Just War Theory and International Law Enforcement: A Reflective Equilibrium

Article excerpt

Introduction

I once attended a conference at which a philosopher attempted to justify the war against terrorism, particularly the ongoing war in Afghanistan, in terms of standard just war doctrine. He analyzed the use of force by the United States and its allies under each of the more or less commonly accepted jus ad bellum criteria. During the question and answer period that followed, his position was politely yet convincingly refuted. The fact of the untenability of his position led many people to some unsettling conclusions. Some feared that perhaps the war we were waging was unjust. Others worried that just war theory had been shown to be obsolete. Many people felt uneasy at the prospect that we had no consistent theoretical way to justify the war against terrorism. And without the conceptual apparatus to justify the war, the fear is that we may lose our moral bearings as we face this most pressing challenge to our deepest human values.

I believe that our fears are unfounded and that there are deep principles that can and do justify and guide our use of force in the war against terrorism. Just war theory is not obsolete, and our struggle against terrorism is just. The problems of justification have arisen in attempting to apply the just war theory template in inappropriate ways. We are engaged in a conflict that conceptually, in many important respects, resembles law enforcement. But the enemy is so arrayed, armed, and organized, that the forces and tactics required to combat them make our struggle look like conventional war. Hence, at times the appropriate model to understand the situation in a moral sense is the model of domestic law enforcement; at other times, just war theory is the appropriate model.

I will attempt to articulate a reflective equilibrium between principles of just war theory and principles of law enforcement. Neither model - just war or law enforcement - individually adequately captures the moral reality of the war against terrorism. But if they are taken together, using moral insights from both domains, a new and relevant model emerges that can provide moral guidance in the war against terrorism. The apparent inability of one or the other model to explain and justify our response to terrorism will cease to be cause for concern since we will have identified consistent principles, which correspond with deep principles of justice, to guide our use of force.

Pacifism and the Domestic Analogy

I must make some preliminary remarks about pacifism in order to explore the underlying principles upon which I believe the justification for the use of force rests. A better understanding of these fundamental principles of justification will in turn establish the legitimacy of the domestic analogy upon which I and many just war theorists traditionally trade.

The fundamental problem with pacifism is that it judges all violence to be morally equivalent, a position that seems implausible, even counterintuitive. Violence itself is a morally neutral concept. For example, it is inappropriate to judge a violent, deadly storm in moral terms, or to ascribe moral characteristics to hyenas in their violent attacks on their prey. What imbue acts of violence with their moral characteristics are the maxims behind them. A maxim is a subjective principle of volition. More than mere intent, a maxim captures the general principle of action that generates specific intentions. One might, for instance, adopt a general maxim to always protect the innocent. That maxim is particularized to a specific intention when, say, one intervenes to protect an elderly person from a mugger. One intends to protect this particular person. Now compare the mugger's maxim with that of the person who comes to the aid of the victim. The criminal has adopted an impermissible maxim since he intends to coerce another human being, to treat that person as a mere means, not an end in himself. …