Just War

Authority, Tradition, and Practice

Anthony F. Lang, Cian O'Driscoll, John Williams, Anthony F. LangJr., Cian O'Driscoll, John Williams

• Publisher: Georgetown University Press
• Year: 2013
• Print ISBN: 9781589019966
• eBook ISBN: 9781589016811
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

The just war tradition is central to the practice of international relations, in questions of war, peace, and the conduct of war in the contemporary world, but surprisingly few scholars have questioned the authority of the tradition as a source of moral guidance for modern statecraft. Just War: Authority, Tradition, and Practice brings together many of the most important contemporary writers on just war to consider questions of authority surrounding the just war tradition.

Authority is critical in two key senses. First, it is central to framing the ethical debate about the justice or injustice of war, raising questions about the universality of just war and the tradition’s relationship to religion, law, and democracy. Second, who has the legitimate authority to make just-war claims and declare and prosecute war? Such authority has traditionally been located in the sovereign state, but non-state and supra-state claims to legitimate authority have become increasingly important over the last twenty years as the just war tradition has been used to think about multilateral military operations, terrorism, guerrilla warfare, and sub-state violence. The chapters in this collection, organized around these two dimensions, offer a compelling reassessment of the authority issue’s centrality in how we can, do, and ought to think about war in contemporary global politics.

PART I

The Practice of Authority

CHAPTER 1

The Right to Use Armed Force
Sovereignty, Responsibility, and the Common Good

James Turner Johnson

TWO CONCEPTIONS: CLASSIC AND CONTEMPORARY

THROUGH MOST OF THE HISTORY of the just war tradition, writers on just war, when listing the requirements for just resort to armed force, followed the example of the summary provided by Thomas Aquinas: first the authority of a sovereign ruler; then just cause, defined as retaking that which has been wrongly taken and punishing evildoing; and then right intention, defined negatively as avoiding intentions grounded in personal vice and positively in terms of aiming to secure peace.¹ Here the primary necessity for a just war is sovereign authority; the other necessities named not only follow in precedence but also depend importantly on that authority, for among the responsibilities included in those of sovereignty are determining when there is just cause for resort to armed force on behalf of the political community and maintaining right intention in the use of such force.

This is a conception placed squarely within the frame of an understanding of the ends of good politics. For the medieval writers, these were defined in the terms of the three interrelated “goods” of politics—order, justice, and peace—as taken over from earlier Classical thought by Augustine. The just war conception of sovereign authority reflected the good of political order; the conception of just cause reflected the good of justice within the political community; and the conception of right intention corresponded to the good of peace within that community. More broadly, this understanding also extended to relations between and among political communities, as disorder, injustice, and conflict in one community inevitably affected the well-being of neighboring communities.

There is a marked contrast between this conception and the majority of present-day just war thought. Present-day discussions of the idea of just war commonly give priority to the question of just cause in listings of the requirements for justified resort to force, while at the same time giving less weight to the matter of the authority required for resort to the use of armed force. A well-known and influential example of this is provided by the US Catholic bishops in their 1983 pastoral letter, The Challenge of Peace, and again in their 1993 statement marking the tenth anniversary of this pastoral, The Harvest of Justice Is Sown in Peace.² In both these statements, the listing of the just war criteria begins with “just cause,” followed (in order) in the case of The Challenge of Peace by “competent authority,” “comparative justice,” “right intention,” and three prudential criteria, “last resort,” “probability of success,” and “proportionality.” The listing in The Harvest of Justice also begins with the category “just cause,” but the next two requirements have swapped places, so “comparative justice” comes second; “legitimate authority” is demoted to third, followed by “right intention” and the three prudential criteria, whose order is also shuffled here: “probability of success,” “proportionality,” and “last resort.”

Further stress on the importance of the just cause criterion in both the 1983 and 1993 listings is provided by the definition of “right intention,” not as a distinct moral reference point but simply as having an intention in line with the just cause. No mention is made of avoiding evil intentions or aiming at peace, as in the classic definition of right intention.

In the context of all this emphasis on the importance of just cause, defined and drawn attention to in various ways, the question of the authority needed for just resort to armed force is presented with diminished strength. As noted above, the bishops’ listings demote it to second place in 1983 and to third place in 1993, sandwiching it between the two criteria having to do with justice in 1983 and placing it after both these criteria in 1993. In both cases, moreover, the description of the authority required is formalistic: In 1983, the term used is “competent authority,” defined as follows: “War must be declared by those with responsibility for public order”; in 1993, the term used is “legitimate authority,” defined this way: “Only duly constituted public authorities may use deadly force or wage war.” The issue in both statements is the formal role of the authority as legally defined for the political community in question. It is not clear what either of these formulations means when the referent is the US constitutional system, whereby the authority to declare war lies with the Senate, while responsibility for “public order” arguably lies with the president and the executive branch. The more general language used in 1993, “duly constituted public authorities,” leaves room for the varieties of governmental systems across the world, but it also leaves open the question whether such authorities are national or must be international (e.g., the United Nations Security Council). But in both cases the ambiguity is trumped by the prioritization; what is of first importance is the question of justice, and then it is the role of those holding the appropriate legally defined roles to act accordingly. Their role is reactive. Who makes the decision regarding justice? That is left unclear; but perhaps it is the moralists, or perhaps it is public opinion, or perhaps it is the law itself and the lawyers who interpret it. In any case, the role of the political authority is secondary, reacting to whatever has been determined by the appropriate experts with regard to justice.

The case of the US Catholic bishops is typical rather than exceptional in regard to how justice and authority are treated across a broad spectrum of recent thinking on the justification of the use of armed force. Another prominent example, from a very different source, is provided by the “Six Conditions for Committing United States Military Forces,” the so-called Weinberger Doctrine of 1984, where the first condition is a statement of just cause: “When [use of armed force] is vital to the defense of national or international interests.”³ Other examples abound.

My point in noting the difference in how the role of the requirement of authority is treated in classic and contemporary thinking about justified use of armed force is to suggest that something has been lost in the shift I have described and to argue for the importance of recovering it. The first step in this direction is to trace how the shift took place, the reasons for it, and the implications that followed.

THE HISTORICAL BACKGROUND OF THE CONTEMPORARY CONCEPTION OF THE JUST USE OF ARMED FORCE

The contemporary way of thinking about the justified use of armed force is not simply a recent phenomenon; it has its own deep history, made up of several interlinked elements. First came a shift in the conception of sovereignty, together with an emphasis on the defense of national territory as the primary justifying cause for the use of armed force. A bit later came the rise of internationalism, the idea that disputes between and among states could be ended by the creation of a new international legal and political structure taking precedence over states and their governments. And still later came a conception of modern war as inherently grossly indiscriminate and destructive, leading to the effort to abolish war altogether in relations among states.

The first of these, a shift in the conception of sovereignty, appears fully in the thought of Grotius; here, sovereignty, instead of being understood as associated with the person of the ruler of a political community, was redefined as a characteristic of the community itself, in terms of its geographic borders, its inhabitants, and their “ancient laws and privileges.” Developed as part of Grotius’s intellectual effort to justify Dutch independence from the rule of the king of Spain, this conception became the backbone of the system of international order associated with the Peace of Westphalia, a system based on a state system defined by specific national borders. In the Westphalian system, as in Grotius’s thought, the defense of those borders against intrusion by others becomes the most important justification for resort to armed force, with other reasons (retained by Grotius from earlier just war tradition) reduced to derivative, supporting roles.⁴ Positive international law took shape around this conception, and it is central to the system of international order defined by the United Nations Charter, in which Article 2 prohibits member states from “the threat or use of force against the territorial integrity or political independence of any state” and Article 51 clarifies that nothing in the charter impairs “the inherent right of individual or collective self-defense” against armed attack.⁵ In this context what matters in defining whether a use of armed force is justified or not is whether it defends against armed attack; political authority’s role here is effectively limited to coordinating the defense.

The second development, the push to create a new international structure of government above that of states so as to abolish war, first took shape in the form of the idea of “perpetual peace” developed in the thought of various writers from the early seventeenth to the late eighteenth centuries.⁶ In the nineteenth century the resulting internationalist ideal contributed to the early development of positive international law; and in the twentieth century it took structural form, first in the League of Nations and then in the United Nations. On the internationalist conception the problem of war is understood as arising from the existence of states and competition creating friction among them; the new international system is posited as a form of world order that rises above the selfish interests of states and thus eliminates conflict among them.

The third development, the idea that war in the modern world has become inherently indiscriminate and destructive beyond all possibility of restraint, arose in the nineteenth century in response to two main influences: the growth of large national armies fed by conscription, first in France as a result of the Revolution, and then in other European societies as a result of the Napoleonic wars; and, by the 1860s and 1870s, the appearance of weapons in greater numbers and of more destructive capability than had earlier been the case. These influences came together in the two world wars, and the debates over nuclear weapons from the 1950s to the 1980s (including the contribution of the US Catholic bishops to this debate in The Challenge of Peace) were fed importantly by the assumption that subsequent wars would be fought on the model of these two conflicts.

The effects of all these developments are still very much in evidence in both thought and institutional form. At the same time, both the systems of moral thought and the international institutional system built on them have introduced problems of their own. The international system in both its institutional incarnations, the League of Nations and the United Nations, has proven unable to play the superstate role envisioned by the most ardent internationalists, and the importance of well-governed and robust states has reasserted itself since the end of the Cold War and in the face of international terrorism. The aggressor-defender model for the only proper use of force by states has turned out to be problematic in the face of conflicts involving nonstate actors, forms of aggression that are not military in nature, and new awareness of the importance of a role for armed force in reacting to heinous violations (often by ruling authorities within a society) of basic human rights. These problems suggest the importance of again looking closely at the conceptions of sovereignty, just cause for resort to force, their interrelation, and their bearing on the possibilities for peace in traditional just war thinking.

THE IMPORTANCE OF SOVEREIGN AUTHORITY UNDERSTOOD AS RESPONSIBILITY FOR THE COMMON GOOD

By contrast to the sort of recent just war thinking described above, in the idea of just war as it originally came together in the Middle Ages and continued into the early modern period the requirement of sovereign authority held first place. The difference between these two ways of thinking about justified resort to armed force is more than accidental or random; which of these two moral requirements has first priority is an essential part of the associated conception of just war, including what that conception intends to say about the role of the use of armed force in relation to political order and the practice of government and who are understood as the proper interpreters of the just war requirements. The nature and importance of this difference has drawn no particular attention among present-day just war thinkers, possibly because the current way of listing the defining requirements of just war fits well within the modern international system, but also perhaps because this way of thinking allows the moralists to take the role of judging when force is justified, with those in charge of governing given the secondary, pro forma role of acting on whatever has been determined to be just according to the judgments of the moral experts. The traditional or classic understanding of just war, by contrast, puts the focus on the sovereign ruler of each political community as the final repository of responsibility for the good of that community and for the nexus of relations among communities that serves to protect and reinforce the good of all. Here the responsibility to govern is understood as moral in character; it is to serve the good of the community for which the sovereign, and only the sovereign, has overall responsibility. Hence, on this conception, the idea of just war is not merely procedural or formal but also serves to establish that only the sovereign has the right to resort to armed force and thus has a monopoly on the use of such force within the political community or on behalf of that community in relations with others. Putting the requirement of sovereign authority first means both that the sovereign is the one who must judge whether...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Introduction: The Just War Tradition and the Practice of Political Authority
• Part I: The Practice of Authority
• Part II: Authority in Practice
• Part III: The Triumph of Just War?
• Conclusion: Reclaiming the Just War Tradition for International Political Theory
• Contributors
• Index