, compensation, and so on in the international society.
Walzer calls the primary form of the theory of aggression the “legalist paradigm,” which “does not necessarily reflect the arguments of the lawyers, but consistently reflects the conventions of law and order.”17Wars, p. 61. Underlying the conventions is the cautious attitude to minimize armed conflict both in its frequency and in its magnitude. The legalist paradigm endorses self-defence as the only legitimate cause for the deployment of military forces. This appears to be too restricted to Walzer. He wants to revise it so as to allow some forms of interventions. Nevertheless, self-defence gives the best legitimation and motivation for the use of force.
The legalist paradigm presumes the existence of an international society of states. It only admits states as its members; men and women are represented collectively by their states. There is a law in international society that defines the rights of states, in which political sovereignty and territorial integrity are the most fundamental. Apparently, these two rights are established by extending the individual rights of life and property. A state has the right of self-determination within its own boundary. The crossing of the border is an obvious sign of transgression. Walzer suggests that it is more tenable to think of territorial right in connection with the right of liberty than with the notion of ownership. The ownership of a large piece of land is problematic no matter whether it regards a state or an individual. It is unreasonable for a small population to claim to own a vast uninhabited land and to refuse the people in need to settle in. Territorial right must be related to actual residence and common use. Only then, the infringement of a territory contributes to the violation of independence and self-determination.
Non-intervention is the prime principle in international relations. It is assumed that if each state is left to itself to manage its own affairs, there will be no war between states—though there may be civil war, tribal war, independence war, revolution, or insurgence. This doctrine is not always true, but true enough to merit its observation. Hence a state may violate the two basic rights of its citizens, and yet the legalist paradigm still does not permit intervention by other states. Self-help is the second doctrine that the legalist paradigm prescribes. These two principles sustain an international order of independent states—no state is allowed to interfere with other states by military force. They put restraints on the exchanges among member states, and clear any ambiguity over aggression. When a state sends its army across a border, it violates the territorial integrity and the political sovereignty of that particular state. Its intention is clear, it has no other excuses, and the act is an aggression. Aggression alone can justify war. Still, only two kinds of violence are legitimized: a war of self-defence by the victim and a war of enforcement by the victim or any other state that comes to the victim’s help.
According to Walzer’s interpretation, the legalist paradigm is in favour of violent response to aggression, though the victim can, if it chooses to, surrender its rights to save its lives. Appeasement, which may sometimes be justified in utilitarian calculation, is not endorsed by the legalist paradigm, for it promotes aggression and undermines the existing international order. Unlike domestic society, international society does not have a central authority to enforce law or to uphold order. As it is, international society is vulnerable and fragile, and requires each member state to actively participate in law enforcement. Thus it is morally desirable that the victim state repels the aggressor, or even punishes it so as to deter aggression. The willingness of the international society to crack down on aggression can be seen in the overriding of the self-help principle. In case of aggression, the victim state is not presumed to rely on self-defence. It can call upon the help of allies, or other states can arise to see to it that justice is done. Walzer is an advocate of force resistance to aggression. Without dismissing the justifiability of appeasement, he nevertheless affirms that it is prima facie worth dying for the values that the aggressor attacks. The legalist paradigm, he reasons, presupposes a pluralist world. It is our wish to live with a plurality of communities that are free to shape their own ways of life without external coercion. That wish is often disrespected by powerful men and women, and we have to defend it in order to show how much we value it.18Wars, pp. 59,62-63,67-73.
The defence of rights is the only reason for fighting, hence the legalist paradigm endorses only self-defence and condemns any other kind of war. Walzer definitely agrees with the premise, but at the same time he doubts the accuracy of the legalist interpretation. To him, the morality of war seems to permit some military actions besides self-defence, and the legalist paradigm looks more like a simplification of the moral reality. Thus Walzer tries to revise it so as to make the theory of jus ad bellum match with what people commonly accept as the justice of war. The importance of this task would not be overemphasized when we consider the fact that ambiguity often invites exploitation. If ordinary people think that some kinds of war, which the legalist paradigm prohibits, are just, then politicians may happily put aside the international law and wage war on the ground of common causes. Could we trust the moral judgement of politicians? The upshot, I suppose, will be fairer and safer if the interpretation of morality is left in the hand of scholars than that of politicians.
Walzer sees that public opinions recognize at least four kinds of military engagements, namely, pre-emptive strike, assistance of national liberation, counter-intervention in civil war, and humanitarian intervention.19The four cases of revision that Walzer tries to make are not exclusive; there are other possible permissive military employments. He plainly states: “I cannot exhaust the range of possible revision, for our moral judgments are enormously subtle and complex.” (Wars, p. 73.) Walzer thinks that all these should be incorporated into jus ad bellum, and undertakes to revise the legalist paradigm’s basic principle of non-intervention. The pre-emptive strike is a logical extension of self-defence. Although its admission constitutes a significant revision of the legalist paradigm, it raises no serious objection, for it is commonly accepted that a state threatened with imminent war can take advantage of the situation by striking the aggressor first. The latter three cases, which belong to the category of intervention, are of a different nature, and need to be justified on other grounds.
Walzer deals with the issue of intervention from a deontological viewpoint by connecting political sovereignty and territorial integrity with the individual rights of life and liberty, that is, the former hangs on the latter and is granted for the sake of the latter. The state rights of territorial integrity and political sovereignty, Walzer writes, “derive ultimately from the rights of individuals, and from them they take their force.” He quotes the British international lawyer John Westlake to support his claim, who says, “The duties and rights of states are nothing more than the duties and rights of the men who compose them.” He further interprets Westlake as denying the collective view of society: “for whom states are neither organic wholes nor mystical unions.” The individualist view is assumed by Walzer as self-evident because “when states are attacked, it is their members who are challenged.”20Wars, p. 53. Italics added.
This standpoint is commonly taken up by Anglo-American philosophers. But it seems a bit odd for a sociologist like Walzer to espouse it. Of course, everything in society can be traced back to individuals. Scientists will refuse to stop the reductive process at the individual level: psychologists would like to explain all things as much as possible in terms of carnal impulses and mental complexes; biologists of cells; chemists of atoms, molecules, and reactions; and physicists of mass, energy, and forces. However, it is the claim of sociologists that society can be studied as a separate entity, and should be treated as such if its non-reducible properties are to be respected. “Organic whole” and “mystical union” are the metaphors they use to justify their claim. These metaphors can be ridiculed because they convey a certain sense of mystery. Perhaps, we can demystify them by saying plainly that society has become a far too complex system that can no longer be explained adequately by simply referring to the individual men and women that compose it, and that it deserves an independent treatment. This idea is not unfamiliar to Walzer. In fact, he applies it to the field of distributive justice when he formulates his spheres of justice. If domestic goods can form spheres of their own, I can’t see why the good of political sovereignty should be denied of its sphere.
One can hardly find any explicit explanation of this uneven treatment between international and domestic societies in Walzer’s works. We may attribute the unevenness to the discontinuity, or more harshly, the inconsistency of Walzer’s theory. Walzer separates international justice from domestic justice. He founds the former on universal human rights and the latter on particular shared understandings. This is a practical arrangement, but unfortunately, a theoretically inconsistent one. In view of the fact that Walzer is basically a moral particularist, there are two possible explanations why he interprets the morality of war from the perspective of universal human rights. The first has to do with the prevalence of war codes. Obviously, Walzer intends his just war theory to be universal. Otherwise, its application would be limited. Walzer’s intention is not without support. Evidence can be found in the common opinions of mankind: it is hard to dispute that aggression is universally wrong or that the killing of innocents is commonly condemned. The second explanation is that Walzer wants to elevate deontological reasoning to the primary and push utilitarianism to the secondary. Life, for him, is invaluable. Its value cannot be weighed quantitatively. Two lives cannot be said to be more valuable than one life. Walzer is ill at ease with the calculus of lives in war. Life must be protected, and deontological thinking pays the due respect to life.
It would be oversimplified to say that Walzer’s just war theory is solely deontological. Walzer always bears communal survival and cultural reproduction in mind. He has attempted, though somewhat clumsily, to balance communal integrity against individual rights to life and liberty. “The rights of states,” he says, “rest on the consent of their members.” Then he immediately qualifies such consent as “of a special sort.” But what is the peculiarity of this consent? Walzer has never satisfactorily worked it out. In a few lines, he explains that communal cooperation over a long period of time produces a “common life.” The state has the duties to protect individual life and liberty as well as the common life, and individual lives are sometimes sacrificed to defend the common life if need be.21Wars, p. 54. So common life will sometimes be even more important than individual lives and liberty. Is there any substantial difference between “common life” and “organic whole,” or “mystical union”?
Common life is coercive and “nasty.”22Humanitarian Intervention, § Occasions. People are often unhappy with their common life. They want to change it but find themselves powerless to alter anything. Yet it is still none of their neighbours’ business, Walzer argues, to change it. By referring to John Stuart Mill, he writes, “We are to treat states as self-determining communities … whether or not their internal political arrangements are free, whether or not the citizens choose their government and openly debate the policies carried out in their name. For self-determination and political freedom are not equivalent terms.”23Wars, p. 87. Self-determination, for Walzer, is more important than political freedom. States must respect the right to self-determination, and hence the principle of non-intervention. But non-intervention is not absolute. Walzer says that Mill was then contemplating cases in which self-determination will require intervention. Thus, he thinks that it is fairer to formulate Mill’s self-determination in a Kantian style: “always act so as to recognize and uphold communal autonomy.”24Wars, p. 90. National liberation, intervention in civil war, and state crime against humanity are instances that call for intervention to uphold the principle of communal autonomy. Since the basic argument is no different for the three cases, we will focus our discussion on the more controversial humanitarian intervention.
Invoking the nineteenth-century dictum of international lawyers, Walzer states that humanitarian intervention is permitted, and even morally required, in response to acts “that shock the conscience of mankind.”25Wars, p. 107; Politics, p. 55; Humanitarian Intervention. If a state violates the basic rights of life and liberty of its citizens on a mass scale, it is destroying the self-determination of its people. And if other states intervene to stop its brutality, they are not violating its self-determination. Or, according to the formula of self-determination, states are actually required to intervene so as not only to stop the crime but also to help the community until it can determine its own affairs free from tyrannical violence. In Just and Unjust Wars, Walzer does not appeal to the second argument, though it is a natural deduction from the formula. His reservation probably comes as a result of his adherence to the rule of “in and quickly out.” Community building, however, needs time or trusteeship. In either case, the intervening army has to stay. At first, Walzer did not consider this option. Due to the events in Rwanda, Bosnia, and Kosovo, he now admits that trusteeship is unavoidable if humanitarian aims are to be achieved.26Humanitarian Intervention, § Endings.
What are the acts that shock the human conscience? This is an open question; answers may vary. Perhaps, we may never know beforehand until we are at the moment of shock. Walzer first identifies enslavement and massacre as two incidents, and later enlarges the list to include massive deportation, rape, ethnic cleansing, state terrorism, and contemporary versions of “bastard feudalism.”27Wars, p. 90; M. Walzer, The Moral Standing of States. A Response to Four Critics, in Philosophy and Public Affairs 9 (1980) 209-229, pp. 217-218; Politics, pp. 54,60; Humanitarian Intervention. He does not bother to define them because what happens in former Pakistani territory of Bangladesh, Cambodia, Bosnia, Kosovo, the Caucasus, Uganda, Rwanda, and Sierra Leone, to name but a few, has already given us graphic descriptions of the crimes. Decency requires us to intervene, to stop the crime and to rebuild the country.
Who is responsible for the intervention? And who authorizes it? No one can stand aside, Walzer asserts, every state is responsible for stopping crime against humanity. Preferably, the neighbouring state is to intervene because it understands better the culture and the situation of the state in trouble. It can even act unilaterally without the permission of the United Nations. Though ideally, the intervening state should first obtain authorization from the UN. But, as is the case, the UN is far from ideal: under the strong influence of the great powers, a moral issue is often turned into a political contest, and the final decision may come too late, if not ended in deadlock. In the event of humanitarian disaster, moral opinions are on the side of the intervening state, and it has no need to wait and let atrocities multiply. Walzer is fully aware of the danger that humanitarian intervention may be used to conceal national interests. In such cases, unilateralism may aggravate the suffering of the people already in misery. “Clear examples of what is called ‘humanitarian intervention,’” Walzer writes, “are very rare. Indeed, I have not found any, but only mixed cases where the humanitarian motive is one among several. States don’t send their soldiers into other states, it seems, only in order to save lives. The lives of foreigners don’t weigh that heavily in the scales of domestic decision-making.”28Wars, pp. 101-102. States don’t sacrifice the lives of their soldiers solely to save the lives of foreigners. This is a realistic view of politics. If we want to have humanitarian intervention, we have to accept mixed motives. Every humanitarian intervention has to be judged by its own merit. The “in and quickly out” is a rule that can be used to measure humanitarian intervention. In cases that require long-term stay, Walzer suggests a coalition of multinational forces, where the private motives of each involving state may be checked.
Walzer tolerates mixed motives. But a complicated humanitarian intervention has its problems too. Without a gain of national interests in sight, a state will not intervene. If it intervenes, its gains must outweigh its costs. This may have two implications: first, it will fight only against a much weaker state, and second, it tends to breach, as much as possible, the rules of war in order to minimize casualties on its own side under the covers of a just cause and public sympathy. Military superiority combines with the principle of maximizing utility may result in heavy civilian casualties, the destruction of vital infrastructures, and the slaughtering of enemy soldiers. The results shock the conscience of mankind as well. All these have happened, and Walzer has criticized them. For a politics-informed ethicist such as Walzer, the revision is a bold move. On the whole, the four amendments are morally sound. Pacifists may not agree with them, but are shy away from producing contradictory argument.
To Walzer’s surprise, it is the interventionists who criticize him for his political conservatism. On the one hand, Walzer wants to uphold the principle of self-determination. On the other, he finds that intervention on behalf of individual citizens is on some occasions morally desirable. The two aims sometimes compete with each other and create a tension between the collective and the individual. The line may not be difficult to draw, but the theoretical justification is a tricky task, which Walzer has obviously not accomplished. Gerald Doppelt exploits the tension between communal integrity and individual rights, and warns that “the language of collective rights furnishes a rhetoric of morality in international relations which places the rights of de facto states above those of individuals.” To him, the former is doing a disservice to mankind: “The concepts of a ‘common life’ and ‘community’ are obscure and have often been employed to mask a multitude of sins.”29G. Doppelt, Walzer’s Theory of Morality in International Relations, in Philosophy and Public Affairs 8 (1978) 3-26, pp. 19,26. Walzer is wrong to use these concepts to limit the rights of life and liberty to enslavement and massacre. The two rights, commonly understood in the liberal-democratic tradition, have broader meaning and diverse implications. Doppelt argues that if political sovereignty is based on the rights of men and women, a state will lose its sovereignty whenever it violates those rights, and any state that intervenes for the purpose of restoring the inherent rights commits no aggression.
Both Doppelt and Walzer permit intervention, and it appears that the crux lies in the scope of intervention allowed. The disagreement in fact goes deeper. Richard Wasserstrom pins down the disagreement to methodology. He is uneasy with Walzer’s preference of the deontological approach to the traditional consequentialism. “At a number of places,” Wasserstrom writes, imitating Walzer’s mannerism, “I find the recourse to a theory of rights unconvincing and unilluminating; at others I find the conclusions suspect and unattractive.” He opines that a “utilitarianism of rights,” that is, “a determination of whether the net enjoyment of those rights would be increased by intervention,” should be used to determine whether a war is just or not.30R. Wasserstrom, Review of M. Walzer, Just and Unjust Wars (New York, NY, 1977), in Harvard Law Review 92 (1978) 536-545, pp. 537,544. Charles Beitz and David Luban locate the difference in the conception of international relations. They point out that Walzer’s mentality still remains in the society of states. Better than the Hobbesians, he preaches the morality of states. But this idea is old-fashioned and cannot cope with the present-day international relations. To say the least, the morality of states is fragile; it slides easily into the anarchy of states, especially at the time of war. Indeed, the anarchy of states is always present in the morality of states—a fact that Walzer admits and wrestles to accommodate in his theory of just war. Moreover, the sovereignty of states protects rogue régimes and impedes international distributive justice. A more imaginative conception is needed. Beitz and Luban plead for a “cosmopolitan” mentality. “The effect of shifting from a statist to a cosmopolitan point of view,” Beitz writes, “is to open up the state to external moral assessment (and, perhaps, political interference) and to understand persons, rather than states, as the ultimate subjects of international morality.”31C. R. Beitz, Bounded Morality. Justice and the State in World Politics, in International Organization 33 (1979) 405-424, p. 409. With the conviction in the universality of basic human rights, Luban speaks in a firmer voice: “[Basic rights] are no respecters of political boundaries, and require a universalist politics to implement them, even when this means breaching the wall of state sovereignty.”32D. Luban, The Romance of the Nation-State, in Philosophy and Public Affairs 9 (1980) 392-397, p. 392. This statement, though formulated in response to Walzer’s defence, may as well be taken as the summary of Luban’s former article Just War and Human Rights.
In an article, The Moral Standing of States: A Response to Four Critics, Walzer fends off the above-mentioned four critics in a single stroke. This is an ambitious attempt, but in my judgement, an unsuccessful one. His propositions look just right, but his arguments are miserable. The article as a whole is inconsistent, and at some points, terribly conflated and self-contradictory. Walzer simply has not thought through the problem. It is, indeed, a work of poorer quality, if not the poorest, among Walzer’s writings. Perhaps, it is due to the heat of the fray and the stress of immediate response. Or maybe, Walzer was still young when he got caught up in the euphoria of having completed a masterpiece.
The first main point Walzer tries to make is that all the rights of a state are derived from and dependent on the rights of the individuals that compose the political community. In Just and Unjust Wars, states appear to have some rights independent of individual rights, which is in contradiction with the claim that political sovereignty and territorial integrity are ultimately based on the rights of life and liberty. Luban explains this contradiction as a confusion on Walzer’s part that mixes up the horizontal contract with the vertical contract. When people come to live together and develop an intimate relationship, Luban says, they initiate tacitly with each other a horizontal contract, and form a nation. When they elect a government to govern their national life, they, by ceding some communal rights, establish with the governing body a vertical contract. The nation is not the same as the government. Governments change hands rapidly, but nations endure. If a government violates the basic human rights of its subjects, it nullifies the contract and renders itself illegitimate. An attack on an illegitimate government is not an attack on the nation, and thus does not constitute an aggression. Walzer confuses this distinction, and wrongly identifies the benevolent interventionists with the aggressors.33D. Luban, Just War and Human Rights, in Philosophy and Public Affairs 9 (1980) 160-181, pp. 167-169. Walzer denies this charge. He says explicitly that “there is no ‘vertical’ or governmental contract,” and that the horizontal contract “constitutes the only form of political obligation.”34States, p. 211. If this is the case, how then is he going to explain why tyrannical governments that tramp on the rights of its citizens should be respected?
Two ideas seem to have formed the basis of Walzer’s argument. The first is the Burkeian concept of community. Walzer briefly states that “community rests most deeply on a contract, Burkeian in character, among ‘the living, the dead, and those who are yet to be born’.” The second is the right of culture: “The idea of communal integrity derives its moral and political force from the rights of contemporary men and women to live as members of a historic community and to express their inherited culture through political forms worked out among themselves (the forms are never entirely worked out in a single generation).”35States, p. 211. Both ideas are problematic within Walzer’s theory. But before giving any comment, let me first present his argument as consistently as possible.
“The state,” Walzer clarifies, “is constituted by the union of people and government, and it is the state the claims against all other states the twin rights of territorial integrity and political sovereignty.” In other words, the government can be distinguished but not separated from the people. Since foreigners do not have adequate knowledge of the state and direct experience of its internal life, they are in no position to judge the union between the government and the people. Hence they must take “a morally necessary presumption: that there exists a certain ‘fit’ between the community and its government and that the state is ‘legitimate’.” This presumption is to be doubted and rebutted only by “the rules of disregard” as laid down in Just and Unjust Wars. The second presumption that foreigners have to make is that the members of the state are inclined to resist military intervention. It implies that if a substantial number of citizens are prepared to fight, any invasion will constitute an aggression (because it forces the loyal citizens to risk their lives).36States, pp. 212-213.
Following from the two presumptions, Walzer proposes two kinds of legitimacy for states. “First, then, a state is legitimate or not depending upon the ‘fit’ of government and community.” This is the intrinsic legitimacy of states. A government is elected to forward the cultural life of the historical community. When it fulfils this function, the union of the government and the people can be said to be genuine, and the state legitimate. When it fails, the state becomes illegitimate. Walzer emphasizes that anyone can put forward arguments against illegitimate governments, “but only subjects or citizens can act on them.” For only members have “the right to rebel.” This “right of revolution,” Walzer says, derives from “the tyranny of established governments.” If foreigners intervene to abolish a tyrant or tyrannical government, they violate the people’s right of revolution.37States, pp. 214-215. This is not a very sound reasoning. It would be better to say that the right of culture gives rise to the right of revolution, and that foreigners, who, by definition, do not share that right of culture, have no right to trump revolution by intervention. Second, a state is simply presumed to be legitimate in international society. Foreigners “are not to intervene unless the absence of ‘fit’ between the government and community is radically apparent.” This “presumptive legitimacy,” Walzer admits, “suggests a Hobbesian theory of legitimacy: any Leviathan state that is stable, that manages successfully to control its own people, is therefore legitimate.” He thinks that states should accept this argument. But he does not recommend it to the citizens. Since there are two kinds of audiences—members and foreigners, we must distinguish two kinds of legitimacy and make two kinds of arguments. “The confusion of these two kinds of legitimacy, or the denial of the distinction between them,” Walzer charges, “is the fundamental error of these four writers.”38States, pp. 214-216.
Although I am sympathetic to Walzer’s thesis, I must nonetheless say that the components of his argument are not well connected and that some of them are even contradictory. I will only discuss those that fall on the main line. To begin with, the statement that foreigners are in no position to judge apparently contradicts with the latter statement that anyone can make arguments. They can be rendered into consistency by arguing that foreigners have no right to make judgement, or that their judgement is speculative and inaccurate. But neither case is convincing. The first case Walzer himself has ruled out, for anyone can make judgement about anything. The second case is more plausible: if someone does not thoroughly understand something, he should not advocate his opinion, especially in the matter concerning the life and death of a large number of people. But the distinction that Walzer makes between authoritative and unauthoritative persons is only partially based on knowledge and experience. The crucial qualification is membership. Only members know; non-members know perhaps, but never for certain. This statement is statistically correct. If we randomly select an equal number of members and non-members and quiz them about the relationship between the government and the people of that particular state, members will most probably score a higher mark. However, this may not be true on an individual basis. A foreigner who has studied the local culture and resided in the country for a long period of time may know better than many members. Such a person is in a position to make judgement, to give advice, or at least to weigh the diverse opinions of the locals. He may not have the right or duty to initiate an intervention; but if a revolution does break out, he will certainly do the historical community a favour by rallying other states to help the side that is more culturally correct. If he is prevented from doing so, it is solely because he is not a member of that state.
Why do members have the exclusive right to determine their future and the exclusive duty to realize it by themselves? It seems that Walzer justifies the right and the duty by referring to the metaphorical contract of “the living, the dead, and those who are yet to be born.” The metaphorical contract derives the right of culture, obliges members to change their government by themselves, and forbids foreigners to intervene, even for the basic welfare of the people or for the sake of the local culture. The rights to culture and rebellion are complex rights, which presuppose a combination of some basic rights, and thus cannot be ranked before the basic rights. Walzer would deny the existence of basic rights as he has denied the existence of basic goods in the Spheres of Justice.39Spheres, p. 8. The rationality of his denial is, however, difficult to grasp. A contract of “the living, the dead, and those who are yet to be born” sounds quite mystical. Walzer himself resists accepting any mystical notion about community. To “de-metaphoricalize” the present-past-and-yet-to-be contract, I can only think of cultural tradition. For the liberals, tradition is non-binding, hence the two kinds of legitimacy are theoretically unfounded. Walzer arbitrarily divides one legitimacy into two, and arbitrarily fixes the rules of disregard. At least three of the four critics refute Walzer’s explanation. Beitz argues that Walzer’s communal integrity has nothing to do with non-intervention.40C. R. Beitz, Nonintervention and Communal Integrity, in Philosophy and Public Affairs 9 (1980) 385-391. Doppelt calls his theory “a statism without foundations.”41G. Doppelt, Statism without Foundations, in Philosophy and Public Affairs 9 (1980) 398-403, p. 403. Luban accuses Walzer of being intoxicated with “the Romance of the Nation-State” and leaving suffering people in the cold.42D. Luban, The Romance of the Nation-State.
At the end of our discussion, I must say that I agree with Wasserstrom that Walzer’s recourse to a theory of rights is “unconvincing” and “unilluminating” in his treatment of intervention. (Though it is better than the utilitarianism of rights in jus in bellum.) The curious thing is that I don’t find Walzer’s conclusions “suspect” or “unattractive”; on the contrary, I find them prudent and attractive. I find the four revisions appropriate. I agree that states should be left alone to manage their internal affairs. I accept that the common life is a continual project, and that only members are entitled to shape it. I even contemplate a bit the mystical union of “the living, the dead, and those who are yet to be born.” I think one of the root problems of modern men is the refusal to admit the connection. So, Doppelt is inaccurate to dub Walzer’s theory “a statism without foundations.” There are communities, membership, and cultural traditions. There are members who want to live in an enclosure relatively free from external intervention. These are the social res on which Walzer’s theory grounds.
Luban’s charge is unfair and his expression is extravagant. Walzer is not a defender of absolute self-determination. Just the opposite, he advocates intervention. The question is how to draw the line. Precisely because he does not perceive the world with an a priori romantic ideal, does he try to balance communal integrity with the benefits that intervention may bring. Walzer is realistic in acknowledging that states intervene for mixed motives. He is also realistic to recognize that international society is an association of nation-states (mostly) without a central government. The UN is not yet the governing head. States, for good reason, do not want a higher authority right now. Philosophers may be correct to say that basic human rights are universal. But their enforcement, Walzer points out, requires a local authority. “It is not the case,” he writes, “that one can simply proclaim a list of rights and then look around for armed men to enforce it.”43States, p. 226. Where to find the men and how to organize them are big problems. At present, violence is centralized in the hands of state governments, who are also the only ones responsible for enforcing human rights. Because of their self-interest, it is best, except on some special occasions, to confine a state to act only within its own territory in its enforcement of law. A global authority, which could transcend the self-interest of nation-states, is yet to come. And as long as there is no cosmopolitan authority, Beitz and Luban’s cosmopolitan moral theories remain impractical. It seems to me that Beitz and Luban are more romantic in following Kant’s idealistic conception of international society.
The problem of Walzer’s theory of aggression lies in his grounding of territorial integrity and political sovereignty on the concept of human rights. His attempt to hold the particular and the universal in balance, and the line he draws are prudent. But once the universal is introduced, it would be difficult to stop it at a particular point. Walzer recognizes this problem, and he struggles to check, but unsuccessfully, the rights of life and property by articulating the rights of culture and revolution. Consequently, his theory becomes inconsistent. Nevertheless, there is a way out of this difficulty hidden in Walzer’s arguments.
The first step is to declare that international society has formed a separate sphere independent of the domestic society, despite the fact that the rights of states are derived theoretically from the rights of individuals. Walzer has already hinted at this: “The international standing of governments derives only indirectly from their standing with their own citizens. The derivation is complex because it is mediated by foreigners and because foreigners are not confronted (as citizens are) by a naked government, but by a state.”44States, p. 212. To be more exact, the foreigners are not benevolent philosophers or ordinary people; they are high officials of governments, and powerful men and women. They concern themselves mainly with stability and the balance of power than with the issue of human rights. We really cannot expect the international rules they make would fit in comfortably with a theory of human rights. The morality of the international society is not ideal, just as that of any domestic society is not ideal. We have to accept it as such, and then seek ways to improve it.
Self-determination and non-intervention are the two primary principles of international society. But they are not absolute. Sometimes it is necessary to override them. The rules of disregard cannot be grounded on the rights of life and liberty. Perhaps, they can be grounded on acts “that shock the conscience of mankind.” We respect the sovereignty of a state, and presume the legitimacy of its government, until the government does something that shocks our moral conscience. The decision-making is chasmal rather than continual. After a certain point, we will refuse to accept the legitimacy of a government and permit intervention. Acts that shock the conscience of mankind are intuitive perception, but in no way vague. Human history has given us an overwhelming record of acts that we as decent human beings abhor and would unite together to fight against. Walzer’s use of the casuistic method to locate them is correct. He lays down some cases in his writings. The total number of such acts is of course open to discussion. But it is not Walzer’s intention to give an extensive list of those acts. Thus far, I have outlined a possible theoretical justification of humanitarian intervention. As for national liberation and counter-intervention, along with their rules of engagement, I believe appropriate solutions can be deduced from the principle of self-determination.
The application of deontological thinking in jus in bello is one of Walzer’s major achievements in Just and Unjust Wars. In comparison with proportionality, it gives more consideration and protection to non-combatants. It is a good thing that the lives of innocent civilians should take precedence over military necessity. Most ethicists would agree with that. Maybe this is the reason why few critics have criticized Walzer in the area of jus in bello.45I follow Walzer’s division in putting supreme emergency and nuclear deterrence, which are very controversial, outside the category of jus in bello. Brian Orend is one of the few exceptions. Even then, he praises Walzer’s defence of non-combatant immunity as “eloquent and formidable.”46B. Orend, Michael Walzer, p. 134. Nevertheless, he is uncomfortable with an absolute separation of the two justice of war. He finds Walzer’s arguments questionable and fears that their implications are morally problematic. In a few pages, Orend rebuts every argument that Walzer has made on behave of the soldiers for their innocence of aggression, and concludes that not only should politicians be held accountable, but some soldiers should also bear the responsibility for the aggressive war they have participated.47B. Orend, Michael Walzer, pp. 112-115. His argument is concise and to the point. There seems no need to reiterate the weaknesses of Walzer on that subject. Instead, I will shift the focus from the tension between jus ad bellum and jus in bello to the tension between collectivity and individuality—a tension which Walzer endeavours to balance but fails to formulate consistently in his theory.
It will not be overemphasized to stress the importance of the separation of the rules of war into two categories: jus ad bellum and jus in bello. A just war must be fought with just means, even an unjust one must also be fought with just means. The first case is understandable, whereas the second seems somewhat strange. Why should an aggressor, who first commits the crime of war, be obliged to the rules of war? The answer has to do with the recognition of other people as fellow humans and of a certain civilized way of cohabitation. The society of nations may have quarrel, fighting, aggression, oppression, and even killing among us, but we do not want to make a permanent enemy, least of all to annihilate one another. To live in such a civilized way requires us to fight well regardless of the kind of war we are fighting, be it just or unjust.
Walzer follows accordingly the traditional wisdom in upholding the two sets of war morality. Jus ad bellum is for the decision-makers, and jus in bello for the soldiers. Soldiers should not be held responsible for the unjust war they have fought, but they are held accountable for the acts they have done in the war. These principles are widely accepted and have thus been written into the international law. There seems nothing in dispute. Problems emerge however, when Walzer introduces a new legitimation for the war convention. The division of responsibility was first made not on behalf of the soldiers but on behalf of their leaders. Sovereigns were then thought to have the right to make war. Soldiers had no right to question the legitimacy of superior order. They had the duty to follow order and the right to fight. This reasoning, Walzer points out, is outdated. Since World War I, war-making has been legally banned. On the other hand, the rules of fighting have not been abolished but expanded. Walzer thinks that this is the right direction. Although a war cannot be just on both sides, soldiers on either side can be just if they fight by the rules of engagement. Hence he proposes that soldiers are “moral equals” in fighting a war that is not their volition.48Wars, pp. 36,40-41.
Walzer emphatically makes a strong claim that soldiers should not mistreat enemy soldiers. His reason is not so much that they are fellow men as that these fellow men are not criminals. They are caught in a battle that they would choose to avoid if they could. They are pawns in a tragedy:49Wars, p. 36.
“Armed, he is an enemy; but he isn’t my enemy in any specific sense; the war itself isn’t a relation between persons but between political entities and their human instruments. These human instruments are not comrades-in-arms in the old style … they are ‘poor sods, just like me,’ trapped in a war they didnn’t make. I find in them my moral equals.”
From this point of view, all soldiers are victims of war, and as victims, they should treat each other sensibly by fighting strictly according to the rules.
If the sense of tragedy is real in the trenches and a reflection on it leads to the exercise of restraint in fighting, why doesn’t a deeper reflection result in the refusal of entering into the tragedy of war—that is, why don’t soldiers refuse to fight an unjust war? They can avoid playing their part in the tragedy if they oppose an unjust war and refuse to take part in it. Walzer’s answer is general and self-contradictory. His first response is that soldiers as ordinary folks are “pawns of war.” They are incapable of deciding whether a war is just or unjust, and will follow whatever their political leaders tell them to do because of “their routine habits of law-abidingness, their fear, their patriotism, their moral investment in the state,” or because “they are so terribly young when the disciplinary system of the state catches them up and sends them into war that they can hardly be said to make a moral decision at all.”50Wars, pp. 39-40. Such position seems to deny the moral freedom of ordinary people. But this is not what Walzer intends—he only wants to free them from the responsibility of aggression. So he immediately adds:51Wars, p. 40.
Soldiers are not, however, entirely without volition. Their will is independent and effective only within a limited sphere, and for most of them that sphere is narrow.
What does that limited sphere comprise? The moral knowledge of killing prisoners and innocent people, of raping and looting, in brief, the rules of fighting, but not the rules of making war, thus delimits Walzer. Yet this separation of volition looks too neat and tidy, as if soldiers had lost their sobriety at home but suddenly came to their senses on the battlefield. It is unconvincing, and indeed entirely arbitrary. In most cases, I suspect, ordinary people can distinguish a just war from an unjust one. The examples that Walzer cites to rebut realism, in Chapter I of the Wars, bear witness to the fact that the Greek generals and the people in the assembly of Athens knew that they were prosecuting unjust wars.
“The pawns of war” is not an entirely unappealing idea. For people living in undemocratic countries, they have few options but to comply with the enlistment. Walzer gives a better argument by quoting a soldier in Shakespeare’s Henry V: “We know enough if we know we are the king’s men. Our obedience to the king wipes the crime of it out of us.”52W. Shakespeare, quoted in Wars, p. 39. This is the belief of ordinary soldiers; their training and profession cultivate it. If soldiers are bound to an authoritarian ruler or government, it is unreasonable to blame them for their obedience to the superior order. In many cases, I would agree with Walzer at this point. However, many countries nowadays have a democratic system. Soldiers are citizens, and they have a say in the making of war. They are not subjects of a sovereign but free men and free women. Could Shakespeare’s plea be applicable to them?
Walzer does not entertain this challenge immediately. At the end of his book, he says that democratic citizens are still bound men—they are bound to the democratic system because of their patriotism. As citizens, they are responsible for the decision they make. Nonetheless, we should not blame them for their participation in the war as soldiers. “Why aren’t they responsible as soldiers?” Walzer asks himself in a footnote. “If they are morally bound to vote against the war, why aren’t they also bound to refuse to fight?” “The answer is,” he says,53Wars, pp. 299-300, n.
that they vote as individuals, each one deciding for himself, but they fight as members of the political community, the collective decision having already been made, subject to all the moral and material pressures [that are mentioned above] … They act very well if they refuse to fight … That doesn’t mean, however, that the others can be called criminals. Patriotism may be the last refuge of scoundrels, but it is also the ordinary refuge of ordinary men and women….
Democratic citizens are obligated to fight as soldiers regardless of what options they have chosen. It implies that democracy is not a voluntary association, but a coercive system. Citizens of a democratic society have the right to express their opinions and to cast their votes. But once the majority opinion is confirmed through the established procedure, they have to obey that decision. On the one hand, Walzer praises those who refuse to take part in an unjust war, and argues that democratic society should tolerate conscientious objectors.54Cf. M. Walzer, Conscientious Objection, in Obligations. Essays on Disobedience, War, and Citizenship, Cambridge, MA – London, 1970 (repr., 1994), 120-145. On the other hand, we should not blame those who do take part because patriotism explains everything. Soldiers of a democratic society, to paraphrase the words of the Shakespearean soldier, would say: “We know enough if we know we are the citizens of a democratic society. Our obedience to democracy wipes the crime of it out of us.”
Walzer equates obedience with patriotism, this is both dangerous and misleading. It is dangerous because it endorses, if not promotes, blind loyalty. An example may best illustrate what I mean. Suppose my country called for a general assembly to decide upon a resolution proposing to invade a neighbouring state and to reduce its citizens to subordinate subjects. The resolution was passed by the majority despite my voting against it. So I went along with the decision, fought and won the battle. As a result, my neighbour was suppressed and exploited. I, however, was not responsible for their misery because I fought strictly according to the rules and I did not take part in the suppression or exploitation. I don’t know what Walzer’s response would be to this case. I don’t think I could have a clear conscience, nor would my neighbour consider me blameless. The equation is also misleading because it assumes that patriotism is blind. For the love of one’s country, one has to do whatever it commands even though one knows that it is wrong. This is a misunderstanding of love. True love requires one to denounce injustice, especially the injustice done by one’s beloved country, rather than to become an accomplice. I suppose Walzer would probably agree with this, for in his Company of Critics, he has endeavoured to demonstrate that love is an indispensable quality in the enterprise of social criticism.
Patriotism should not be put up as a refuge for wrongdoing. The argument that Walzer puts forward may better be called constitutional integrity. An advanced society is organized on principles. (For simplicity’s sake, let us assume that the society has only one principle.) Its members and its institutions are held together by the principle. In order to maintain the integrity of the society, this principle is taught to the younger generation, repeatedly elucidated in the public, consecrated as a creed, and protected by law. Although the principle is crucial to the coherence of the society, it does not give us a perfect society. When it comes into conflict with other ideas of justice or goodness, we sometimes have to give preference to the principle for the sake of the society as a whole. (Walzer’s spheres of justice looks like a remedy, but in fact, it is governed by the principles of separation and democracy.) Socrates gives us a classic example here. After he was convicted of some unjust accusations by the juries and sentenced to death, Socrates was put in jail where he waited for the execution. As a last effort to save him, his friend Crito came to the jail in the hope of persuading him to accept a plan of escape. Socrates gratefully refused it. The main reason he gave was that his escape would break the constitution of Athens and harm everybody. He was condemned through a democratic procedure, an ideal he had long espoused and defended. If he did not accept now the consequence of democracy, he would violate his own belief, and undermine the integrity of Athens. Hence Socrates chose to drink the hemlock instead of breaking the constitution.55Plato, Crito. Perhaps Socrates should be praised for his principled heroism. Nevertheless, I do not think that constitutional integrity should be protected at any cost and in any case. If a wrong is done to me, it is all right for me to accept it for the common good. But if the wrong is done to the others, I would have great reservation in using the constitutional integrity to justify my compliance, especially in the case of an aggression. But this is not what Walzer opines. He argues that soldiers are always innocent of aggression, and that this principle holds even for Hitler’s generals.
Erwin Rommel, who was one of Hitler’s generals, is renowned for his chivalry in WWII. “He fought a bad war well,” Walzer comments, “not only militarily but also morally.” Rommel is particularly remembered for his courage in insulting Hitler’s vicious order. “It was Rommel,” a biographer writes, “who burned the Commando Order issued by Hitler on 28 October 1942, which laid down that all enemy soldiers encountered behind the German line were to be killed at once….” Biographer after biographer praises him for his good conduct in war. Walzer interprets these compliments as the verdict of Rommel’s innocence: “It would be very odd to praise Rommel for not killing prisoners unless we simultaneously refused to blame him for Hitler’s aggressive wars.” Why? “For otherwise he is simply a criminal, and all the fighting he does is murder or attempted murder….” “But we don’t view Rommel that way: why not?” Walzer continues. “The reason has to do with the distinction of jus ad bellum and jus in bello.”56Wars, p. 38. Walzer is right that Rommel is not a murderer, but he is wrong that Rommel is thus not a criminal. Precisely because there are two laws of war, Rommel has to be judged twice. He is innocent in the measure of jus in bello, but he may or may not be a criminal of aggression. His case is complicated, and it is not my purpose here to reach a conclusion. Judging by his intelligence and high ranking in the hierarchy, he probably knew that he was fighting an aggressive war, and that Hitler was prosecuting an evil plan. His participation in the war as a general compromises him in Hitler’s conspiracy. Walzer acknowledges this principle when he writes: “We should expect opponents of the war to refuse to become officers or officials, even if they feel bound to share combat risks with their countrymen.”57Wars, p. 300, n. Rommel is not a murderer, but he may be a criminal of aggression.
Constitutional integrity is not a moral refuge for aggression. Walzer provides an argument for it based on the fact that international law grants soldiers immunity from aggression. But international law is not the totality of morality. A person who is legally blameless may not be morally blameless. Hence to grant moral equality to every soldier is theoretically unsound. It also does not match our moral sense. Sometimes we are certain that the enemy soldiers are criminals—they commit the crime of aggression. I fight according to the rules and refuse to kill prisoners not because they are “poor sods, just like me,” but because they are humans, just like me. My goodness restrains my natural tendency to retaliate. Christians call it “the love of God,” while Confucians name it “the way of heaven.” This understanding may appear to Walzer as supererogative: it is a nature of angels perhaps, but too heavy to be a virtue for men. He attempts to explain the consequence of love in terms of justice—an attempt that is bound to fail. In some cases, my enemies are my moral equals. In others, they are aggressors. But moral equals, and aggressors alike, are to be treated according to the rules. We have no right to punish aggressors privately, just as we have no right to lynch domestic criminals.
Before thorough investigation and formal conviction, soldiers of the aggressive side are only war crime suspects. Justice requires us to judge each and every soldier on an individual basis. Evidence must be brought forward if a charge beyond reasonable doubt is to be established. A summary judgement on the whole invading army is mercilessly unfair. In the battlefield, while the guilt of a soldier is still to be proved, he should have the benefit of doubt, and be assumed innocent. It would be too naïve to call the soldiers of an aggressive army my moral equals. By the same token, it would be crude to label them criminals. The soldiers’ innocence must be assumed unless proved otherwise. But when ambiguity hangs on the status of soldiers in the battlefield, how could they fight justly?
The war convention is the most useful guide. We have inherited a war convention that stipulates the right acts of fighting. We find in it the general conception of war, which is “a combat between combatants” where the specifications of engagement are arbitrary and inconsistent.58Wars, p. 42. In order to form a consistent moral view, these rules of fighting must be subject to revision. Soldiers and generals, statesmen and lawyers, all attempt to interpret and alter them. Philosophers are eager to join in the discussion, and they virtually regard themselves as the mentors of the other participants. They think that they can give the best account of the war convention, and can instruct the others to make the hard choice under duress. Actually the theologians are the traditional teachers of warfare morality, and the reasoning they devise is a combination of double effect and proportionate reasoning. Modern English philosophers take over the Scholastic methodology and modify it into their utilitarianism. The result is an ethical (or rather pseud-ethical) reasoning flexible enough to accommodate politics and to cope with modernity’s demand for novelty. Walzer, however, does not appreciate the utilitarian flexibility in the morality of war: “With regard to the rules of war, utilitarianism lacks creative power.”59Wars, p. 133.
How can a flexible way of thinking that opens traditional morality to novelty be uncreative? Walzer’s answer is that it is so flexible or permissive that it tells us nothing about the moral restraint on fighting except the economy of force. He quotes Henry Sidgwick, who is said to be the most sensitive utilitarian, as an example: “In the conduct of hostilities, it is not permissible to do ‘any mischief which does not tend materially to the end [of victory], nor any mischief of which the conduciveness to the end is slight in comparison with the amount of the mischief’.”60H. Sidgwick, quoted in Wars, p. 129. Sidgwick’s two prohibitions can be translated into the following positive principles:
The first principle is far too lax: almost any planned act of force can be called legitimate. The second principle intends to impose a restraint on the first, but in practice, it proves difficult to measure the destruction of war, or to compare it with its effectiveness. The overall moral restriction it prescribes is minimal—it prohibits aimless, ineffective, and excessive employment of force. In the end, there is not much difference between the utilitarian ethic of war and military strategy. Indeed, any tactics instructor will teach his cadets to aim at their targets as accurately as possible and to carry out the action in the most effective way. The utilitarian argument can in no way help us understand the complex rules that we have imposed to limit the violence of war. Not only that, it “sets the interests of individuals and of mankind at a lesser value than the victory that is being sought,” Walzer charges.61Wars, p. 129.
Although the indictment is stated without comprehensive argumentation, I think Walzer is right. The value of life is fundamental to the Judeo-Christian culture. “Thou shalt not kill” is the first principle that we have to observe. Sometimes we have to kill people, but only for the protection of life. Moreover, we can only kill the persons who are directly related to the crime. In the case of war, we may not be able to avoid harming innocent people, but we are responsible to reduce their risk. The utilitarian formulae concern more about victory and the effectiveness of war than the lives of innocent people. To correct its mistake, Walzer re-emphasizes the value of innocent life by defining the legitimate targets in detail. Here we will only extract some general principles instead of going into the complication.
The war convention divides people into two main categories: soldiers and civilians. Soldiers are legitimate military targets, whereas civilians are not. Bearing arms and intending to harm, soldiers are dangerous persons. It will not be wrong to shoot at such hostile men as a kind of self-defence. When soldiers are captured and disarmed, or wounded, their dangerousness is neutralized, and thus they are granted immunity from attack. Now, Walzer wants to extend the last rule to include soldiers who are not in the state of fighting. He cites war memoirs to show that it is wrong to shoot at unalert enemy soldiers. Soldiers testify that killing an enemy soldier not in a state of inflicting harm is like committing murder. The reason is that soldiers are first and foremost human beings who happen to become fighters, often unwillingly. They take up the role of soldiers, but they never give up their humanity. If they do not intend to harm me, it is wrong for me to kill them. This is a high standard. It is not an option, though. Walzer argues that it is a moral duty of soldiers to observe this rule.
Modern warfare has extended the attack on soldiers to civilians. This trend has become almost impossible to reverse because of the industrialization of war. Today’s military operations depend heavily on the production lines, which provide them with munitions and other supplies. If these lines are cut off, a battle can be won and ended quickly. Those who work in factories producing weapons, ammunition, equipment, and subsistence necessities are mainly civilians. An attack on these production sites or transportation routes will inevitably harm these civilian workers. Is this not a violation of the civilian immunity principle? Walzer makes a compromise by further dividing civilians into two groups. In a modern state, the various sectors of the society is highly integrated. When the state goes into war, the government can direct the whole society to work for the war effort. So everyone who contributes to the fighting can be counted as a legitimate target. Consequently, the whole working population becomes a military target. If this is the case, then every war will be a total war. In order to limit the destruction of war, Walzer distinguishes those who make weapons for the soldiers from those who feed their bellies. “When it is militarily necessary,” he says, “workers in a tank factory can be attacked and killed, but not workers in a food processing plant.”62Wars, p. 146. The former group manufactures weapons that make the soldiers dangerous. They are “munitions workers,” and “partially assimilated” into the army. They are liable to attack when they are working in the factory. But when they leave the factory, they become ordinary civilians again and they regain their immunity. The latter group produces necessities that keep the soldiers alive but not dangerous. Though they work for the army, they are simply civilians, and should not be intentionally aimed at.
Innocent civilians die in war even if every precaution has been taken. I drop a bomb on a munitions factory. The factory is destroyed, together with its production workers, administrative staff, cleaning teams, kitchen helpers, and other subordinate workers. My aim is to destroy the factory that produces munitions; the production workers and the administrative staff put their own lives at risk, and it is not my fault to have them killed. But how about the other workers in the factory? Their activities are not directly related to the production of munitions, and they should be counted as ordinary civilians. They die also, innocently, as I bomb the factory. The munitions workers’ relatives are harmed as well as a consequence of my destructive act: parents lose their sons and daughters, women become widows, husband widowers, and children are deprived of parents. They mourn, some of them may plunge into starvation, and some may even die prematurely. All these miseries are the direct and indirect consequences of my act. Could I be innocent of their suffering?
Traditionally, double effect is the method used to justify the unintended physical evil caused by an act. Thomas Aquinas is believed to be the first one to formulate this moral principle. In the Summa Theologiae, Thomas asks himself: Is it legitimate for a man to kill another in self-defence? His answer is affirmative, and he defends his position using the principle of double effect. His argument consists of a general principle, a particular application, and a proviso:63T. Aquinas, Summa Theologiae, IIa IIae, q. 64, a. 7 in corp.
Good intention alone can become a licence for recklessness. To check its misuse and to insure that decision is made with due deliberation, Thomas introduces the idea of proportionality. Although I am not morally responsible for each of the side-effects, I am the cause of them, and thus responsible for them as a whole. When I choose an act as a means to my end, I must make sure that the means must be proportionate to the end. At first sight, the principle of double effect looks like a neat formula for making moral decisions that involve multiple effects. However, we have to be careful and not be misled by its simplicity. Double effect is in reality quite difficult to apply to complicated cases, especially to the fighting of modern wars, where a mass of innocent people will be harmed as unintended side-effects. The trickiest part of the principle is the actus proportionatus fini clause. It is unclear what “proportionate” should mean in the text. People have given different explanations for it. In effect, proportionality only asks for a “commensurate reason,” and imposes an unqualified limitation on the means employed.64P. Knauer, The Hermeneutic Function of the Principle of Double Effect, in C. E. Curran & R. A. McCormick (eds.), Readings in Moral Theology No. 1. Moral Norms and Catholic Tradition, New York, NY – Ramsey, NY – Toronto, 1979, 1-39, p. 5. The article was first published in Natural Law Forum 12 (1967).
Despite its ambiguity, Walzer opines that the double effect is a better moral principle than the utilitarian one. He would prefer to use this principle to resolve the moral issue of non-combatants killed in an attack. He interprets and reformulates it into four rules.65Cf. Wars, p. 153. The first three are in compliance with the Catholic tradition, but the last one is quite unconventional. Walzer interprets the proportionate clause in line of utilitarian thinking, and equates the fourth rule exactly as the two utilitarian principles given by Sidgwick. He then reasons that the proportionality principle does not guarantee that “due care” will be given to the innocent people affected by the side-effects. “The principle of double effect, then, stands in need of correction,” Walzer says. And he proposes as thus:66Wars, p. 155.
The intention of the actor is good, that is, he aims narrowly at the acceptable effect; the evil effect is not one of his ends, nor is it a means to his ends, and, aware of the evil involved, he seeks to minimize it, accepting costs to himself.
The proposal is a good one, though “correction” is probably overstated. Walzer’s argument is that since there is a double effect, there must be a double intention. The actor intends the good effect, and foreseeing the evil effect, he has to intend to minimize it. The second intention is not a new proposal. It is already in the mind of Thomas when he puts forward the constraining principle of proportionality. That principle is meant to minimize the evil effect, though it is not clearly articulated. The principle of proportionality as formulated by Thomas is ambiguous. Later theologians have to interpret and reformulate it. Walzer’s “correction” is one among them. It would be more appropriate to call his proposal a clarification or qualification. The new contribution that Walzer actually makes is the proviso “accepting costs to himself.” It stipulates that the actor must minimize the evil effect in such a way that he has to shoulder a certain amount of risks himself. Exactly how much risks should he take? Walzer cannot specify, though it is sure that soldiers cannot take all of them. Otherwise, they cannot fight. It is equally sure that “due care” must be taken to avoid harming innocent civilians, and that it must be incorporated into the military tactics. There is no better indication of one’s intention of care than taking on some risks oneself.
The war convention delimits the conduct of fighting. Soldiers and politicians sometimes argue that the convention must not be strictly applied. It is said that under the duress of war, or in the event of “surprising military developments,” it will become necessary to disregard the rules and to choose whatever course required to defeat the enemy. Walzer takes this argument seriously and devotes a larger part of Just and Unjust Wars to dealing with this issue. After a careful study of some typical cases, he draws a line between the necessity of victory and supreme emergency. When generals or politicians speak of necessity, they actually speak hyperbolically about the necessity of victory. Not only that they have to win, but also that they have to win in the least costly way. The necessity of victory forces them to set aside the rules and to transfer their due risk and cost of war to the enemy or to a third party. Bethmann Hollweg, the then German Chancellor, expressed this idea frankly in the speech to the Reichstag after the invasion of Belgium in August 1914: “Gentlemen, we are now in a state of necessity, and necessity knows no law. Our troops have already entered Belgian territory.”67B. Hollweg, quoted in Wars, p. 240.
Walzer does not recognize the necessity of victory as a necessity at all. In the first place, fighting does not entail winning, and in the second, it is always wrong to put efficiency before innocent lives. Nevertheless, Walzer does recognize some extreme circumstances which impel the use of extreme measures. He borrows the words “supreme emergency” from Winston Churchill to name such situations. In a debate over the Norwegian neutrality in the early Second World War, Churchill told the Cabinet: “The letter of the law must not in supreme emergency obstruct those who are charged with its protection and enforcement.” Churchill sees Britain as the defender of law and the Nazi Germany as the cunning offender who violates one set of laws and shelters behind another set of laws. Since the victory of the Nazis would mean disaster to both Britain and other European countries, the war against Nazism is a supreme emergency. In supreme emergency, people on the right side, Churchill says, “have a right, indeed are bound in duty, to abrogate for a space some of the conventions of the very laws [they] seek to consolidate and reaffirm.”68W. Churchill, quoted in Wars, p. 245.
The “moral necessity” to defeat the Nazis, Walzer opines, is clear, but Britain was not in supreme emergency when it breached the neutrality of Norway.69Wars, p. 248. Churchill at that time was still confident of the Royal Navy—perhaps he drags the Norwegians into war because the Norwegian waters offer the Navy an ideal terrain to beat the Germans. What constitutes a supreme emergency, according to Walzer, must satisfy two criteria: first, the danger is imminent, and second, its outcome would be unbearable. “Close but not serious, serious but not close—neither one makes for a supreme emergency.” Imminence and seriousness, however, are two qualities seldom agreed upon. Walzer defines imminence as a pressing threat that cannot be diverted without resorting to prohibited means, and seriousness as a kind of “unusual and horrifying” threat to humanity. He pinpoints Nazism at “the outer limits of exigency” and describes it as “evil objectified in the world.” While fighting against the evil, we can use whatever means available, even the killing of innocent lives. Besides the objectified evil, Walzer also circumscribes the “threat of enslavement or extermination” of a nation within the boundary of supreme emergency.70Wars, pp. 252-254.
Nazism was a serious threat to the European nations, but its danger was not imminent in 1939 and early 1940. Britain was then not in a state of supreme emergency. Churchill’s plea was only a political rhetoric. That rhetoric, according to Walzer, became palpable by the summer of 1940: the Nazi army was triumphant, and the British forces felt themselves incapable of hindering its rapid advancement. It seemed that Britain would lose the war if it continued to employ conventional strategy. Britain did not have effective measures to harm the German army, but it had more than enough power to destroy the German civilian population. In November 1940, the Bomber Command was ordered to drop bombs in the centres of German cities. To demoralize the civilians, working-class residential areas instead of munitions factories were designated as the prime targets. This area-bombing strategy was carried out up to the end of the war. As a result, some 300.000 Germans were killed and 780.000 seriously wounded. What is more, the British policy of terror bombing brings further grim consequences: “it was the crucial precedent,” Walzer observes, “for the fire-bombing of Tokyo and other Japanese cities and then for Harry Truman’s decision to drop atomic bombs on Hiroshima and Nagasaki.”71Wars, p. 255. Though accusing the British of committing heinous crimes, Walzer grants them at the same time the right to do so. They are both right and wrong. They are right because they were in supreme emergency and should use the extreme measure to defeat the Nazis.72Walzer points out that after 1942, the Russian and the American forces in the allies “rendered other possibilities open.” (Wars, p. 261.) That means Britain was not in supreme emergency from the summer of 1942 onwards. They are wrong because they killed innocent people. They are right in jus ad bellum, but wrong in jus in bello. The right cannot right the wrong, and the wrong cannot corrupt the right. This is, Walzer says, a dilemma of war.
Walzer lists four different ways to deal with the dilemma of supreme emergency:73Wars, pp. 231-232.
These four approaches can be called, respectively, extreme utilitarianism, sliding-scale utilitarianism, moral absolutism, and utilitarianism of extremity. Sliding-scale utilitarianism and utilitarianism of extremity, Walzer says, are “the most interesting and the most important” because “they explain how it is that morally serious men and women, who have some sense of what rights are, come nevertheless to violate the rules of war, escalate its brutality and extend its tyranny.”74Wars, p. 232. Why is it so? Because it concerns Walzer’s disposition to place morality in the framework of politics. Morality purged of politics is the idealists’ dream, while politics devoid of morality is the misconception of the realists. Walzer claims his argument to be a correction of “the traditional philosophical dislike for politics,” and a rebuttal of the common political insensitivity toward morality.75States, p. 228.
The not so interesting and not so important extreme utilitarianism is a thinking insensitive to morality. Mao Tse-tung, Walzer opines, was a practical man who despised those who honoured war conventions. Winning and efficiency, for Chairman Mao, are the realities of war. When you go into a war, you mean to win it, and the only rule of fighting is efficiency. This is a familiar argument, but it is not a moral one. To add moral force to it, the war has to be said to be a struggle against evil, and so, in comparison with the reign of evil, the atrocity of war can become negligible. In contrast to Chairman Mao, Walzer cites an ancient Sinaean ruler, Duke Hsiang of Sung. The Duke of Sung had the ambition to revive the past glory of his dynasty, and injudiciously went into war with one of the most powerful states Chu. It was an unbalanced fight. The small Sung fought with the great Chu. Even then, Duke Hsiang decided to keep to the rules of his ancestors. Acting against the advice of his general, he twice refused to attack the army of Chu at the critical moment when it had not yet formed its battle lines. Sung lost the battle, and Duke Hsiang was wounded. The people and the ministers blamed the Duke for the defeat. To defend the decision he had made, the Duke of Sung said, “The superior man does not inflict a second wound, and does not take prisoner anyone of grey hairs. When the ancients had their armies in the field, they would not attack an enemy when he was in a defile; and though I am but the poor representative of a fallen dynasty, I will not sound my drums to attack an unformed host.”76The Chinese Classics, Vol. V: The Ch’un Ts’ew with The Tso Chuen, trans. and ed. J. Legge, Oxford, 1893, p. 183. (Duke Hi 22 winter.) Chairman Mao derided the ancient teaching as “asinine ethics,” but Walzer insists that the rules of war cannot be lightly pushed aside, for their essence concerns the rights of innocent people.77Wars, pp. 226,228. Right is not an category in ancient China. The people of China have another word for it: yen (which can be partially translated as love). Chairman Mao might dismiss yen as a useless idealist idea. Apparently, he was right: the Duke of Sung lost the battle and died a few months later, but Chairman Mao ruled up till the very end of his life. Yet history is still waiting to unfold the full impact of the disasters that the people of China will have to suffer.
Moral absolutism might stand for “the traditional philosophical dislike for politics.” Walzer has only a few words against it. Perhaps moral absolutism is too naïve to have any influence among the men and women in politics. Or perhaps Walzer has some sympathy with the absolutists. He simply says, “Fiat justicia ruat coelum, do justice even if the heavens fall, is not for most people a plausible moral doctrine.” “The Duke of Sung was right not to break the warrior code for the sake of his dynasty. But if what is being defended is the state itself and the political community it protects and the lives and liberties of the members of that community….”78Wars, p. 230. The Battle of the River Hung, so it was called, is not as simple as Walzer has it. Duke Hsiang himself is a controversial figure. It is true that the Duke of Sung is fighting for the glory of his dynasty, but his act cannot be justified in the Sinaean context either. His ministers, in fact, stand in the position where Walzer would approve—that is, they stand on the side of the people and charge the Duke of recklessly putting the lives of the people at risk. The Duke answers that he cannot break the principle of yen even for the sake of his own people. In reality, the Duke has already broken the principle of yen by first going into war. Nonetheless, Walzer is right to remind us that fiat justicia ruat coelum is not a plausible moral doctrine for most of the Sung people.
What can ethicists do then, if people are not willing to do justice when the heavens fall? Either they could leave them and let the politicians make up some justifications to rationalize their atrocities. Or, they could find a compromise that is better than the politicians’ justification to lead the people through the hard time. Walzer chooses the second position, and thus sliding-scale utilitarianism and the utilitarianism of extremity would appear to him to be the most interesting and the most important.
Sliding-scale utilitarianism, according to Walzer, is not the right way of mixing morality with politics. Its basic tenet is that the side in the right should be given more chance to win. To improve the chance of winning, it has the right to use some means that the side in the wrong is not permitted to use. “The more justice, the more right,” as Walzer puts it.79Wars, p. 229. Walzer suspects that John Rawls has this idea in mind when he says:80J. Rawls, quoted in Wars, p. 229.
Even in a just war, certain forms of violence are strictly inadmissible; and when a country’s right to war is questionable and uncertain, the constraints on the means it can use are all the more severe. Acts permissible in a war of legitimate self-defense, when these are necessary, may be flatly excluded in a more doubtful situation.
Walzer immediately interprets these lines as: “The greater the justice of my cause, the more rules I can violate for the sake of the cause—though some rules are always inviolable.” It seems Walzer is saying that Rawls is an advocate of sliding-scale utilitarianism. Although Walzer later explains that “Rawls might be taken to mean that borderline cases should be decided systematically against that country whose ‘right to war is questionable…,’” his overall portrait of Rawls is ambiguous and quite misleading.81Wars, p. 229.
Walzer is more convincing when he accuses Churchill of using sliding-scale argument during the Second World War. This is clear in one of Churchill’s speeches:82W. Churchill, quoted in Wars, p. 245.
We are fighting to re-establish the reign of law and to protect the liberties of small countries. Our defeat would mean an age of barbaric violence, and would be fatal, not only to ourselves, but to the independent life of every small country in Europe. Acting in the name of the Covenant, and as virtual mandatories of the League and all it stands for, we have a right, indeed are bound in duty, to abrogate for a space some of the conventions of the very laws we seek to consolidate and reaffirm. Small nations must not tie our hands when we are fighting for their rights and freedom. The letter of the law must not in supreme emergency obstruct those who are charged with its protection and enforcement. It would not be right or rational that the aggressive Power should gain one set of advantages by tearing up all laws, and another set by sheltering behind the innate respect for law of its opponents. Humanity, rather than legality, must be our guide.
Churchill’s argument, Walzer admits, is powerful. Being taken out of context and given a positive interpretation, the argument appears to me to be even more convincing than Walzer’s. Walzer, however, interprets the speech within its context. Britain at that moment was not in supreme emergency, Norway was not the enemy of Britain, and the occupation of Norway did not constitute an immediate factor that would contribute to the defeat of the Nazis. These three facts lead us to the conclusion that Churchill is thinking in terms of sliding-scale utilitarianism. He thinks that Britain is in the right, and that Britain, being the “virtual mandatory” of the League of Nations, has a right, and even a duty, to bring the Norwegians, violating the rule of neutrality if necessary, into line with the Allies.
The main reason that Walzer rejects the sliding-scale utilitarianism is that it annuls some rights which the war conventions intend to protect. “The more justice, the more right” is not a plausible principle for Walzer. It is radically unclear how much justice you have, and how far the scale should slide. The erosion of the war conventions is a serious matter because they are not merely conventions but are laws meant to protect the rights of innocent people. Churchill said that Britain had a right to use the Norwegian waters. That right is a licence to violate neutrality. It may not appear to be so serious in respect of the cause that Britain claimed to defend. But if we look deeper into the matter, that right entails the killing of Norwegian soldiers who go to defend their own country, and the putting of innocent Norwegian civilians into grave jeopardy. Britain has no right to sacrifice the Norwegians to defeat the Germans. The surplus of justice cannot simply be converted into a currency to buy the rights of innocent people.
If the rights of innocent people cannot be eroded, where is the space for political manoeuvre? To achieve this, Walzer suggests that we may abrogate all the conventions “in the face of an imminent catastrophe.” His maxim is: “do justice unless the heavens are (really) about to fall.”83Wars, p. 231. It means that we are by volition moral absolutists, but in supreme emergency, we are forced to become extreme utilitarians. Walzer prefers the chasmal argument to the sliding scale because the former refrains from eroding the rights of innocent people until the very last moment. He further emphasizes that the war conventions cannot be eroded but only “overridden.” Erosion voids the conventions, whereas overriding acknowledges them. The rules are still there, inviolable. We override them only in the face of looming disaster.
In one important respect, Walzer’s utilitarianism of extremity is more extreme than the sliding-scale utilitarianism. Rawls speaks of “certain forms of violence are strictly inadmissible,” and Churchill only asks, at least on paper, “to abrogate … some of the conventions.” But Walzer proposes that in supreme emergency, “the only restraints upon military action are those of usefulness and proportionality.”84Wars, p. 231. I am not sure whether area bombing is inadmissible for Rawls. But if indiscriminate bombing on a massive scale is admissible, I cannot imagine what other kind of violence is inadmissible. However, Walzer endorses the bombing of German cities before 1942. For him, the massacre of innocent people is less unbearable than the triumph of objectified evil. The Bomber Command does right to bomb the German cities, Walzer says. Yet, the decision-maker or the soldier “must be prepared to accept the moral consequences and the burden of guilt that his action entails.”85Wars, p. 231.
It is curious to note that only the statesmen and soldiers directly involved in the actions are held responsible. They commit unavoidable crimes for the common good, and they have to bear the burden themselves, alone. Is it fair? Walzer replies that it is the price of their office. Not a satisfactory answer. To compensate for the unsatisfactoriness perhaps, Walzer unduly exempts the perpetrators from any legal responsibility: “There is obviously no question here of legal punishment, but of some other way of assigning and enforcing blame.” “What way,” he immediately adds, “however, is radically unclear.”86Wars, p. 323. One thing though he knows for sure: that way would be very problematic. The case of the British area bombing will show us the nature of the problem.
Arthur Harris was the commander of the Bomber Command from 1942 to the end of the war. He was named by a British historian as “a giant among the leaders of men.”87Wars, p. 323. After the war, he turned out to be a figure of shame and a man of resentment. Churchill distanced himself from Harris, and let the blame of terrorism fall on Harris and his crew. All his other peers, except himself, received noble titles. At that time not to honour amounts to dishonour. Harris was dishonoured for the ugly service he did for his country. On the one hand, this policy, Walzer writes, “has moral significance and value.” It acknowledges in an equivocal way the wrong Britain has done and its intention to restore the order of law. On the other hand, the policy is “cruel.” Walzer states it as follows: “that a nation fighting a just war, when it is desperate and survival itself is at risk, must use unscrupulous or morally ignorant soldiers; and as soon as their usefulness is past, it must disown them.”88Wars, pp. 324-325. The statement is an inaccurate interpretation of Churchill’s policy. The two clauses “… desperate and survival …” must be crossed out because when Harris took charge of the terror campaign in 1942, Britain was not in supreme emergency. Even if we take Walzer’s statement as it is, the policy is still immoral. Walzer too is uneasy with that policy. He suggests that Churchill might have better ways to defeat the Nazis, or perhaps, Churchill had better told his countrymen plainly the price they had paid for survival. Walzer’s suggestion could not be a plausible one. If Britain had admitted their crimes, how could it have escaped the trial at Nuremberg? Nor is his statement a good one. The policy piles injustices upon injustices, and its architect is a selfish and cunning man.
At the beginning of his critique on Walzer’s doctrine of supreme emergency, Brian Orend writes, it “is one of the most difficult and controversial aspects of his just war theory.”89B. Orend, Michael Walzer, p. 127. I would take out “one of” from the sentence, and add that it is the most daring and damaging aspect of Walzer’s just war theory. Two criticisms will substantiate my opinion. The first concerns the aftermath of committing extreme inhuman violence, and the second the internal reasoning and implications of Walzer’s chasmal argument.
As we have discussed above, the dishonouring of Arthur Harris is not a proper exa