Where Jus in Bello and Jus ad Bellum Come Together, or, ‘This Time of Damned Algebra’

I’m at Penn Station, waiting for the train from New York City back to DC, happy but slightly dazed after the intense three day conference in celebration of the 35th anniversary of Michael Walzer’s Just and Unjust Wars that I mentioned in an earlier post. My thanks and congratulations to Gabby Blum, Ian Scobbie, and Joe Weiler for organizing it, and to NYU for hosting it. I was humbled to be in the presence of so many great intellectuals, not just in law, but in moral philosophy – Professor Walzer himself, Jean Elshtain, Thomas Nagel, Paul Kahn, David Luban, and many other luminaries in philosophy and other disciplines.

Three intense days, with Professor Walzer offering a few short comments at the end. I think it is okay to paraphrase them from my notes. His final comments go to a running theme of the meeting – the distinction, and its persistence or not, of a moral and legal independence of jus in bello from jus ad bellum. He says that even though a defender of their independence, they come together in the following crucial and urgent moral way. (This is my paraphrase, not a direct quote, and should not be quoted as something directly said by Professor Walzer or taken as suggesting that he has approved any of this as a quote):

The worry is that if you fight in accordance with the legal regimes of international law, you can’t win. That is a major challenge, and I was very happy that General [Charles] Dunlap denies that and says you can. Still, it is a worry. It must be possible for the good guys to win within the rules, at least as a possibility, but also as a real possibility. That’s where ad bellum and in bello come together: to win a just war fighting justly.

But suppose it isn’t possible. That’s what moral philosophers partly do – worry. What follows if it is not possible, or not a real possibility? What then? Well, the rules would have to be changed. We would have to reconsider the content of the rules jus in bello if we could not live within jus in bello and still have the just side win on the battlefield.

In my own crude, unphilosophical way, I suppose this means … jus in bello is not a suicide pact.

A general observation about the tenor of Professor Walzer’s (paraphrased) remark here. Just and Unjust Wars is taken in the United States academic and human rights advocacy community as the manifesto of the introduction and, more emphatically, the triumph of individual human rights in war. In part that is right. But it is correct in the sense of rejecting “realism,” in the amoral Hobbesian “by a necessity of nature” sense, on the one hand – but not thereby embracing a genuinely full Christian view of just war as an expression of immanent natural law, on the other hand.  The meta-theory underlying Walzer’s normative ethics of war is one of making it secular and an expression of modernity (and the touchstone for modernity, something quite alien to Catholic ethics in any very strong sense, the hegemony of consent, and its obverse, something central to Walzer’s ethics, resistance to coercion, or resistance to ‘un-consent’).  But it does so by giving up the full, immanent ground of God’s natural law. In the full Christian just war ethics, justice as such is the key concept, because it is an expression of the love of God for all his children, and not the far narrower and circumscribed (because “merely” human) notion of rights upon which Walzer relies, the obligations which we owe to one another because man is the measure of all things.

Rights gives up the fully foundational, fully immanent understanding of justice of Christian just war ethics.  It does so not in favor of relativism as to right and wrong in war, but in favor of something that seeks moral grounding and judgment in fact – and yet still vastly more contextual, contingent, and human than a fully realized theory of justice in war would offer. We see through a glass darkly, etc. – and, alas, that’s all we ever hope to do. And yet practical reason requires, as Walzer emphasizes in the opening chapters to Just and Unjust Wars, that we make moral judgments as best we can.  It is both what (descriptively) we do, even Athenian generals embarked upon atrocity and speaking in bad faith, but also what, in genuinely good faith, we ought to do.  Hence our need to argue about war and not merely pronounce upon it.

But that is a long ways, I at least would suggest, from the way in which the rights theory of war has taken Walzer’s work in its long elaboration in politics and institutions. Walzer’s remarks above point to something that I would see as a theme profoundly present in Walzer’s opening chapters in Just and Unjust Wars.  Viz., the book offers a theory of rights, yes, but a theory of human rights in war in the service of a moderate moral realism.  The qualifier is not unimportant.

Walzer’s original theory, as found in the book, is not a theory of rights in war that is somehow opposed to moral realism; quite the contrary.  Human rights in war is offered as a way give content to moderate moral realism, one that fills out (“does real work,” as Walzer puts it at the beginning of a later work, the marvelous Spheres of Justice) to the “moderate moral” part of that formulation.  But the formulation, moral realism, is itself a conjoining of “moral” and “realism.”  In that regard, it puts forth plural and not necessarily consistent demands, and sometimes those inconsistent demands will require tradeoffs and sometimes they will require genuinely tragic choices.  We usually think of this sense of pluralism of values leading to tragic choices in the tradition of Isaiah Berlin, and that is true, but I actually have something different in mind.

Pluralism of tragic choices that strives to avoid the trap of relativism on the one hand, and an angelic purity of rights to elide the tragic choices, on the other, leads to Walzer’s theory of rights – rights that are in some sense universal, but also contextual and contingent, which is to say, a human institution to human ends.  “If it is not possible to win just wars fighting justly, then we will have to revise the jus in bello.”  Yes.  I myself have always linked Walzer’s view, not to the purist theories of rights which many rights advocates and academics seem to think that it is, but instead to sources that Walzer himself would probably find idiosyncratic (everyone else does), but I think fit.

When I read the opening chapters of Just and Unjust Wars, leading through the attack on amoral realism and the embrace of a certain rights-defined moral realism, and finally to the assertion that this is a theory of resistance to aggression in which, all other things being equal, one ought to resist, I find it wholly natural to think of the great French moralistes of the 20th century, Albert Camus and the poet and Resistance leader Rene Char.  Char, after all, referred to the war in his diary as “this time of damned algebra” and captured, haiku-like, the essence of the tragic choices of moral pluralism in one of his most famous expressions:

Bitter future, bitter future, a dance amongst the rosebushes.

The problem is, however, Walzer of Just and Unjust Wars – a book offering a moderate moral realism in inevitable tension with itself – is not how much of the world has read and “operationalized” the theory in the decades since.  In the public version of the theory of Just and Unjust Wars that has, so to speak, come to “own” the book, it is a theory of some quite (and increasingly) strident, if not absolutist, version of individual human rights in war, triumphing over the part about winning.  As Walzer seems to suggest above, that was not quite what he intended.