Academic journal article Trames

Institutionalizing the Just War? A Critical Comment on Buchanan

Academic journal article Trames

Institutionalizing the Just War? A Critical Comment on Buchanan

Article excerpt

1. Introduction

Allen Buchanan has recently offered a re-evaluation of the principle that war is permissible only in response to an actual or imminent attack (Buchanan 2006). According to Buchanan, the sole reason for adopting this rule (Buchanan calls it the 'Just War Norm' or 'JWN') over more permissive principles governing the use of force in the international sphere is to reduce the risks of miscalculation of consequences and of political manipulation that inevitably arise from the use of moral justifications for aggressive war. Those risks, Buchanan argues, could be eliminated or at least significantly reduced by transferring decisions on the aggressive use of force from national governments to an accountability-ensuring international institutional framework. The JWN, Buchanan concludes, is valid only in the absence of such a framework.

It follows, according to Buchanan, that we cannot defend the JWN against proposals to introduce a more permissible framework governing the use of force simply by pointing to the risks that would result from allowing national governments to invoke moral justifications for aggressive war. Such arguments, in Buchanan's view, are arbitrarily incomplete, since they fail to take into account the possibility that the risks of a more permissive norm or set of norms could be mitigated by embedding such a norm or set of norms in a proper institutional framework. As a result, at least two substantive justifications for aggressive war that are at odds with the JWN, and that Buchanan is concerned to defend, the Preventive Self-Defence Justification and the Forcible Democracy Justification, remain on the table; notwithstanding the fact that adherence to the JWN may be the best option in the absence of an effective institutional framework governing the use of force amongst states.

I will argue that Buchanan's argument rests on a mistaken understanding of the nature and purpose of the JWN. Buchanan abstracts from the fact that the JWN is not a moral principle but a legal rule and, as such, part of an already existing institutionalized system for the regulation of the use of force. Due to this abstraction, he fails to take into account the JWN's role as a fundamental constitutional principle in an already existing society of equal states committed to the values of peace and equality among states. It follows that Buchanan's own argument is arbitrarily incomplete since it mistakenly reduces the JWN to a mere safeguard against miscalculation and manipulation in an imaginary state of nature.

2. Buchanan's argument outlined

Let me begin by outlining Buchanan's argument. Buchanan starts out from the observation that the validity of a norm governing the use of force in the international sphere is dependent on the institutional context (including, as a special case, the absence of an institutional context) within which the norm will be applied. According to Buchanan, this dependence is an instance of a more general phenomenon, of the fact that the validity of rules governing the legitimate use of political power may vary with institutional context. For example, we might be willing to adopt laws which authorize the police to engage in certain rather intrusive forms of surveillance on the condition that the exercise of such powers is subject to judicial review and that police officers can be held to account for their misuse. A moral evaluation of the laws governing the powers of the police, then, cannot abstract from the institutional context within which these laws are applied (see Buchanan 2006:5-6, and Buchanan 2003, Buchanan 2004).

If something similar holds for rules governing the use of force amongst

states, a responsible moral evaluation of such rules cannot restrict itself to a comparison of different rules that abstracts from the institutional context within which they are applied. Buchanan's argument for the limited validity of the JWN proceeds on the assumption that the following three contexts are relevant for assessing the validity of rules governing the use of force amongst states:

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