A333 Key questions in philosophy

Book 2

War
Jon Pike
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ISBN 978 1 7800 7815 1

1.1
Contents
Preface v

1 Thinking about just war 1

2 The moral equality of combatants 33

3 Targeting civilians and the doctrine of double effect 63

4 Supreme emergency 91

Readings 121

Glossary 167

Acknowledgements 172

Index 174

 Preface

Preface
War is a crucial topic for theorists working within political philosophy
and ethics. When an ethicist is asked to give an example of a moral rule
or principle, the prohibition against killing other human beings might be
the first candidate that springs to mind. But in war, people are killed –
in large numbers – and the deaths are not limited only to those directly
involved. This is not the only bad consequence of war: people are
uprooted, homes and possessions destroyed, the environment polluted
and societies thrown into turmoil. It is not surprising, then, that some
theorists have argued that war is a moral free-for-all, in which the moral
principles that normally govern people’s conduct can no longer be
applied, while others have concluded that war is an unmitigated evil that
can never be justified, whatever the consequences of refusing to fight.
There is, however, a third philosophical approach to war: just war
theory. Just war theorists insist that war, and people’s conduct in war,
does answer to moral principles and, unlike Pacifist theorists, they argue
that war can sometimes be morally justified. In War, the second book
you will study on A333, Jon Pike sets out to explore some of the key
debates between just war theorists, taking as his starting point Michael
Walzer’s seminal book Just and Unjust Wars (1977). War focuses on some
key questions raised by Walzer’s account. Do all combatants – even
those fighting in an unjust cause – have a right to defend themselves? Is
there an important moral distinction between killing combatants and
killing non-combatants, and if so, where should the lines be drawn? Is
Walzer right to claim that there are some situations so dire – situations
of ‘supreme emergency’ – that the rules of war must sometimes be
suspended? What light might Walzer’s discussion of these situations
throw on recent debates about the use of torture?
Just war theory is a highly controversial area in philosophy. Not only are
there significant philosophical disagreements between theorists working
in the field, but war is itself a serious and divisive topic. As Jon Pike
notes, it can be difficult to find the right way to discuss these issues.
You may find that you react quite strongly to some of the arguments
and examples discussed in this book, and perhaps in tutorials too. That
would be wholly understandable. But dealing with controversial material
is just as much a philosophical skill as analysing texts or constructing
arguments. Indeed, it calls on those skills: here, as much as anywhere, it
is crucial to attend carefully to what other people are trying to say and
to construct your own arguments with care.

v
War

As you work through this book and the accompanying material on the
A333 website, you will also develop other skills you will need at this
point in the module – in particular, the ability to understand how a
complex debate fits together and to appreciate its wider importance, and
the ability to distinguish relevant from irrelevant considerations when
analysing and constructing arguments. The audio recordings that
accompany this book include interviews with a range of leading
philosophers working in the field of just war theory, as well as some
archival material. The end-of-chapter quizzes on the website will help
you consolidate your study of Book 2. On the website you will also find
further resources for independent study.
Truth in Fiction posed a question about knowledge: can narrative art be a
source of moral knowledge or understanding? In War, Jon Pike raises a
related question about philosophical methodology: what, if anything, can
philosophers learn by constructing fictional thought experiments? Would
they be better off focusing wholly on historical examples? This is an
issue you will encounter again in Book 3, Reason in Action, and it is
worth giving it some thought as you study this book. Another theme
that will be picked up again in the next book concerns the obligations
and responsibilities that people have as members of groups – for
example, armies or nations at war. Finally, underlying the discussion in
this book are some assumptions about value, and in particular, the value
of life. This is another theme that you will revisit later in the module.
Carolyn Price, Module Team Chair

vi
Chapter 1

Thinking about just war

Contents
Aims 5

Materials you will need 6

1.1 Introduction: thinking about war philosophically 7

1.2 Testing the boundaries of just war theory 11

Differences between the Just War Tradition and just

war theory 11

History and thought experiments 15

The boundaries of just war theory 17

1.3 Moral theory and the Just War Tradition 28

Summary 30

References 31

 Aims

Aims
By the end of this chapter, you should:
. be acquainted with the outlines of the conventional moral rules
concerning war and the Jus in Bello/Jus ad Bellum (justification of
going to war/justice in fighting war) distinction
. understand the basic ideas of the Just War Tradition, just war theory,
Pacifism and Realism, and the relationships between these basic
ideas.

5
Chapter 1 Thinking about just war

Materials you will need

You will need to listen to the following audio recordings (available on
the A333 website):
. How to think about war: tips from the experts
. Lazar on the Just War Tradition and just war theory
. ‘Bomber’ Harris and Frowe on non-combatant immunity.
You will need the following reading, which can be found at the end of
this book:
. Reading 1: Orend on Realism.
At the end of this chapter you will be directed to the A333 website for
guidance on independent study and other activities.

6
 1.1 Introduction: thinking about war philosophically

1.1 Introduction: thinking about war

philosophically
All our lives are touched, directly or indirectly, by war. For some
unfortunate people who are living in conditions of war, just about
everything in their lives will be affected by that fact, and their lives
as such will be threatened. For many of us, fortunately, the gunfire is
far away, though, of course, images of war are continually present on
24-hour news channels and online. However, we are still affected, even
if only indirectly. Arms production and the trade in arms is an
important part of many modern economies. Since war is a continually
present and important part of the contemporary world, it might be
thought that we would have clear, well-grounded views on the morality
of war (e.g. many think that killing in war is different in morally
significant respects from killing in non-war circumstances). It might also
be thought that the topic is one we can talk and write about easily. But
neither of these is the case. Even for the best minds, it seems very
difficult to find the right way to think about war.
Take the example of the philosopher Ludwig Wittgenstein (see box
below). Wittgenstein volunteered to fight for Austria in the First World
War. According to David Edmonds and John Eidinow:

He used his family’s social connections not to avoid combat but

instead to obtain a posting to the front, when an operation at
seventeen for a double hernia would have allowed him to remain
far from the sound of gunfire. He took on the job of artillery
forward observation officer, and insisted on holding his position
long beyond the requirements of duty. … [it has been recorded]
that ‘When he heard that his friend Bertrand Russell [see box
below] was in prison as an opponent of the war, he did not
withhold his respect for Russell’s personal courage, but felt that
this was heroism in the wrong place.’
(Edmonds and Eidinow, 2002, pp. 89–90)

Wittgenstein wrote in his diary that his involvement in the First World
War would provide an opportunity for self-improvement: ‘Now I have
the chance to be a decent human being for I’m standing eye to eye with
death’ (cited in Monk, 1990, p. 112).

7
Chapter 1 Thinking about just war

Ludwig Wittgenstein (1889–1951)

Wittgenstein was a notoriously tortured and difficult character who
was born into a very rich and very cultured family in Vienna. He
studied with Russell in Cambridge, returning to Austria at the start
of the Second World War. He published his book Tractatus Logico-
Philosophicus in 1921. He then abandoned philosophy, but returned
to it in 1929 once he had come to think his earlier views were
mistaken. He then worked on a radical new philosophy, the core
of which was published posthumously in 1953 under the title
Philosophical Investigations.

Bertrand Russell (1872–1970)

Russell was one of a brilliant generation of philosophers in
Cambridge in the early 1900s. Between 1900 and 1913 he did
ground-breaking work in logic and the philosophy of mathematics.
He continued to produce philosophy until the late 1950s. He was
always a radical and was sent to prison twice: the first in 1918 for
an alleged slander concerning the American army’s role in strike­
breaking, and again in 1961 following a sit-down protest in
Whitehall on behalf of the Campaign for Nuclear Disarmament.

Jeff McMahan, who tells the story of Wittgenstein’s volunteering for war
at the start of his book Killing in War, takes a very different view from
Wittgenstein. We shall see that McMahan thinks that how people ought
to behave in war depends to a large extent on whether they are right to
fight in the war in the first place. McMahan did not think that the
Austrians were right to fight in the First World War. It was, he says,

the paradigm of an utterly pointless war. There was, in effect, no

reason for anyone to go to war. This war was a consequence of
fatuous assertions of national pride together with a series of
misjudgments about anticipatory mobilization, alliance

8
 1.1 Introduction: thinking about war philosophically

commitments, and so on. Of all the participants in that futile mass

slaughter, the Austrians were arguably the most culpable.
(McMahan, 2009, p. 2)

As for Wittgenstein’s involvement:

apparently participating in the business of killing people, including

the English whom he so much admired, was a small price to pay
for the elevating and self-improving experience of risking death. If
this is the best that a transcendentally brilliant, paradigm-shattering
thinker can do when his native country initiates an unjust war,
what hope is there for the rest of us?
(McMahan, 2009, p. 3)

Russell, as noted above by Edmonds and Eidinow, also took a very

different view from Wittgenstein. Britain was one of the countries
ranged against Austria and its allies. Russell’s view was that fighting the
war was wrong, and that individuals should oppose it. In 1915 he joined
the militantly pacifist ‘No-Conscription Fellowship’, a move which cost
him his job at Trinity College. And, as mentioned in the box, at the end
of the war he was imprisoned for ‘slandering an ally’.

Activity

Now listen to the audio recording ‘How to think about war: tips from the

experts’ in which you will hear some tips about thinking about war from

the philosophers Seth Lazar, Helen Frowe and Jeff McMahan.

As you listen to the recording, make notes, in bullet point form, of the

advice they give.

Discussion

Here are some summary dos and don’ts:

. Do suspend your belief to go with the thought experiments in the

literature on the ethics of war.
. Don’t confuse the law governing war with the morality of war.
. Do feel happy to contribute to the discussion even if you have no
experience of warfare.

9
Chapter 1 Thinking about just war

. Don’t assume that anyone who acts wrongly is thereby wholly to

blame for that wrong action.
. Don’t treat just war theory as entirely separate from moral philosophy
as a whole.
. Do read the literature (in particular the readings at the back of this
book) and think about the questions raised as carefully as you can.

As I write, philosophical thinking about the ethics of war is developing

rapidly (I use the terms ‘ethics’ and ‘morality’ interchangeably). For a
long time, from its publication in 1977, one book set the parameters of
the philosophical debate about war: that was Michael Walzer’s Just and
Unjust Wars. The book was written in the ferment in US campuses over
the US war in Vietnam, and Walzer wrote in the preface of the book
that he was writing about Vietnam as an activist. This was the same
movement that gave rise to the journal Philosophy and Public Affairs,
which signalled a deeper philosophical engagement in politics.
Walzer’s book set the scene of the debate, but it has recently come
under sustained and serious challenge. There is now a new and perhaps
more rigorous approach to the study of the ethics of war, associated
particularly with McMahan, whom you heard on the audio. I will say
more about this debate in what is to come.

10
 1.2 Testing the boundaries of just war theory

1.2 Testing the boundaries of just war

theory
Differences between the Just War Tradition and just
war theory
In this book I will be largely using just war theory as a philosophical
approach to help to consider the justifiability of war and the taking of
human life in war. First, though, I want to distinguish between the Just
War Tradition and just war theory. I will use capitals to refer to the
first of these, the tradition, and lower case to refer to the second, the
philosophical topic. The Just War Tradition is a long historical tradition,
which started with St Augustine (354–430), and which runs through
figures such as St Thomas Aquinas (1224/25–1274) (who made it much
more systematic), Francisco de Vitoria (1486–1546), Hugo Grotius
(1583–1645) and Samuel Pufendorf (1632–1694). For contemporary
readers, the most accessible work within the Just War Tradition is
perhaps Walzer’s Just and Unjust Wars (1977). The substance of this
tradition is difficult to summarise in a non-controversial manner, but it
is, more or less, the claim that there is a set of conditions which can act
as a kind of checklist for whether a war is just or not. The Just War
Tradition takes its form because it originated as a source of advice for
princes and kings who were considering whether or not to wage war. In
particular, the early modern just war theorists were advising Christian
princes on whether their warfare was justified. They were advised that,
if their actions met the conditions specified by the Just War Tradition,
then they were morally justified in waging war.
These conditions were conventionally divided into two groups, one
concerned with when one may go to war and the other concerned with
how one may fight. These two sets of conditions are standardly known
by their Latin tags: Jus ad Bellum and Jus in Bello. I will follow that
practice. The word ‘jus’ refers to something like rightness, or
justifiability, or justice; ‘bellum’ and ‘bello’ both mean war (the ending of
the word changes in Latin, according to the role of the word in the
sentence, just to make life difficult for schoolchildren); ‘ad ’ means ‘to’
or ‘towards’; and ‘in’ means ‘in’. ‘Jus’ is sometimes spelled with an ‘I’,
but however it is spelled, the word is conventionally pronounced softly,
with a ‘y’ sound.

11
Chapter 1 Thinking about just war

On the central account of the Just War Tradition, there are six
conditions of Jus ad Bellum and two conditions of Jus in Bello. They also
have shorthand tags, some of them in Latin. You do not have to learn
or remember these conditions, but it is worth thinking them through.
Here is the account given by a present-day just war theorist, Uwe
Steinhoff, starting with the Jus ad Bellum conditions:

1 A legitimate authority (king, president, parliament and the like)

decides on the entrance into war.
2 One has a just cause for entering into war (e.g. defence against
an aggressor).
3 One pursues the war with the right intention, namely for the
purposes of a just cause (thus, for instance, one does not
harbour the plan of not ceasing conflict once the aggressor has
been thwarted or possibly even punished, and of getting further
advantages for oneself, such as the increase of one’s own power
or the acquisition of territories or resources).
4 The war fulfils the condition of proportionality, that is, it is a
proportionate means, which is to say that it does not create
more mischief than it averts.
5 The war also fulfils the condition of having prospects of success (in
the sense of prospects of victory).
6 The war is the last resort (ultima ratio), that is, there are no other
promising alternatives available.
For the legitimacy of the conduct of war, in turn, there are above all two
conditions which must be fulfilled, namely:
1 The condition of proportionality must be fulfilled (one is not to
bomb a country ‘into the Stone Age’ if victory may also be had
less destructively).
2 The principle of non-combatant immunity must be observed,
that is, some distinction must be made between combatants
and non‐combatants or, respectively, between legitimate and
illegitimate human targets of a direct attack.
(Steinhoff, 2007, pp. 2–3)

One reason why the Just War Tradition is important is that it has been
encoded in the rules of war – the laws covering international conflict –
at the Geneva Convention, the Hague Convention and so on.

12
 1.2 Testing the boundaries of just war theory

Then there is just war theory: a project, in philosophy, which considers

the justifiability of war and killing in war, and concludes that there are
occasions when it may be justified. Any theory that says that there can
be a just war, even if only in theory, is a just war theory. Any sustained
argument about the conditions of a just war is a contribution to just
war theory. This is not a historical tradition, but (merely) an area of
philosophy. Its focus is the analysis of the justification of killing in war,
and, in particular, the killing of human beings in war. War causes all
sorts of damage and destruction, all sorts of costs. But killing human
beings is generally thought to be particularly hard to justify. And war
almost always involves killing, so whether war can be justified seems to
rest on whether (some) killing in war can be justified. In examining the
justification of killing in war, we need to bring to bear the resources of
ordinary moral philosophy, theories of rights, of right and wrong, of
permissible actions, actions that are wrong but excusable, utilitarianism
and deontology, and so on.
To see the difference between the Just War Tradition and just war
theory let us consider a position in just war theory. It is not a plausible
position, as the particular theory I use is not a plausible theory, but it
will illustrate the point. Consider a simple act utilitarian approach to
killing in war. This would say that killing in war is justified if it leads to
the best consequences, where those consequences are understood in
terms of the greatest aggregate happiness. Killings that maximise
happiness are justified and those that do not are not justified. So, if we
could work out a scenario in which an aggressive, unprovoked war on a
small country could maximise happiness, then, following this line of
argument, such a war would be a just war. This would be a view – a
position – in just war theory.
Whatever the merits of the theory (and I have suggested it does not
have much merit), it stands opposed to the Just War Tradition for two
reasons. First, this just war theory allows an aggressive act against
another country, and this is ruled out by condition 2 of Jus ad Bellum.
Second, simple act utilitarianism does not take intentions into account,
only consequences, so it also violates condition 3: war is not being
waged with the appropriate intention. What this shows is that the Just
War Tradition is a part, but not the whole of just war theory. And still
this oversimplifies things a little, because, of course, there are different
detailed interpretations of the classical works in the Just War Tradition:
it is not as monolithic as I have suggested in this sketch.

13
Chapter 1 Thinking about just war

In this book we will largely be examining just war theory, rather than
giving an account of the Just War Tradition. In general terms, we will
be doing philosophy, rather than the history of political thought. But
things are never that simple: one aspect of our work will be to look at
individual principles from the Just War Tradition – such as the principle
of discrimination between combatants and non-combatants – and to
subject them to philosophical scrutiny.

Activity
To find out more about the differences between just war theory and the
Just War Tradition, you should now listen to the audio recording ‘Lazar
on the Just War Tradition and just war theory’.

There is a further piece of terminology to clarify. When we talk of war

here, we do not mean exactly what is meant by such a term in history,
or indeed in everyday life. We do not mean, for example, the Second
World War, or the war in Iraq. Rather we mean one of those wars as
fought by one side or the other. So, if someone claims that ‘the Second
World War was a just war’, this generally means – it is shorthand for –
the claim that those fighting the Second World War, on the Allied side
against Nazi Germany, and in so far as they fought according to the
rules of war, were fighting a just war.

Just war on both sides?

A war can be – and often is – just on one side and unjust on the
other side. There can be just combatants and unjust combatants. It
is pretty much agreed, and, I think, pretty obvious that there can
be a war that is unjust on both sides – many actual wars have
taken this form. Whether there can be a war that is just on both
sides is contentious. Certainly, even if it is a theoretical possibility,
it is a very rare occurrence.

14
 1.2 Testing the boundaries of just war theory

History and thought experiments

In the debate about the justifiability of war and killing in war, there are
several marked differences of philosophical technique between Walzer,
McMahan and others. Walzer’s approach is to look carefully at a series
of historical examples, and use them to illuminate what is commonly
understood about the morality of war. Many of his examples come from
the Second World War, which is often taken as a paradigm case of a
war that was just on one side and unjust on the other. When reading
selections from Walzer in Chapters 2–4, you will look at historical
events such as the example of Erwin Rommel and the bombing of
Dresden – and you will also look at short accounts of each of these.
This will help you to work out some considered responses, perhaps
starting with some intuitions about the historical cases, and then you
will try to get these intuitions in line, to make them consistent with one
another.
But one problem with this is that real life is messy – there may be all
sorts of complicating variables in these real-life cases that make it
difficult for us to generate clear and systematic intuitions. Another
problem is that there are different historical interpretations of each of
these events, and historical research throws up new and important ways
of understanding the examples. So, for instance, in Chapter 4 we will
look at the situation facing Britain in 1940–42, as an example of
Walzer’s theory of ‘supreme emergency’. There are many different
interpretations of this historical period. The key question – just how
close was an Allied defeat? – is partly an account of ‘counterfactual
history’ (sometimes called ‘what if ...’ history), which is itself
controversial. There is a danger here. It would be easy to become
engrossed in questions of historical interpretation, counterfactuals and
new research findings. These would take us away from our central task:
thinking about the moral justification of certain acts. One way
philosophers try to bypass these questions is to stipulate that a certain
account of a historical event is the one they will consider. So, for
example, I could stipulate that Britain in 1940–42 faced an imminent
and serious threat of invasion and subjection by an unjust force, and
then ask questions about what that might justify, morally speaking. But
this means that I stipulate working with Case A: Britain 1940–42
consisting of a two-line, simplified account (imminent and serious threat
of invasion and subjection) and not Case B: Britain 1940–42 consisting
of a rich, complex account which judiciously considers rival
interpretations and counterfactual possibilities. We do not use Case B

15
Chapter 1 Thinking about just war

because we do not have time, we want to simplify, and we have to get

at the philosophical essentials of the case.
But, if this is what we are after, why not dispense with the thought that
we are dealing with an actual historical case, and instead consider any
nation that faces an imminent and serious threat of invasion and
subjection by an unjust force? Why not make up a scenario, make up
the name of a nation, so that we can think about the case in the
abstract?
So, another approach, preferred by McMahan and other revisionist
philosophers such as Helen Frowe, is to draw not on historical
examples but on thought experiments. By constructing fictitious and
stylised examples, we can isolate particular features of a case, and ask
how these features of the case add to our understanding. Because the
cases are imaginary cases, we can do whatever we like with them. Here
is one example, from Robert Nozick:

If someone picks up a third party and throws him at you down at

the bottom of a deep well, the third party is innocent and a threat;
had he chosen to launch himself at you in that trajectory he would
be an aggressor. Even though the falling person would survive his
fall onto you, may you use your ray gun to disintegrate the falling
body before it crushes and kills you?
(Nozick, 1974, p. 34)

‘Falling Person’ has become famous in the philosophical literature, so

famous that it merits capital letters. There are, you will notice, lots of
morally relevant features of this example. For example, in some cases,
Falling Person is ‘blown by the wind’ rather than thrown by an
aggressor, but, either way, Falling Person has done nothing wrong, and
is not responsible for the fact that they will crush you to death. In the
technical terminology, Falling Person is morally innocent. But Falling
Person is materially non-innocent: they pose a lethal threat to you. You
are given a ‘ray gun’ – though, as far as I know, no ray guns of this sort
actually exist – as this is a device that has the feature that it will not
harm you, only Falling Person. And the fact that your body would
cushion their fall, saving their life, is secured by the fact that you are in
a well: you have no room to escape. These features mean that the
decision is not between whether someone dies or no one dies, but
between whether you or Falling Person dies. These features of the

16
 1.2 Testing the boundaries of just war theory

thought experiment allow us to consider a case which, put in general

terms, runs as follows: ‘If an agent faces an imminent but morally
innocent lethal threat which can only be resisted by killing the object of
the innocent threat, may they kill the object?’ But this question is hard
to grasp when put in such a general way, which is why thought
experiments can be very helpful.
But there are drawbacks to the use of thought experiments. One is a
problem of tone. As I have said, war touches our lives: it is a serious
and tragic business. To think about it by means of some weird science­
fiction examples may seem to trivialise the matter. On the other hand,
there is something about the purity of thought experiments compared
with real-world examples which is helpful. Real-world examples are
always more complicated. Throughout this book I will remain
methodologically pluralist, drawing on some historical examples and
some thought experiments, but it will be worth your considering the
advantages and disadvantages of each method.

Activity
Listen to the audio recording ‘“Bomber” Harris and Frowe on non­
combatant immunity’. In this recording you will be able to consider some
features of an actual historical example, and some applications of just
war theory to that example.
As you listen, make notes on Harris’s justification of the actions of
Bomber Command in the Second World War. Are there any parts of the
interview that strike you as persuasive or less persuasive? Compare the
style of Bomber Harris’s interview with the discussion by Frowe. At this
point you do not need to come to a fixed position on the morality of the
actions of Bomber Command, or on the idea of targeting industrial cities
– there will be plenty of discussion later in this book. But you should
make notes on both the interview and the analysis of it by Frowe. It is
important too, to remember the top tips you listed to earlier in the audio
recording ‘How to think about war: tips from the experts’.

The boundaries of just war theory

It is a generally useful technique in philosophy, when trying to get to
grips with a position (or a statement, or a claim), to ask what is being
denied by the position (or the statement, or the claim). If it is difficult to
work out what is being denied, or if you can work it out, but it is not a

17
Chapter 1 Thinking about just war

claim that someone might take seriously, then that tells against the
position. Just war theory denies two particular, reasonably clear and
reasonably important positions – two other ‘Grand Theories’ of war:
Realism and Pacifism. Realism is the idea that notions such as
morality and justice do not apply to war. Pacifism is the view that all
war is unjust.
Figure 1.1 maps out some of the relationships between these sets of
ideas. You will notice that the Just War Tradition is part of general just
war thinking, and that Realism and Pacifism stand outside just war
thinking, but there are varieties of both of these views that seem to
straddle the boundaries. The positions which are known as ‘Contingent
Pacifism’ and ‘Prescriptive Realism’ (you will meet these later) are, in
some respects, versions of just war thinking.

The Just War

Tradition Act utilitarianism
about war
Jus in Jus ad
Bello Bellum

Co sm
n ti JUST WAR THEORY a li
nge Re
nt P
acifis criptive
m Pres

PACIFISM REALISM
Descriptive
Realism

Figure 1.1 Ways of thinking about war

‘Realism’ – with a capital R – is a term that is often used in

International Relations theory. It is not the view that we ought to be
cautious, or not overly optimistic, in our view of war, or that we have
to face up to the facts in our expectations of how people behave,
though it is related to the common use of the word. Nor is it a matter
of being realistic in the sense that we might talk of a painting being a
realistic representation of a person. Instead, it means thinking about war
in a particular – non-moral – way, and opposing a ‘moralised’
conception of war.

18
 1.2 Testing the boundaries of just war theory

It is important to recognise that, while both Realism and Pacifism are

alternatives to just war theory, they are alternatives in quite different
ways. This can be shown by seeing the answers that a Realist, a Pacifist
and a just war theorist would give to two specific questions:
1 Is it appropriate to apply moral terms (such as right and wrong,
justice and injustice) to international conflict?
Realist: No, this is a dangerous mistake. Notions such as morality
and justice do not apply to war, and it is dangerous to think
otherwise, because, if you go about trying to be just in a war, you
will damage the interests that it is your role to protect.
Pacifist: Yes, it is essential to apply such terms to war: that is how

we understand that all war is wrong and unjust.

Just war theorist: Yes, it is essential to apply such terms: that is

how we understand that some wars are wrong and unjust, and

others are right and just.

2 Can there be a just war?

Realist: No, just as there can’t be an unjust war. The question
involves a category mistake as wars are not the kinds of thing
that could be just or unjust (in the same way as Thursdays are not
the kind of thing that could be purple or pink).
Pacifist: No, wars are always unjust, even those that meet the
supposed conditions of just war theory. That is why just war
theory is mistaken: it fails to specify the conditions under which a
war can be just, because there are no such conditions.
Just war theorist: Yes, that’s what I do; I spell out the conditions
in which war can be just.
So, to make the point explicitly: Pacifists and just war theorists agree
with each other, and disagree with the Realists, that we should think
about war in moral terms. For Pacifists, all wars are unjust, while for
Realists, no war is either just or unjust. Just war theorists, then, are on
their own in arguing for the possibility of a just war.
In this book, we will be looking at just war theory in some detail. That
means working within the boundaries set by Realism and Pacifism.
I want to motivate this in two ways. The first is just to stipulate that we
are going to study just war theory and – to some extent – bypass the
two alternatives to just war theory: Pacifism and Realism. When
someone stipulates what is going on, they use their authority to lay
down certain limits. Philosophers stipulate quite a lot: it is one of our

19
Chapter 1 Thinking about just war

few pleasures in life. When someone stipulates, they require that, for the
sake of argument, you go along with the limits that they lay down. So,
even if you have Pacifist convictions or you are a convinced Realist, I
am going to stipulate that you go along with the discussion of just war
theory for the sake of the argument. This stipulative move will be my
fallback position.
But stipulation like this can be frustrating for those who are
sympathetic to Realism and Pacifism, so I want also to pursue a
different line of argument. This is to offer some reasons for thinking
that both positions are either unsatisfactory or, in a more plausible
form, closer than they first appear to just war theory. If this is right,
then that gives us an added incentive for moving on to just war theory.

Rejecting Realism?
As we have seen, Realism is the idea that notions of justice and injustice
cannot properly be applied to war. If Realism is right, then it is simply a
mistake to talk of a just war (or, for that matter, an unjust war).

Activity
You should now read Reading 1 ‘Orend on Realism’ at the end of this
book. This extract on Realism comes from the entry entitled ‘War’ in the
Stanford Encyclopedia of Philosophy. Before you look at the extract, read
my explanations of some technical terms you will come across in the
reading:
Machiavellian amorality refers to Niccolò Machiavelli, the Italian writer
best known for The Prince, who is thought to have argued that the prince
of a state ought to act outside the traditional Christian moral code
(whether Machiavelli was in fact an amoralist is controversial).
Coordination problems are problems that are caused by completely
uncoordinated activity, and are solved by coordination. The classic
example is driving on the road. If everyone came to their own decision
about which side of the road to drive on, it would be a disaster. It does
not much matter whether it is the left or the right, what matters is that
everyone does the same. In general, enforced rules solve coordination
problems – the content of the rule is not important.
Once you have read the extract, answer these questions:
1 What two types of Realism does Orend distinguish?
2 What claims are made by each type?

20
 1.2 Testing the boundaries of just war theory

Discussion
1 Orend distinguishes between Descriptive Realism and Prescriptive
Realism.
2 Descriptive Realism is the claim that states do not, as a matter of
course, make ethical judgements about war.1 Prescriptive Realism is
the claim that they should not.

Descriptive Realism
According to Walzer, Realism gives an ‘account of war as a realm of
necessity and duress, the purpose of which is to make discourse about
particular cases appear to be idle chatter, a mask of noise with which
we conceal, even from ourselves, the awful truth’ (1977, p. 4).
One way we can try to establish Descriptive Realism is by appealing to
the principle of ‘ought’ implies ‘can’ – a principle ascribed to
Immanuel Kant. Put simply, the claim is that we are only under an
obligation to do something if we are able to do that thing. If I am
standing next to a child in distress I am obliged to help the child. If I
am separated from the child by an insurmountable barrier I am not
obliged to help the child because there is nothing I can do to help the
child. It is clearer for us to consider the principle the other way around
(although it amounts to the same thing): if it is impossible for me to act
in a certain way, then morality does not apply to my situation. That is, if
it is impossible for me to act, the language of ‘ought’ and ‘ought not’
simply does not apply.
We can now see how this principle can establish Realism. In war, agents
do not face meaningful choices. War is a hellish state in which agents
face the choice between killing and being killed. The just war theorist
comes along and says ‘you ought to do this’ and ‘you ought not to do
that’ and the Realist replies that the language of ‘ought’ and ‘ought not’
simply does not apply. Such language would apply only if choices were
possible: if we could do this or if we could not do that. However,
choices are not possible: it is simply a matter of killing or being killed.
Is this a good argument? Does it really capture the situation of those
engaged in warfare? The crucial claim in the argument is that, in war,
choices are not possible and so morality does not apply. Consider a
situation where it is beyond question that choices are not possible and
1
You will come across some discussion of the idea of ‘collective agents’ – the conditions
under which we can think of states as like people who face choices – in Book 3.

21
Chapter 1 Thinking about just war

so morality does not apply: that is, earthquakes. Earthquakes cannot

choose whether or not to go ahead, so it makes no sense to say they
ought or ought not to do so. Suppose, extravagantly, someone wrote a
book called Just and Unjust Earthquakes in which they attempted to
specify a series of conditions under which earthquakes were just or
unjust, with historical examples. And suppose a reviewer wrote: ‘This is
an extraordinarily misconceived book, based on the false premise that
moral notions can properly be applied to natural disasters.’ I suggest
that we might agree with the reviewer, identify them as a Realist with
respect to earthquakes, and, consequently, endorse Realism with respect
to earthquakes.
In the same way, I think we can imagine a Realist review of Just and
Unjust Wars: it would argue that Walzer’s book was misconceived, and
present an argument – perhaps citing the principle that ‘ought’ implies
‘can’ – to show that it is a mistake to think of wars in terms of justice
and injustice. Compared with the Realist review of Just and Unjust
Earthquakes, though, the Realist review of Just and Unjust Wars is much
more contentious, much less obviously right. By contrast with
earthquakes, it seems reasonable to see responsible human agents at the
core of warfare, and to feel some concern that the Realist picture misses
them out.

Prescriptive Realism
Even if we think it is possible to make meaningful choices in war – that
is, we reject Descriptive Realism – we still face the question as to
whether we should embrace all these ‘oughts’ and ‘ought nots’. We still
need to consider ‘Prescriptive Realism’: the claim that we should not
make moral judgements in the context of war. One reason to suppose
that we should dispense with the rules of war is that a war without
rules would be brutal, but short. Suppose an army was unconstrained
by the rules of war: it could simply overwhelm its opposition, taking no
prisoners, in a swift, indiscriminate attack. Arguably, such an approach
might save lives in the long run, since it would make the business of
warfare less drawn out, less cumbersome. So another Realist theme is
scepticism towards the rules of war: the Jus in Bello restrictions of
proportionality and discrimination. If we abandoned the Jus in Bello
restrictions, so the argument goes, long and bloody wars of attrition
would be a thing of the past, and fewer would die.

22
 1.2 Testing the boundaries of just war theory

But there are at least two puzzles we might have about this prescriptive
view: the first questions the empirical assumptions of the argument, and
the second questions the attractiveness of the view.
First, it is not clear that brutal wars do save lives. Rather, they can store
up problems for the future: reconciliation between warring groups may
be much harder after a war of massacre than after a war fought
according to the Jus in Bello rules of the Just War Tradition. And
without reconciliation there is the prospect of more war. This is partly
because, in most cultures, there is a conception of honourable fighting
(as evidenced by the tradition of the medieval knights and the Samurai)
and a sense that there are rules that apply to conditions of war.
Infringing those rules in war looks to many like a further injustice to
the defeated side, above and beyond the fact of their defeat.
Second, is the prescription to put aside the rules of war an attractive
one? The scope of morality seems universal: that is, it applies at all
times and in all places. We would think it most odd if someone said
they abandoned all moral obligations on the first Thursday of the
month, or whenever they found themselves in Budleigh Salterton. The
Prescriptive Realist has an uphill task convincing us that war should be
placed outside the scope of morality. This is reinforced by the fact that
it seems that we do draw moral distinctions about behaviour during
war. In the final chapter of this book I will consider two sets of
circumstances where it is sometimes thought that the rules of war and
similar moral constraints should not be respected: so-called supreme
emergency, when a nation faces a threat to its existence, and the ticking
bomb scenario, which is thought by some to justify the torture of
suspected terrorists. There is a fierce controversy in both these cases
over whether the rules of war can be put aside. But the controversy
depends on the assumption that, in the normal course of war, these
rules apply.
Finally, it looks as if we can turn the tables on Prescriptive Realism. It
advocates Realism as a means to an end – the end being the reduction
of harm caused by war. And it looks as if, contrary to the claim that
Realism abjures moral judgement, this is in fact a moral claim. In
particular, it looks like a form of utilitarianism about the effectiveness
of the rules of war. And that is one reason why Orend thinks that the
Prescriptive Realist might plausibly end up as an advocate of the rules
of war, and so as a species of just war theorist. This is why, in
Figure 1.1 above, Prescriptive Realism is depicted on the margins of just
war theory.

23
Chapter 1 Thinking about just war

Rejecting Pacifism?
We have already seen that Bertrand Russell was a Pacifist with respect
to the First World War. Although throughout his life he was opposed to
war he was not a thorough-going Pacifist: during the Second World War
he supported the Allied campaign to defeat Hitler. A tendency towards
Pacifism is quite a common philosophical position, and it merits
discussion. The Just War Tradition depends on a rejection, not just of
Realism, but also of Pacifism. Pacifism is a view that foregrounds peace,
but it is generally taken to mean quite a lot more. After all, everyone
thinks peace is a good idea, but not everyone is a Pacifist. One
important writer on Pacifism, Jenny Teichman (1986), describes Pacifism
as ‘anti-warism’ (p. 2). Pacifism is the view that all war is unjust, and so
waging war is morally impermissible.

Figure 1.2 From behind several National Guardsmen, protestors gather

during the Democratic National Convention, Chicago, Illinois,

August 28, 1968. Photo: CBS Photo Archive/Getty Images.

Even stated in this way, there are some ambiguities, however. I will
introduce just one here. Take the last sentence of the previous
paragraph. When Pacifists say that all war is unjust, do they mean all
conceivable wars, or all actual, historical, wars that have taken place or
are taking place (or something else)?

24
 1.2 Testing the boundaries of just war theory

Here is a possible view: It is not necessarily the case that all war is
unjust, it is merely the case that all wars that are currently fought are
unjust. An argument for such a view might go as follows: It is unjust to
kill, or to risk killing, non-combatants. As things currently stand, it is
not possible to avoid risking the killing of non-combatants. So-called
‘smart bombs’ are not smart enough, and while killing non-combatants
is not inevitable, the risk of killing non-combatants is always present. In
the future, we might have military technology so advanced – super­
smart bombs (or some sort of ray gun) that would kill only those who
are combatants, and pose no risk to non-combatants. Perhaps we can
get close to this in a war fought only at sea. Then we could fight a just
war. Until that time, it is not possible to fight a just war. So, in the
meantime, all war entails unjust risk, and all war is therefore unjust.
This is a Contingent Pacifist position – Pacifism in the here-and-now,
but perhaps allowing war, or something like war, in the future, when we
have the technology. The philosopher Soran Reader made a similar
point by arguing that:

there is no moral reason why [a plausible pacifism] cannot permit

the use of perfectly discriminate, targeted violence for which the
agents can be held morally responsible, in dealing with
international injustice. A plausible pacifism, then, might well be
one that condones the use of hit-squads.
(Reader, 2000, p. 179)

One reason that Reader makes this point is that some sorts of
(implausible) Pacifism seem to be passive in the face of injustice.
There is a more general point here. Take Pacifism to be the view that it
is wrong – morally impermissible – to fight in a war. Suppose the
reason is that fighting in a war will inevitably mean that the fighter acts
unjustly: they kill or threaten to kill persons who ought not to be killed,
or threatened with killing. If this is the argument, then one challenge to
Pacifism must take this form: that in certain circumstances it may be
the case that not fighting in a war leads to more injustice than fighting in
a war. For example, the circumstances could be that an unjust
combatant, keen to annihilate a particular ethnic group of people, is
intent on invading your territory. If you fight, there will undoubtedly be
injustices. For example, civilians on the unjust side will be killed. But if
you do not fight, the injustices will be far greater, since the marauding

25
Chapter 1 Thinking about just war

army will massacre the ethnic group that they are targeting. I am going
to stipulate that we know this for certain, and that there is a good
chance that fighting will prevent the massacres.
In these circumstances, it is clear that fighting the unjust aggressor is
the ‘lesser evil’. Lesser evils are still evils, of course. But, faced with two
evils, two sets of injustices, and with no way out, we must opt for the
lesser one, rather than the greater one. In these circumstances it is
morally obligatory to fight in the war. If we do not, we act wrongly.
There are at least two ways to avoid this conclusion. The first is to
refuse to go along with the thought experiment. Perhaps it is a bad idea
to go along with ‘unrealistic’ thought experiments which are at a
distance from any real-world situation. But that objection is not
powerful in this case (if it is ever powerful). While the situation is
described in an abstract way, it is very close to the situations faced by
many of those who fought on the Allied side in the Second World War.
That is one reason why the war the Allies fought in the Second World
War is often taken to be an example of a just war. So it will not do to
say that this is an unrealistic thought experiment.
The second way is to invoke a distinction between acts and omissions.
This distinction would tell us that what I do is of a different moral
order to what I omit to do, in the following way. According to the acts
and omissions doctrine, I am morally responsible for the consequences
of my acts, but not (or not in the same way, or not to the same extent)
for the consequences of my failure to act – my omissions. By acting –
fighting in a war, and killing people – I am likely to act unjustly. By
omitting to act – by not fighting – I fail to stop the massacres, but I am
not responsible, or I am less responsible, since this is not an act but an
omission. Suppose I am not responsible at all for my omissions: then
the consequences of my omissions do not count in the calculation of
evils. The fact of the massacres that follow from my refusal to fight are
not part of the balance sheet. In short, I am faced with the choice to
fight (and have moral responsibility for the injustices) or not to fight
(and have no moral responsibility for the consequences). Not fighting is
the clearly the right moral choice. If this is the case, the argument for
Pacifism will stand.
The crucial claim in this argument is that I am responsible for the
consequences of my acts, but not for the consequences of my
omissions. While it is possible to see some basis for a morally relevant
distinction here, it is questionable whether it can bear the weight that

26
 1.2 Testing the boundaries of just war theory

this response requires it to bear. If we weight the numbers

appropriately, and fix any gaps in the thought experiment that might be
thought necessary, then the omission itself can be hugely costly. The
higher the cost, the more the question is raised as to whether the mere
fact of its being an omission, rather than an act, is a sufficiently strong
basis for avoiding responsibility for this massive wrongdoing.
Furthermore, sometimes we can redescribe omissions as acts. Suppose
an agent takes this line of defence. They say: ‘Well it is true that I could
have fought to save the group. But I did not. Instead I did nothing,
because I did not want to act unjustly against the invading army – many
of them were conscripts (and I couldn’t tell who was a conscript and
who had volunteered) and they were not morally responsible for their
killings.’ It might be appropriate to say: ‘You didn’t do nothing, you did
something. You abandoned them to their fate, when you could have saved
them. Your abandonment was an act, and it was an act of great
injustice.’
The difference between ‘doing nothing’ and ‘abandoning’ depends on
the absence or presence of a prior obligation to the person or group
that is to be abandoned. You can only abandon someone to whom you
have an obligation. So ‘doing nothing’ is the right description when
there is no obligation, and ‘abandoning’ is the right description when
there is an obligation. We would need reasons to be given to support
the underlying assumption about obligations. Why ought we to start by
assuming the non-existence of such obligations? Why start, that is, by
conceiving of an action as ‘doing nothing’, rather than ‘abandoning’? In
the absence of these reasons, the reconstrual of ‘doing nothing’ as
‘abandoning’ is still open.
If we weight the possibilities and the numbers on each side sufficiently,
so that the consequences of not fighting are massive, and the chances
of injustice in fighting are quite small, then it is questionable whether
the most justifiable option could hang only on the distinction between
acts and omissions (or on the difference between omitting to act and
abandoning).
In presenting these arguments against Realism and Pacifism I have only
aimed to give some idea of the resources that just war theory has
against these two rivals. The challenges that just war theory has to face
seem substantial, though they may be met.

27
Chapter 1 Thinking about just war

1.3 Moral theory and the Just War

Tradition
The Just War Tradition, while a historical tradition, is also an evolving
and developing way of thinking about war. I have presented it as
composed of six Jus ad Bellum conditions and two Jus in Bello conditions,
and that is indeed the core of the tradition. But philosophers and others
tweak, amend, add to and discard these principles all the time.
Here are two examples of amendments to the formulae of the Just War
Tradition that have been made in recent years, especially as a response
to thinking through the Western interventionist wars in Iraq and
Afghanistan.
First, there has been a great deal of interest in devising rules to cover a
third category, Jus post Bellum: justice after war. These add a third set
of criteria of justice to the overall account of a just war. What
responsibilities does a victorious nation have for the reconstruction of
the defeated nation? What procedures ought to cover the meting out of
justice after a war?
Second, consider the Jus ad Bellum condition of ‘right intention’. This
specifies that a war is only just (and therefore can only permissibly be
fought) if it is fought for the right intention. But consider this in the
case of wars of humanitarian intervention. Suppose that a war of
humanitarian intervention is otherwise justified: the population of a
nation is indeed being brutally subjugated by its own rulers, the
intervention is proportional, has a likelihood of success, can adequately
discriminate between combatants and non-combatants, and so on. All
the conditions of justified intervention are met, except that one of the
putative interveners has its eyes on the natural resources of the country
which is being intervened in. It is intervening partly in order to save the
lives of the suffering population but also in order to secure resource
advantages for itself. Accepting that this is the proper description of the
situation, does the fact that the putative intervener’s actions are not
governed wholly by the right intention render the war thereby unjust?
Here is a counter view:

There are strong grounds for questioning the inclusion of the right
intention criterion among the just war criteria.

28
 1.3 Moral theory and the Just War Tradition

Its inclusion suggests that an act of resorting to war should be

judged not only on the basis of external features, but also on the
basis of the internal motives, desires, and intentions of the agents.
This suggestion, however, confuses two separate judgements. One
judgement has to do with the moral character of the person or
nation carrying out the act. The second judgement has to do with
the morality of the act itself. The content of individuals’ intentions,
desires and motives are, for the most part, relevant to making
judgements of character, but not to making judgements about the
rightness or wrongness of an act. For example, stopping a
murderer from assaulting and killing a victim is the right thing to
do even if the person who intervenes does so solely in the hope
that there will be a reward, and not out of any concern for the
victim. Of course the motivation of the intervener is central to our
judgement of the intervener’s character, but it in no way influences
the judgement about the correctness of the action. Similarly, it is
sensible to talk about a person who, throughout her life,
continuously does the right thing, but with the wrong motives.
Such a person has a flawed moral character, and we would likely
describe that person’s life as morally flawed. Nonetheless, it still
remains the case that the acts the person committed were the right
acts.
(Mellow, 2006, p. 299)

The reasons for thinking that the Jus ad Bellum and Jus in Bello
conditions spell out conditions in which a group of combatants may
fight justly depend on an underlying moral theory, and it is useful now
to go a further step back and ask what shape that moral theory might
take. We will turn to this in the next chapter.

29
Chapter 1 Thinking about just war

Summary
In this chapter we have mapped out some terrain. I have distinguished
four different sets of thinking about war: the Just War Tradition, just
war theory, Pacifism and Realism. Some of the boundaries between
these ideas get a little blurred, but the core ideas of each are simple
enough. While it is not possible to close off the alternatives to just war
theory in the space allowed, it has been possible to give some reasons
for thinking that just war theory is worth pursuing, and we will go on
to do that in the next chapter.

Activity
You should now go to the A333 website for:

. information about the independent study associated with this chapter

. a quiz, which you can use to revise this chapter

. suggestions for optional further reading related to the chapter.

30
 References

References
Edmonds, D. and Eidinow, J. (2002) Wittgenstein’s Poker, New York, Ecco.

McMahan, J. (2009) Killing in War, Oxford, Oxford University Press.

Mellow, D. (2006) ‘Iraq: a morally justified resort to war’, Journal of Applied

Philosophy, vol. 23, no. 3, pp. 293–310.

Monk, R. (1990) Ludwig Wittgenstein: The Duty of Genius, New York, Free Press.

Nozick, R. (1974) Anarchy, State and Utopia, New York, Basic Books.

Reader, S. (2000) ‘Making pacifism plausible’, Journal of Applied Philosophy,

vol. 17, no. 2, pp. 169–80.

Steinhoff, U. (2007) On the Ethics of War and Terrorism, Oxford, Oxford

University Press.

Teichman, J. (1986) Pacifism and the Just War: A Study in Applied Philosophy,

Oxford, Basil Blackwell.

Walzer, M. (1977) Just and Unjust Wars: A Moral Argument with Historical

Illustrations, New York, Basic Books (4th edn 2006).

31
Chapter 2

The moral equality

of combatants

Contents
Aims 37

Materials you will need 38

2.1 Three components of the Just War Tradition 39

The JaB/JiB distinction: a recap 39

The moral equality of combatants 40

2.2 More on Walzer’s theory of self-defence 45

2.3 McMahan’s criticism of Walzer 47

2.4 Can unjust combatants fight justly? 50

2.5 The implications of McMahan’s account 54

2.6 Objections to McMahan’s account 55

The epistemological argument 55

The voluntariness argument 57

Summary 60

References 61

 Aims

Aims
By the end of this chapter, you should:
. have built on your understanding of the Jus ad Bellum/Jus in Bello
distinction and be able to understand why it might need to be
qualified
. understand and be able to take a view on the idea of the moral
equality of combatants
. understand and be able to take a view on the question of the basis
of liability to killing in war
. understand and be able to assess the ‘epistemological argument’ for
the moral equality of combatants
. understand and be able to assess the ‘voluntariness argument’ for
the moral equality of combatants.

37
Chapter 2 The moral equality of combatants

Materials you will need

You will need to listen to the following audio recordings (available on
the A333 website):
. McMahan on Erwin Rommel

. McMahan against the moral equality of combatants.

You will need the following readings, which can be found at the end of

this book:

. Reading 2: Walzer on the moral equality of soldiers

. Reading 3: McMahan on the moral equality of combatants

. Reading 4: Hurka on the moral equality of soldiers.

At the end of this chapter you will be directed to the A333 website for
guidance on independent study and other activities.

38
 2.1 Three components of the Just War Tradition

2.1 Three components of the Just War

Tradition
In the last chapter I mapped out the terrain of the debates over just
war, contrasting the Just War Tradition, just war theory, Pacifism and
Realism. Now we need to start filling in some shapes and contours on
the map. To begin with, I want to look at three related components of
the Just War Tradition: the rules governing going to war (Jus ad Bellum);
the rules governing fighting in war (Jus in Bello); and the idea that
opposing combatants are morally equal. There are questions of
interpretation, and disagreements between scholars about how far
individual theorists are committed to these different views, but this is a
standard reading of the Just War Tradition. For ease of reference I will
shorten Jus ad Bellum to JaB, and Jus in Bello to JiB.

The JaB/JiB distinction: a recap

The Just War Tradition advances the claim that it is only morally
permissible for a state to go to war if certain conditions are met. As
you have seen in Chapter 1, these are named as legitimate authority, just
cause, right intention, proportionality, prospects of success and last resort (ultima
ratio). These are the JaB conditions. Together, according to the theory,
they are necessary and sufficient for a war to be just. You do not need
to memorise the JaB conditions, though there is no harm in doing so.
At the same time, the Just War Tradition maintains that, when engaged
in war, a further series of conditions must be met: the JiB conditions.
Just to remind you, here they are again:
1 The violence used in the war must be proportional to the injury
suffered. States are prohibited from using force not necessary to
attain the limited objective of addressing the injury suffered.
2 The weapons used in war must discriminate between combatants and
non-combatants. The principle of non-combatant immunity must be
observed. Civilians are never permissible targets of war, and every
effort must be taken to avoid killing them. The deaths of civilians
are justified only if they are unavoidable victims of a deliberate
attack on a military target.

39
Chapter 2 The moral equality of combatants

The moral equality of combatants

There is a third component in the arguments of many conventional just
war theorists. This is the idea of the moral equality of combatants
(MEC). The exact status of this view is contentious. Arguably, the
classical theorists of just war – Grotius and Vitoria – did not hold this
view. But Walzer does, and does so explicitly. What does ‘the moral
equality of combatants’ mean, what are the implications of this claim,
and how might it be justified?
The moral equality of combatants thesis states that:

Combatants on both sides of a war, regardless of the justice of

their cause, are equally permitted to kill each other and equally
liable to be killed. (In everyday language ‘liable to be killed’ means
‘likely to be killed’ but here the word has a different meaning: it
establishes who, morally speaking, may be killed.)

We might think about this as follows: imagine two soldiers confronting

each other. If they are morally equal, then they must have the same
moral rights as each other. In war, this means the right to kill each
other.
The idea is that we can abstract the individual soldiers from the overall
justice or injustice of the cause that they are fighting for, and consider
them as individuals confronting each other face to face. If we consider
them as such, each threatens the other, so each is liable to be killed by
the other, and each has a right to defend him- or herself from the
threat of the other. Clearly, under some circumstances, the right to self­
defence amounts to a permission to kill the person who threatens,
because that is the only way in which I can defend myself. I hope that
you can see the way that moral symmetry here seems to build up.
The idea of the moral equality of combatants can be put in a less
analytical and abstract way. Walzer does so in the extract about Hitler’s
generals, which I will ask you to read next. The extract starts by
discussing the case of Erwin Rommel.

40
 2.1 Three components of the Just War Tradition

Activity
Now read Reading 2 ‘Walzer on the moral equality of soldiers’ at the end
of this book. This is an extract from Walzer’s book Just and Unjust Wars.
What, in brief, is Walzer’s view of the moral status of Erwin Rommel?

Discussion
Walzer thinks of Rommel as someone who fought justly but in an unjust
cause. In particular, he cites Rommel’s burning of the ‘commando order’.

The ‘commando order’ was sent directly from Hitler and decreed that
Allied commandos who were captured should be killed. Clearly, this
order required that Rommel violate the rules of war concerning the
treatment of prisoners (and the rules of war concerning the treatment
of prisoners derive from the JiB condition of discrimination between
those liable and those not liable to be killed in war). Walzer commends
Rommel, then, for acting in accordance with the principles of JiB, even
while he fought in a cause that Walzer takes to be wholly unjust. He
uses this example to illustrate a claim about the moral equality of
combatants.

Activity

Now listen to the audio recording ‘McMahan on Erwin Rommel’.

What analogy does McMahan use to explain his own analysis of

Rommel?

Discussion

For McMahan, Rommel is like a burglar who refrains from torturing your

pets. It is better that they do not torture your pets, but not really the

point. Whether or not they torture your pets, they should not be burgling

your house. Their actions are still impermissible – wrong. They act

wrongly, not honourably.

The supposed moral equality of combatants is closely related to the idea

that there is a clear distinction between the conditions under which one
may justifiably resort to war and the conditions one must observe if one

41
Chapter 2 The moral equality of combatants

is to fight justly. Walzer himself claims that the JaB and JiB conditions
are ‘logically independent. It is perfectly possible for a just war to be
fought unjustly and for an unjust war to be fought in strict accordance
with the rules’ (1977, p. 21). George Fletcher and Jens David Ohlin
write that ‘the most basic … architectonic distinction that structure[s]
the law of war is the radical separation of Jus ad Bellum and Jus in Bello.
The lawfulness of war has no bearing on the proper conduct of war’
(2008, p. 20).
It is often suggested that the JaB and JiB conditions also apply most
directly to different groups of people. Statesmen and politicians need to
decide about the justice of going to war (the JaB conditions) while those
who actually fight – combatants – need to think (only) about their
conduct in war (the JiB conditions). So, a sharp distinction between the
conditions of JaB and JiB is closely related to the moral equality of
combatants. The moral equality of combatants means that both sides can
fight well. Equally, it means that both sides can fight unjustly. The
combatants on both sides have to conform to the same rules of war:
they are morally equal. This is the dominant view in the Just War
Tradition, both as an understanding of the morality of war and as an
interpretation of the laws governing the conduct of war.

Activity
Look now at the four-quadrant schema below. This gives you a simple
way of considering various possibilities. At the moment, this is empty.
Drawing on whatever general knowledge you have of warfare, or your
imagination, give an example to fill each of the four quadrants.

Actions of Conform to JaB Fail to conform to

combatants conditions (‘just JaB conditions
combatants’) (‘unjust combatants’)

Conform to JiB
conditions (fighting
by just means)

Fail to conform to JiB

conditions (fighting
by unjust means)

42
 2.1 Three components of the Just War Tradition

Discussion
Here is my version: I have used historical examples from the Second
World War.

Actions of
Conform to JaB Fail to conform to
combatants
conditions (‘just JaB conditions
combatants’) (‘unjust combatants’)

Conform to JiB
Example: Most of the Example: Erwin
conditions (fighting
allied war effort of the Rommel (burning of the
by just means)
Second World War commando order)

Fail to conform to JiB Example: the dropping Example: most of the

conditions (fighting of the atom bomb on German war campaign
by unjust means) Hiroshima by the Enola of the Second World
Gay War, especially, for
example, the London
Blitz

I do not wish to smuggle in the claim that the dropping of the atom
bombs on Japan failed to meet the JiB conditions. I happen to think
that it is a good example of when actions in a just cause did fail in this
respect, but I am not going to argue that here. Note that this could be
a different claim from the claim that the dropping of the atom bomb
was justified. It might be argued that the bombing of Hiroshima and
Nagasaki was a case in which the normal rules of war were justifiably
suspended or that it was justified on a straight utilitarian basis, breaking
with the Just War Tradition that we are examining. I am sceptical of
such claims, but it is a possible move in the argument.
The important issue is whether it could be that a just cause justifies
anything done in its name, so that anything done in accordance with the
JaB conditions is as a result in accordance with the JiB conditions. This
seems implausible. It seems open to us to look for examples of warfare
that were in accordance with the JaB conditions but in breach of the JiB
conditions. We can argue about examples, but the issue is that, in the
Just War Tradition, there can be such examples: the bottom left-hand
quadrant is a possibility. Importantly, too (on this line of argument), the
top right-hand quadrant is a possibility: even though their cause is
unjust, combatants who conform to the rules of war can fight justly,
and the example here is Erwin Rommel.

43
Chapter 2 The moral equality of combatants

So, the independence of the JiB and JaB conditions fits with the moral
equality of combatants. Combatants are morally equal because they can
act in an equally just manner: they are equally liable to be killed
(i.e. within the JiB conditions) and equally permitted to kill (again,
within the JiB conditions). The ‘moral equality’ is reflected in the fact
that we can work our way through the quadrant, and fill up each of the
quarters with some examples: there is a kind of symmetry going on.

44
 2.2 More on Walzer’s theory of self-defence

2.2 More on Walzer’s theory of self­

defence
Walzer’s key point is that soldiers are ‘dangerous men’. On his line of
argument, equal liability comes from equality of threat; what it is that
makes it permissible for me to kill you is that you threaten me. Even if
you threaten me through no decision, let alone fault, of your own, you
still threaten me: recall the case of Falling Person in Chapter 1.
Sometimes, in the literature, this is called ‘material non-innocence’.
The idea is that I have a right to defend myself against a lethal threat;
enemies at war pose a lethal threat to each other; consequently they
have a right to kill each other. Walzer says:

He has joined the army because he thinks his country must be

defended. … He can be personally attacked only because he
already is a fighter. He has been made into a dangerous man, and
though his options may have been few, it is nevertheless accurate
to say that he has allowed himself to be made into a dangerous
man.
(Walzer, 1977, p. 145)

A simple view might go as follows: in a war, there are two sides. On

one side, one set of combatants pose a threat to their enemy or
counterpart combatants. And this is reciprocated: their enemy
combatants pose a threat back. Each side poses a threat to the other,
because combatants on one side try to kill combatants on the other
side. Because of this, combatants on one side are liable to be killed by
combatants on the other side.
On this view, if you pose a lethal threat, then you are liable to be killed.
Look at Figure 2.1 below; although this image does not concern war, it
makes the case dramatically.
The two cowboys aim their guns at each other: each poses a lethal
threat to the other. This situation is sometimes known as a ‘Mexican
standoff ’. Does the fact that each poses a lethal threat to the other tell
us all we need to know about the liability of each to defensive killing? Is it
necessarily true that the people facing each other are, morally speaking,
equal, and equally liable to defensive killing by virtue of the fact that

45
Chapter 2 The moral equality of combatants

Figure 2.1 'Mexican stand-off', 1910. Photo: © Vintage Images/Alamy.

they pose a lethal threat, or could it be that one is liable to killing and
the other is not?

Activity
Take a moment to consider option A and option B below. Think through
the reasons for adopting each option, and make a mental note about
which you agree with.
(A) Both cowboys pose a lethal threat to the other. So each is liable to
defensive killing.
(B) Both cowboys pose a lethal threat to the other. But whether each is
liable to defensive killing depends on other facts about their situation.

Discussion
If you agree with option A, you are in line with Walzer’s position. If you
agree with option B, you are not so clearly in line. Either way, you should
think about the reasons for your view – either that posing a lethal threat
makes you liable for killing, or that the link is not so strong.

46
 2.3 McMahan’s criticism of Walzer

2.3 McMahan’s criticism of Walzer

McMahan doubts option A. He generalises the point as follows:

Suppose a malicious person attacks you unjustly. Would you lose

your right not to be attacked by him simply by trying to defend
yourself ? No. People don’t lose moral rights by justifiably
defending themselves or other innocent people against unjust
attack.
(2006, p. 379)

What matters here, McMahan is suggesting, is that the malicious person

is in the wrong in the first place: that their attack on you is unjust and so
impermissible. Suppose we find out the ‘back story’ to the photograph
above: one of the gunmen has charged in, unprovoked, and attacked the
other without good reason. Should this further information alter our
judgement about the case?
One reason I called the view above the ‘simple view’ is that it says
nothing about whether the sides are just or unjust. McMahan thinks we
should add that in. Consider a situation in which an unjust combatant
threatens a just combatant with lethal force. Does it follow that the
unjust combatant is therefore liable to be killed? This seems to make
sense. Now consider the counterpart: a just combatant threatens an
unjust combatant with lethal force and the just combatant is therefore
liable to be killed. This claim is not so obvious. McMahan thinks that it
is false.
To see why he thinks it is false, we need to differentiate between
‘material non-innocence’ and ‘moral non-innocence’. A person is
materially non-innocent if they pose a lethal force. A person is morally
non-innocent if they are doing something that morally they should not
be doing. Consider an example. In 1943, the Jews of Warsaw forcibly
resisted attempts by the German army to round them up and send
them to extermination camps. In such a case, it does not seem wrong
to resist obvious injustice with lethal force. Indeed, it is easy to argue
that one is morally obliged to defend one’s community against invasion,
violation or extermination. And you cannot lose your right to life from
doing what you are morally obliged to do. Jewish fighters in the Warsaw
Ghetto did everything they could to present a lethal threat to the

47
Chapter 2 The moral equality of combatants

German army, which was seeking to destroy the Ghetto and kill its
inhabitants. As they did pose a lethal threat they were materially non­
innocent. They were not, however, morally non-innocent.
McMahan’s claim is that Walzer ignores the broader moral background.
The morally non-innocent do not gain rights over the morally innocent
but materially non-innocent by virtue of the latter’s attempts at
resistance. The German army did not gain a moral right to kill the
Ghetto resistors as a result of that resistance.
Building on this insight – if it is one – about the morality of self­
defence, a number of recent philosophers have come up with a
revisionist account of just war which says, more or less, that all the
standard elements of the Just War Tradition as I have discussed it above
are wrong. The view has important philosophical consequences, and
significant real-world consequences. Let us see how it gets going.

Activity
Now read Reading 3 ‘McMahan on the moral equality of combatants’ at
the end of this book. This is an extract from McMahan’s article ‘On the
moral equality of combatants’, which appeared in the Journal of Political
Philosophy.
Once you have read the extract, answer the following questions:
1 What two distinct uses of ‘innocent’ does McMahan distinguish?
2 What two requirements of JiB does McMahan think unjust combatants
cannot satisfy? (He argues for only one of his claims in the reading.)
3 McMahan finds two arguments for Walzer’s position; only the first of
these is covered in the reading. What is that argument?
4 What three objections does McMahan have to that argument?

Discussion
1 ‘Innocent’ meaning ‘civilian’ (or ‘non-combatant’) and ‘innocent’
meaning people who ‘have done nothing, and are doing nothing, that
entails the loss of their rights’.
2 He thinks they can satisfy neither the requirement of discrimination
nor that of proportionality. (You might want to remind yourself of these
by looking again at the start of the chapter.)
3 ‘The boxing match model’: ‘combatants understand that they and their
adversaries are all fulfilling their professional role and at least
implicitly they consent to be done to by their adversaries as they are
doing unto them.’

48
 2.3 McMahan’s criticism of Walzer

4 (i) Combatants do not always consent to being attacked by their

adversaries.
(ii) Even if just combatants did consent, someone consenting to
being killed does not always make it permissible to kill them.
(iii) Even if Walzer’s arguments worked, that would show only that
unjust combatants could kill just combatants. However, unjust
combatants’ actions would still be wrong because they are in
service of an unjust cause.

The revisionist view denies the moral equality of combatants and the
independence of the JiB and JaB conditions. The standard view of the
Just War Tradition is that combatants on the unjust side in a war can
fight justly if they obey the JiB conditions. But the revisionists say: they
cannot obey the JiB conditions.

49
Chapter 2 The moral equality of combatants

2.4 Can unjust combatants fight justly?

If we can endorse the Just War Tradition’s distinction between JaB and
JiB, then the top right-hand quadrant of the grid in the Activity in
Section 2.1 can be filled in. The point of this part of the quadrant is
that it is possible to fight justly in an unjust cause. This is of great
importance for serving soldiers, because it means their actions can be
just even if their cause is not. But the distinction does not work if it is
the case that it is not possible to fight justly in an unjust cause. And this
is what McMahan suggests is the case (although with one qualification,
which we will look at below).
The second JiB condition is that those who fight observe the principle
of discrimination. Here is what McMahan says in Killing in War:

Those who fight solely to defend themselves and other innocent

people from a wrongful threat of attack, and who threaten no one
but the wrongful aggressors, do not make themselves morally
liable to defensive attack. By engaging in morally justified self- and
other-defense, they do nothing to forfeit their right not to be
attacked or killed. This means that even though just combatants
are ‘doing harm’ and ‘pose a danger to other people’ when they
oppose the military action of unjust combatants, they do not
thereby become legitimate targets of attack but retain their
innocence in the generic sense.
(McMahan, 2009, p. 14)

But if this is right, then just combatants are not liable to attack. Here is
McMahan again:

It is hard to see how just combatants could become legitimate

targets simply by offering violent resistance to unjust attacks by
unjust combatants. …to attack just combatants is to attack people
who are innocent in the generic sense: people who have not
forfeited their right against attack, and thus are not liable to attack.
They are therefore illegitimate targets. To attack them is
indiscriminate.
(McMahan, 2009, p. 16)

50
 2.4 Can unjust combatants fight justly?

Indiscriminate killing is, of course, in breach of the JiB conditions. So, if

you are fighting in an unjust cause, then you cannot target civilians, because
they are civilians, and you cannot target just combatants, because they are
not liable to be killed. You cannot target anyone. You cannot fight justly.
The top right-hand quadrant has become a big problem.

Activity
Look back at the grid which I asked you to fill with your own examples.
Consider how McMahan’s account might alter things, and see if you can
decide how McMahan would deal with each of the quadrants.

Discussion
Actions of combatants Conform to JaB conditions Fail to conform to JaB
conditions

Conform to JiB conditions Combatants fight in a just cause Void: Unjust combatants cannot
and by just means meet the condition of
discrimination between those
Not liable to attack. Just liable and those not liable to
combatants have not lost the right attack: they have no legitimate
not to be killed, and killing them is targets (and should stop fighting).
impermissible If you fight in breach of the JaB
conditions, you cannot meet the
JiB conditions

(Exceptionally, perhaps, unjust

combatants may have legitimate
targets. They may attack just
combatants who fight unjustly:
such as the crew of the Enola
Gay)
Fail to conform to JiB
Combatants fight in a just cause, Combatants fight in an unjust
conditions
but by unjust means cause and by unjust means

Example: the bombing of Liable to attack; they should stop

Dresden, which failed to meet the fighting. They may not permissibly
JiB condition of discrimination. defend themselves from defensive
Just combatants who fight unjustly killing
are liable to being killed in war –
for example, the crew of the Enola
Gay

51
Chapter 2 The moral equality of combatants

McMahan’s account differs radically from the account given by Walzer,

and the standard account of the Just War Tradition which forms the
background to most everyday thinking about killing in war. In general,
on McMahan’s account, unjust combatants cannot fight justly. They cannot
obey the JiB conditions. For sure, they can try to discriminate between
soldiers and civilians. But the moral point of the discrimination between
soldiers and civilians is to discriminate between those liable to be killed
and those who are not liable to be killed. The moral property that
makes a difference is the property of being liable, not the property of
wearing a uniform. So, on McMahan’s account the top right-hand
quadrant is void – it cannot be filled.
What about the bottom left-hand quadrant? That is, what about just
combatants who fight by unjust means? Here the situation gets more
complicated.
On the argument so far, unjust combatants are not permitted to attack
just combatants. But what if the just combatants are violating the JiB
principles? McMahan thinks it would have been morally justified for a
Japanese fighter pilot to shoot down the Enola Gay ‘despite the fact that
he was an unjust combatant while the crew of the Enola Gay were just
combatants’ (2009, p. 16)
On this account, acts of war by unjust combatants can be morally
justified – when they are directed at just combatants who are breaking
the rules of war – but it is very hard and very rare for this to be the
case.
Here is how McMahan puts it in Killing in War:

Unjust combatants can seldom satisfy the jus in bello requirement

of discrimination, since just combatants seldom make themselves
liable to attack and thus are in general illegitimate targets. If just
combatants were always to fight according to the moral constraints
that govern their conduct in war, they would never be liable to
attack and thus unjust combatants would never be able to satisfy
the requirements of discrimination.
(McMahan, 2009, p. 18)

52
 2.4 Can unjust combatants fight justly?

Figure 2.2 Crew of the Enola Gay pose beside the B-29 bomber, 1946.
Photographed by Art Edger. Photo: © New York Daily News via Getty
Images.

53
Chapter 2 The moral equality of combatants

2.5 The implications of McMahan’s

account
The first time that you grasp McMahan’s account the implications
should strike you as thunderous. In the blurb for his book, McMahan’s
mentor Derek Parfit points out that McMahan’s account shows just how
difficult it is to fight a just war. The consequences for the moral
responsibilities of actual combatants are profound. McMahan is clear
about the implications of his views in an interview he did for this
module, which you should listen to next.

Activity
In order to consolidate your understanding of McMahan’s position you
should listen to the audio recording ‘McMahan against the moral equality
of combatants’.

54
 2.6 Objections to McMahan’s account

2.6 Objections to McMahan’s account

McMahan’s account faces some important objections. We will spend the
rest of this chapter considering two of them.

The epistemological argument

The epistemological argument is so called because it has to do with
knowledge; ‘epistemology’ means ‘theory of knowledge’. The argument
rests on what combatants know, and what they can reasonably be
expected to know.
In general, combatants do not have a fully informed understanding
either of morality or of international affairs, and so consequently they
cannot know about the justness of their cause; it is simply too
complicated. They cannot reasonably be expected to make moral
judgements about the justice of their cause. This being the case, they
are entitled to act as if they were fighting in a just cause. Ordinary
combatants can legitimately defer to their leaders, on the basis that
these people are better informed about the facts of the war and are in a
better position to determine its justice.
Note that the argument applies equally to just and unjust combatants.
The epistemological argument supports the moral equality of
combatants. Both sides are justified in deferring to their leaders and so
are justified in fighting if they are ordered to do so. If both are justified
in fighting, then they are morally equal.
McMahan makes two replies to this. The first depends on distinguishing
the blameworthiness of an action from the wrongness of an action. If I
am not in a position to know that an action of mine is wrong, then
generally I am not blameworthy for that action. Nonetheless, the action
itself is wrong. If I did not know that a drink I gave someone was
poisoned, then I cannot be blamed for poisoning them. Nevertheless, it
is wrong to give someone a poisoned drink.
McMahan’s sharpest criticism of Walzer’s explanation of the moral
equality of combatants is that Walzer slips between two different moral
questions: whether we act in a way for which we are or are not
blameworthy and whether we act in a way that is morally impermissible
or morally permissible. Here is what McMahan says:

55
Chapter 2 The moral equality of combatants

In various places Walzer also identifies the absence of criminality

with the absence of blameworthiness. ‘It would be very odd,’ he
claims, ‘to praise Rommel for not killing prisoners unless we
simultaneously refused to blame him for Hitler’s aggressive wars.
For otherwise he is simply a criminal, and all the fighting he does
is murder or attempted murder.’ In short, Walzer claims that if an
unjust combatant is blameless, he is not a criminal, that if he is
not a criminal, he is the moral equal of a just combatant, and that
he is therefore permitted to fight if the just combatant is.
The mistake here is to ignore the possibility that blamelessness
implies nothing more than that the unjust combatant is excused.
That a person is blameless does not entail that he or she has acted
permissibly; for both those who act permissibly and those who act
wrongly but with a full excuse are blameless.
(McMahan, 2009, p. 112)

That is, McMahan convicts Walzer of an unwarranted slippage, from

excusability to justifiability. The excusability of unjust combatants does
not entail the justifiability of their actions.
McMahan’s second reply questions whether unjust combatants even
escape being blameworthy:

While it’s sometimes reasonable for unjust combatants to believe that

their war is just, it isn’t always. But the doctrine of the moral
equality of combatants doesn’t hold that participation in an unjust
war can be permissible provided that one reasonably believes that
the war is just; it holds, rather, that combatants aren’t responsible
for whether their war is just and therefore don’t do wrong if they
obey an order to fight even if they reasonably and correctly believe
that the war is unjust.
(McMahan, 2006, p. 390)

In Killing in War, McMahan outlines a series of tests that a serving

combatant can ask themselves about whether they are fighting in a just
or unjust war. The stakes are much higher than in many other cases
where one is obliged to come to a judgement about the justification of
one’s actions. So a soldier should ask: is this war on my home territory?

56
 2.6 Objections to McMahan’s account

Am I fighting alongside a native army? What is said by Human Rights

Watch, the UN and other agencies? These tests may strike you as a little
rough and ready, but they certainly seem to indicate there are
mechanisms that can be applied by combatants at an individual level to
make a judgement about the justice of their cause.

The voluntariness argument

For the sake of argument, let us concede that there is a series of
questions that combatants can ask, and accept also that they should ask
themselves these questions. They ask themselves these questions, and
then they make a judgement. They choose to join up, or, if they have
joined up, they choose to remain in the military rather than desert.
McMahan’s account suggests that joining up does not free me of moral
responsibilities: if my cause is unjust, I act unjustly in attempting to
further it. What, then, does change? What is it for me to enlist in the
military? One way of describing what it is that I do when I join the
military is to say that I consent to putting myself in the firing line. So,
in a way, I consent to be targeted. If I do this, and the people I fight
also do this, then are we not, in an important sense, morally equal?
The American philosopher Thomas Hurka, has developed this point
into an argument that defends the moral equality of combatants. The
argument turns on our being free to give up our rights. For example,
I have the right to lie in bed all day if I want to. However, if
I voluntarily enter into a contract with you – say, I accept your offer
of a job – then I lose that right. Indeed, you have the right to insist
that I get out of bed and turn up for work.

Activity
Read Reading 4 ‘Hurka on the moral equality of soldiers’ at the end of
this book. This is an extract from Hurka’s article ‘Liability and just cause’,
which appeared in the journal Ethics and International Affairs. Once you
have read the extract, answer the questions below. (Hurka uses the word
‘inalienable’ in the extract. To claim that a right is ‘inalienable’ is to claim
that it cannot be given up.)
1 What exactly does Hurka think happens to your right not to be killed
when you join the army?
2 What two objections to this view does he consider?

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Chapter 2 The moral equality of combatants

Discussion
1 Hurka’s view is that combatants waive, temporarily, their right not to
be killed when they join the army.
2 The two objections that Hurka identifies are:
(i) That the right not to be killed is inalienable.
(ii) That just combatants can fight proportionally and unjust

combatants cannot.

Hurka needs to find ways to overcome these objections if his argument is

to succeed. First, let us consider his attempts to reply to the first objection
(that the right not to be killed is inalienable). He begins by describing a
case of a contract in which A offers B $100,000 per year for 10 years in
return for the right to kill B after that time. Hurka claims that ‘many will
say’ that A does not get the right to kill B; B cannot trade his life for
money, as the right not to be killed is inalienable. Of course, if volunteering
for the military is analogous to this case, then combatants too will not be
able to forgo their right not to be killed, and Hurka’s argument will fail.
I shall list each of the replies Hurka makes. You will need to go back to
the reading to ensure that you have grasped them.
1 The right to be killed is alienable (so there is no objection anyway).
2 The case of the military is not analogous to the contract case, because
combatants only give up their liberty rights. To have a liberty right is to
have a right to do something (that is, one is not obliged not to do it).
To have a claim right is to have a liberty right and also to have a claim
over someone else (perhaps a duty to help me exercise that right).
3 The case of the military is not analogous to the contract case,
because it is symmetrical and the contract case is not.
4 The case of the military is not analogous to the contract case,
because it is revocable and the contract case is not.
5 The case of the military is not analogous to the contract case,
because it is a waiving of a right and not an alienating of a right.
Hurka claims that, taken together, these make the military not
analogous to the contract case (which would be problematic) but rather
analogous to the boxing case (which is not problematic). You should
consider each of these distinctions, and whether they make a morally
relevant difference in the case of the contract.

58
 2.6 Objections to McMahan’s account

Activity

What is Hurka’s response to the second objection?

Discussion

Broadly, he accepts it. In wars fought only between combatants there is

moral equality. However, in most wars civilians will also be harmed. For

just combatants this is sometimes proportionate, for unjust combatants it

is never proportionate.

Hurka sums up his views as follows:

If soldiers on both sides have surrendered their right not to be

killed to all enemy soldiers in all future wars, then with respect to

each other they are moral equals, each permitted to kill their

enemy and liable to be killed by them. The two sides are not

completely morally equal, since in most wars just combatants can

fight proportionally while unjust ones cannot. But insofar as they

target each other, both act permissibly and neither’s acts are

wrong. In that important respect they are moral equals.

So Hurka defends the idea of the moral equality of combatants, but

with a different central argument from that of Walzer. Before any war
has begun, combatants have voluntarily waived their right not to be
killed: they have made themselves liable to attack by joining up.
How might McMahan respond? McMahan argued that material non­
innocence was not enough to establish the moral equality of
combatants, we also had to look at the broader picture. If someone
assaults me, and I resist, that does not make us morally equal in the
damage we inflict upon each other. We can try to fit Hurka’s argument
into this analogy. Hurka argues that if I volunteer to get into a fight
then I give up my right not to be hit (that is part of what volunteering
to get into a fight is).
Is it always true that in volunteering to fight one gives up the right not
to be harmed? This certainly seems true for the boxer. However, if I
choose to defend my home against a hostile invading army, does that
give the hostile army the right to kill me? What do you think?

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Chapter 2 The moral equality of combatants

Summary
In this chapter we have looked at the arguments for and against a
doctrine known as the moral equality of combatants. The moral equality
of combatants says that combatants on both sides of a war, regardless
of the justice of their cause, are equally permitted to kill each other and
equally liable to be killed. We looked at Walzer’s argument for moral
equality from the right to self-defence, and then at McMahan’s
arguments against this. Finally, we considered Hurka’s argument that the
moral equality of combatants follows from the fact that, in joining up,
they voluntarily surrender their rights.
The following table, which gives some of the arguments and locates
some of the theorists in relation to those arguments, will help you to
draw all this information together.

Arguments for MEC Accepts Rejects

Material non-innocence Walzer McMahan,
Hurka
Voluntariness Walzer, McMahan
Hurka
Epistemological argument
Walzer McMahan
Protection of non-combatants on the
McMahan
unjust side

Activity
You should now go to the A333 website for:

. information about the independent study associated with this chapter

. a quiz, which you can use to revise this chapter

. suggestions for optional further reading related to the chapter.

60
 References

References
Fletcher, G.F. and Ohlin, J.D. (2008) Defending Humanity: When Force Is Justified
and Why, New York, Oxford University Press.
McMahan, J. (2006) ‘On the moral equality of combatants’, Journal of Political
Philosophy, vol. 14, no. 4, pp. 377–93.
McMahan, J. (2009) Killing in War, Oxford, Oxford University Press.
Walzer, M. (1977) Just and Unjust Wars: A Moral Argument with Historical
Illustrations, New York, Basic Books (4th edn 2006).

61
Chapter 3

Targeting civilians and the

doctrine of double effect

Contents
Aims 67

Materials you will need 68

3.1 Introduction 69

3.2 Combatant liability 73

3.3 Killing non-combatants and the doctrine of

double effect 79

Criticising the doctrine of double effect 80

Amending the doctrine of double effect 83

3.4 Principles and conventions 85

Summary 89

References 90

 Aims

Aims
By the end of this chapter, you should:
. understand and be able to take a view on the principle of non­
combatant immunity
. understand and be able to take a view on the use of the doctrine of
double effect in explaining and justifying the killing of non­
combatants in war
. understand different views of the status of the principle of non­
combatant immunity.

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Chapter 3 Targeting civilians and the doctrine of double effect

Materials you will need

You will need to listen to the following audio recordings (available on
the A333 website):
. Frowe on non-combatant immunity
. Frowe on the doctrine of double effect
. Lazar and McMahan on the morality and rules of war.
You will need the following readings, which can be found at the end of
this book:
. Reading 5: Walzer on killing naked soldiers
. Reading 6: May on the problem of the naked soldier
. Reading 7: Mavrodes on principles and conventions.
At the end of this chapter you will be directed to the A333 website for
guidance on independent study and other activities.

68
 3.1 Introduction

3.1 Introduction
‘Fight only those who fight you’ – this slogan captures a key idea in the
Just War Tradition. Do not lash out at just anyone; restrain your
violence to the people who treat you with violence. A standard feature
of the Just War Tradition is the claim that a just war can only be fought
by those who distinguish carefully between those they attempt to kill;
enemy combatants may be intentionally killed, but non-combatants
(including enemy non-combatants) have immunity from intentional
killing; it is morally wrong, or impermissible, to kill them or to try to
kill them. This is the principle of non-combatant immunity. Sometimes
people use a different phrase and call this the principle of
discrimination. This is because the principle tells us that we must
discriminate between combatants and non-combatants. The two terms
label more or less the same idea.
Hence, the principle of non-combatant immunity involves two claims.
The first is the claim that no non-combatant may be intentionally killed.
The second is the claim that all combatants may be intentionally killed.
It is possible to accept one of these claims without accepting the other.
There are several questions that might be raised about this principle.
First, there is a practical question: what ought to be taught to soldiers at
military training schools? One thing that soldiers are standardly taught is
to target only those who wear a military uniform.
Second, there is a philosophical question about how to justify claims
about who may be killed in war. This is a question about liability: what
is it about some people that makes them liable to be killed, and what is
it about others that means they are not liable to be killed? Or, to put it
slightly differently, what is it that makes it morally permissible to try to
kill some people but not others?
Third, there is what I will call a ‘mapping’ question that arises when we
think about the second question and the first one together. Suppose
that we have a clear answer to the liability question. We also have a
fairly straightforward distinction, which we can observe, between people
who wear uniforms and people who do not. The mapping question
concerns how these two distinctions map onto each other. Does the
practical guidance match the moral status of the individuals concerned?
A fourth set of questions concerns the stringency of the principle –
whether it is absolute or can be overridden, and what it means to

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Chapter 3 Targeting civilians and the doctrine of double effect

‘intentionally kill’ or ‘target’ someone. Suppose the principle is taken to

be absolutely stringent, and that we understand the term ‘intentional
killing’ as broadly as possible. In that case, it would be almost
impossible to fight a just war (except perhaps at sea, between warships).
This is because almost every act of violence in war involves some risk
to non-combatants. If we think that it may be permissible in practice to
fight a war, then it looks as if we have to decide how great the risk may
be, and the conditions under which it is morally permissible to take that
risk. Within the Just War Tradition, it is common at this point to appeal
to the ‘doctrine of double effect’. This involves examining the
intentions of the agents involved, distinguishing between what the
agents intend and what they merely foresee will happen, and the level of
risk to which the non-combatants are exposed.

Activity
The principle of non-combatant immunity is a fairly standard one, and I
would expect you to understand what it means quite quickly, even if the
term is new to you. So how would you defend it? State the principle in
your own words and then write down some reasons you might give if you
were defending it against a sceptic: someone who says, ‘So why is that
true?’

Discussion
The principle of non-combatant immunity is in line with many of our
straightforward moral intuitions. Here are three relatively uncontroversial
accounts of the principle that I came up with. The first involves thinking
about what people deserve, the second about what rights people have
and the third is about unreasonable discrimination.
First, people should get what they deserve to get. Unless you have done
something to deserve it, you should not be killed. Non-combatants have
done nothing to deserve being killed.
Second, all people start off with a right not to be killed. Perhaps
someone can lose that right, but it cannot just disappear. It is, then,
unjust to be killed unless you have done something to lose this right.
How might you lose this right? In the case of war, one obvious answer is
that people lose their right not to be killed when they fight. But non­
combatants, by definition, are not fighters. So they retain their right not
be killed.

70
 3.1 Introduction

Third, it looks as if those who target non-combatants target them not

because of what they do, but because of what – or who – they are. And
this, again, seems a paradigm of injustice.

These considerations seem to capture what is distinctively wrong with

terrorism. Whatever the definition of terrorism, it seems to breach the
principle of non-combatant immunity. It is for this reason, perhaps, that
those who instigate terrorist acts sometimes doff their caps to the
principle of non-combatant immunity, by trying to show that those that
they target are in some way liable to be killed, because they have, in
some way ‘entered the lists’ or are complicit in the actions of people
who are obviously combatants. Osama bin Laden, for example,
attempted to justify the attacks of 9/11 by invoking the support given
by the American electorate to the Bush government in maintaining
bases in Saudi Arabia.
In his ‘Letter to the Americans’ bin Laden wrote:

(3) You may then dispute that all the above [a list of bin Laden’s

complaints against the West] does not justify aggression against

civilians, for crimes they did not commit and offenses in which

they did not participate:

(a) This argument contradicts your continuous repetition that

America is the land of freedom, and freedom’s leaders in this

world. If this is so, the American people are the ones who choose

their government through their own free will; a choice which stems

from their agreement to its policies.

(quoted in Lawrence, 2005, pp. 164–5)

You might notice here that (3) is recognisably an account of the

principle of non-combatant immunity, which appeals to the intuitions
I have mentioned: ‘crimes they did not commit’ for example.
Statement (a), then, is an extravagantly – and horribly – wide account of
liability to being killed. But it is recognisably an account of it: it
amounts to a claim that the civilians in the Twin Towers were complicit
in the actions of the Bush government, and thereby lost their right not
to be killed.

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Chapter 3 Targeting civilians and the doctrine of double effect

Hence, one very important task for just war theorists is to try to give a
firm philosophical basis to the principle of non-combatant immunity.
What is required is, as Larry May has put it, ‘a bright line’ (2005, p. 41)
between those who can be killed and those who cannot. This is not an
easy task. Indeed, some theorists have started to suggest that the line
cannot be drawn in any clear or satisfactory way. If this turned out to
be right, it would have significant implications. One possible implication
is that indiscriminate war is justified. Another is Pacifism. For if there is
no clear bright line discriminating those who are liable to be killed and
those who are not, then either everyone is liable to be killed or no
one is.

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 3.2 Combatant liability

3.2 Combatant liability

At the start, I suggested that the principle of non-combatant immunity
has two sides. The first is the claim that non-combatants may not be
killed. The second is the claim that combatants may be killed – they are
liable to be killed. I want to start by giving some thought to the second
of these claims. On the face of it, this might look like a simple claim.
But when we look at it more closely, it becomes clear that it holds some
complexities. What, for example, should we say about combatants who
do not pose a threat – perhaps because they do not have a gun, or,
even, because they are naked, having a bath or a shower, when they are
unwittingly targeted by a sniper?

Activity
Now read Reading 5 ‘Walzer on killing naked soldiers’ at the end of this
book. This is another extract from Walzer’s Just and Unjust Wars (you
studied an earlier part of this book in Reading 2).
Note that in Reading 5 Walzer refers to ‘five stories’ in which soldiers are
reluctant to kill enemy soldiers who are not posing a threat. Only one of
these has been included in the reading.
Once you have read the extract, answer the following question:
What is Walzer’s overall view on the permissibility of killing naked
soldiers?

Discussion
Walzer believes that soldiers should overcome their squeamishness and
kill the naked soldier. Refusing to do so seems ‘to fly in the face of
military duty’. And certainly Walzer thinks that we are permitted to shoot
naked soldiers.
It looks as if Walzer justifies killing members of a class or group on the
basis of their membership of that class or group. But treating people on
the basis of a group characteristic can often look like a paradigm case of
injustice. Compare a teacher who returns to her class to find that two or
three different hands have written rude words on the blackboard. She
cannot ascertain which of her class of eight-year-olds has committed this
offence, so makes the whole class stay behind after school. Obviously,
for most of the pupils this is a clear injustice: they are being punished for
something that they did not do. (It is the sort of injustice that rankles,
especially with eight-year-olds.) It is unjust because they are being
punished simply because they are members of the class, not because

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Chapter 3 Targeting civilians and the doctrine of double effect

they have misbehaved themselves: the teacher’s judgement is too

undiscriminating or rough-grained. You might want to consider here
whether cases of ‘racial profiling’ raise a similar problem of injustice.
Similarly, the properties ‘being a soldier’ and ‘posing a threat’ are not
perfectly correlated. People who are not in uniform sometimes pose
threats, and people who are in uniform sometimes do not. For example,
soldiers in headlong retreat from an invading army do not pose an
immediate threat to that army. As we have seen, Walzer comes to the
conclusion that, in the case of soldiers, military duty overrides what he
calls ‘passionate’ feelings. But this seems to understate the moral
problem: the worry is that killing a naked soldier arguably involves killing
someone who is not liable to be killed.

Activity
Now read Reading 6 ‘May on the problem of the naked soldier’ at the
end of this book. This is an extract from Larry May’s article ‘Killing naked
soldiers: distinguishing between combatants and noncombatants’, which
appeared in the journal Ethics and International Affairs.
Once you have read the extract, answer the following questions:
1 What is May’s main objection to Walzer’s justification of the killing of
naked soldiers?
2 What point does May make with the example of a surrendering
soldier?

Discussion
1 May’s main objection is that Walzer seems to be ‘relying on a notion
of collective responsibility of the worst sort.’ May thinks that this is at
least partly true of Walzer’s account. In opposition to this sort of
approach, May argues for a ‘fine-grained’ rather than a ‘rough­
grained’ approach.
2 May uses the example of a surrendering soldier to show that
immunity from being killed in war is something that might vary over
time. He says that this disrupts ‘the bright-line character of the
principle of discrimination’. If surrendering soldiers can regain their
immunity from being killed in war, then why not naked soldiers, who
(like surrendering soldiers) do not pose a threat? If killing naked
soldiers is justified, then there must be a morally relevant difference
between naked soldiers and surrendering soldiers. It is not good
enough to say that combatants are always liable to be killed.

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 3.2 Combatant liability

Activity
Now that you have read both Walzer and May you are in a position to
make up your mind on the key questions. Is it obligatory – a matter of
duty – to kill naked soldiers? Is it permissible to kill naked soldiers? Write
down some reasons for your view.

Discussion
Walzer believes that we are permitted to kill naked soldiers. May thinks
we should not kill naked soldiers. May’s central concern is to distinguish
between the innocent and the guilty, or the innocent and the non­
innocent: those who have done something wrong and those who have
not. This picks out something morally fundamental, compared with a
simple criterion such as wearing a uniform, which only gives a rough and
ready guide.

In his support, May cites the views of the classical just war theorist
Grotius: ‘It is not sufficient that by a sort of fiction the enemy may be
conceived as forming a single body’ (quoted in May, 2005, p. 42).
Grotius comes close to Contingent Pacifism, which we discussed in
Chapter 1, and May also comes close to endorsing such a position. This
is because May wants us ‘to rethink the very strategy of using group
identifications here’ (2005, p. 43). It is not permissible to treat people
simply as members of groups.
Moreover, for May, guilt is not easy to determine. He compares those
who have chosen to take up arms with people who work in munitions
factories; this is the standard comparison for those who wish to widen
the circle of those who are liable to be killed in war. But he also
considers those who carry arms but do not intend to use them, and
those who politically back the conflict and would want to carry arms, if
given half a chance. The first of these look as if they pose a threat, but
actually do not; they wear uniforms and carry guns, but will not actually
harm anyone. The second do not look as if they pose a threat, but
potentially do; they do not wear uniforms or carry guns, but they are
zealots for the cause and would do harm if they had the opportunity.
Hence May argues that many of those who are supposedly liable to be
killed in war lack the mens rea – the intent to kill – which is normally
taken to be a precondition of guilt.

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Chapter 3 Targeting civilians and the doctrine of double effect

Again, as we have already seen, May rejects the idea that the liability of
soldiers is ‘fixed’ by the fact of their being soldiers, whether or not they
intend to fight, or whether they are actually fighting or taking a bath.
He denies that liability is a once and for all state; soldiers who
surrender, for example, are no longer liable to be killed. So why should
the same not apply for soldiers who are naked? Perhaps, instead, they
cross and recross over the ‘bright line’ at different times, and in
different circumstances.
However, May’s position faces some objections. One objection concerns
what is known as the ‘fog of war’. Even if the position that May
outlines is morally correct, it may not be helpful in guiding action in the
midst of battle; it is difficult in these circumstances to identify with any
degree of precision who is liable to be killed and who is not. It seems,
then, that we face two separate tasks. One is to work out the deep
morality – to specify who, morally, is liable to be killed, and who retains
their right not to be killed. The other is to work out rules of war that
soldiers will be able to follow in practice.
There is indeed something like the ‘fog of war’, and May, sensibly,
acknowledges this. But what does this show? One view might be that
the ‘fog of war’ justifies a group membership or ‘rough-grained’ account
of who is liable and who is not liable to be killed. But another view is
that we should start with an individual or ‘fine-grained’ account, in the
knowledge that sometimes we will be unable to follow it through.
A rough-grained account inevitably leads to injustices. When we make
moral judgements on the basis of rough-grained markers, such as group
membership, we necessarily eliminate or diminish morally relevant
differences between members of the group. That this is an injustice,
May thinks, is a reason for putting off the point at which we opt for a
rough-grained account as long as possible; that will usually mean not
shooting naked soldiers.
The question, then, is not: ‘Does the fog of war sometimes mean that
we cannot distinguish clearly?’ Everyone accepts that it does. The
question is: ‘What should be the default position in advance of the fog
of war?’ For May, the default position is different from Walzer’s. It is
that ‘we should treat people with compassion and humanitarian
concern, and only drop this if they pose a significant threat to our
security’ (May, 2005, p. 49).
According to May, then, we should ask of potential targets ‘Are they a
threat or are they in a vulnerable position?’ not simply, ‘Are they a

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 3.2 Combatant liability

combatant or a non-combatant?’ This is a matter of information

gathering. Is this an impossible demand to fulfil because of the fog of
war? May does not want to make war impossible; perhaps, in a modern,
information-intensive conflict, the demand can sometimes be met.
There is a further possible objection to May. As we have seen, May
claims that a person’s status as a threat changes over time, and soldiers
may be killed only at the time when they pose a threat. However, this
raises a difficulty for May. Threatening can be a second-order
phenomenon, as well as a first-order one: that is, I can threaten to
threaten. Naked soldiers may not directly pose a threat, but they do
pose a threat of posing a threat: a non-threatening soldier whom I do
not shoot may well go on to shoot me later on. (There is an example of
this in the film Saving Private Ryan.) Perhaps people who pose second­
order threats are liable to be killed. But, if so, it might start to look as if
the criterion of liability runs very wide indeed, and is in danger of
generating a criterion of liability that justifies indiscriminate war. This is
because the potential to threaten is something that virtually everyone
has, including civilian babies and children – after all, they will eventually
grow up.
In sum, May takes a particular view on two questions: the question of
whether our account should be rough- or fine-grained and the question
of what determines liability. His argument for a fine-grained approach
seems to diminish the number of legitimate targets; however, if we were
to include second-order as well as first-order threats, this would push
the number of targets back up again.

Activity
In order to think through the principle of non-combatant immunity a little
differently, you should now listen to an audio recording of an interview
with Helen Frowe, ‘Frowe on non-combatant immunity’. What is Frowe’s
account of the principle of non-combatant immunity? Does she think that
it is well founded?

Discussion
Frowe argues that the principle of non-combatant immunity is a principle
about who can be legitimately targeted in war. According to the principle,
combatants may be targeted and civilians may not be targeted. This
applies to all civilians and all combatants. This does not exclude the
possibility that civilians may permissibly be killed as a form of collateral
damage.

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Chapter 3 Targeting civilians and the doctrine of double effect

Frowe has a nuanced view of the principle of non-combatant immunity.

She is critical of overly narrow conceptions of ‘posing a threat’: she
thinks that the ‘naked soldier’ example gets its force from just such an
overly narrow conception – it is possible to pose a threat without actually
holding a gun. She suggests that an alternative basis for liability is that
someone makes a causal contribution to the war effort. The problem is
that this criterion does not map on to the distinction between civilians and
combatants. Other criteria of liability to attack, however, match up much
better to the combatant/non-combatant distinction. Frowe mentions the
idea of voluntarily entering into the armed forces, the idea you will recall
from Hurka’s discussion in Chapter 2. Here, consent seems to function
as the criterion of liability, and combatants consent in a way that civilians
do not. But you should recall that this account of liability to being killed
faced some serious objections.
If the right account of liability does not map onto the distinction between
combatants and non-combatants, the rules of war look wrong. Frowe
responds to this objection by suggesting that the principle of non­
combatant immunity, though inaccurate, is the best bet to minimise unjust
killing. She rejects the idea that Pacifism might be the best response to
the mismatch; this is because the Pacifist option might allow a lot of
unjust killing to take place – more unjust killing than is due to the
mismatch between the right criterion of liability and the combatant/non­
combatant distinction.

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 3.3 Killing non-combatants and the doctrine of double effect

3.3 Killing non-combatants and the

doctrine of double effect
When we think about the principle of non-combatant immunity, we
think about dividing people into two groups: those who are liable to be
killed in war, and those who are immune from being killed. But when
I introduced the principle, I said that it involved killing or trying to kill.
That is, it is concerned with intentionally killing someone or targeting
them. There is an important difference between these claims: about the
wrongness of killing someone, and the wrongness of intentionally killing
them. We will turn to that now.
I am going to outline what I will call the doctrine of double effect, or
DDE. It is sometimes, though less often, called the principle of double
effect. This is because the word ‘doctrine’ sometimes has a pejorative
sense: it carries the sense of a belief that is accepted on faith or
authority, without a reasonable basis. However, because it is the phrase
most commonly used, I shall still use the term ‘doctrine’, though I do
not intend this pejorative sense.
The DDE starts from a distinction between two sets of effects that
follow from an act: effects that are directly intended and side-effects
that are not intended, but are foreseen. There is an important
psychological difference between these two sets of effects. When
someone acts, the effects that they intend to bring about give them a
reason for acting: the agent acts in order to bring about the effects that
they intend. In contrast, the effects that they do not intend, but merely
foresee, do not give them any reason to act. Indeed, they might regret
the fact that their action has these unintended effects. According to the
DDE, this difference is not only psychologically important, it is morally
important too.
There is a second distinction we might make. We might distinguish
between effects that someone can foresee, and effects that they cannot
foresee. Sometimes, because of some bizarre confluence of
circumstances, an action can have extraordinary consequences. Perhaps
a member of the audience at a TV election special sneezes. This
distracts a cameraman, who shifts his camera to the leading candidate,
who, believing himself to be off-air, is seen tapping obscenities into his
mobile phone. Consequently he loses the election, and it was down to
the sneeze. However, the audience member could not have foreseen
that their sneezing at that moment would have had such dramatic

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Chapter 3 Targeting civilians and the doctrine of double effect

effects. The DDE, though, is not concerned with this distinction. It is

concerned only with effects that the agent does foresee – those that are
foreseen and intended, and those that are foreseen but not intended.
Here are two examples where this distinction seems morally relevant.
First, suppose a doctor has a terminally ill patient who is in great pain.
The doctor administers several large doses of pain killers. These have
the intended and good effect of reducing the pain felt by the patient.
They also have the foreseeable and bad effect of shortening the patient’s
life. The DDE tells us that it might be permissible to administer the
pain killers, even though the action has a foreseeable bad effect, an
effect that would normally make the action impermissible. It is
permissible precisely because the doctor does not intend to shorten the
patient’s life: this is not what she is trying to achieve.
Again, suppose some villainous person attacks you. You hit out at them,
intending to defend yourself, but you foresee that your action will cause
their death. According to the DDE, your action may be morally
permissible. Because you do not intend their death, but merely foresee
it, your action is morally different from the action of someone who
intends the death of their attacker.
The idea, then, is that an act can sometimes be justified, even if the
agent foresees that it will have bad effects, provided that the agent does
not intend these effects. Hence the DDE widens the scope of justified
actions: it permits actions that would otherwise not be permitted. Some
just war theorists have appealed to the DDE in order to justify actions
that cause the death of non-combatants, actions that might be thought
to be ruled out by the principle of non-combatant immunity. In other
words, they have argued that it is not just the effect – the killing of
non-combatants – that matters, but also whether this was the intention
of the agent.

Criticising the doctrine of double effect

Walzer defends a modified version of the doctrine of double effect in
Just and Unjust Wars. He argues that the form of the doctrine is more or
less right:

the ‘good’ and evil effects that come together, the killing of the
soldiers and nearby civilians, are to be defended only insofar as
they are the product of a single intention, directed at the first and

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 3.3 Killing non-combatants and the doctrine of double effect

not the second. The argument suggests the great importance of

taking aim in wartime, and it correctly restricts the targets at which
one can aim.
(Walzer, 1977, p. 153)

If it is permissible to fight a war at all, then, in almost all cases, it must

be permissible to carry out actions that pose a foreseeable risk to some
non-combatants, because that foreseeable risk is an inevitable part of
fighting a war. In Walzer’s view, the DDE is a way of reconciling the
absolute prohibition on killing civilians with the legitimate conduct of
military activity. So, it follows that a possible motive for adopting the
DDE is to avoid a Contingent Pacifist position. You may get a whiff of
the cart going before the horse here – perhaps we ought to adopt a
Contingent Pacifist position, because it is the right position to adopt.
There is perhaps something a bit discreditable about adopting a
doctrine (here, the DDE) in order to avoid taking a particular position
(here, Contingent Pacifism) to which one is averse. Maybe one simply
should not be averse to it, but bite the bullet. On the other hand,
perhaps you will judge that the DDE does offer good grounds for
discriminating between justified and unjustified acts.
Nevertheless, one common reaction to the DDE is to think that it is
just a bit too handy at providing excuses for acting wrongly. This is
especially the case when we move out of the area of medical decisions
and into the area of war. This may be because, when we judge the
motivations and intentions of medical personnel, it seems sensible to
assume that they are trying to do good, to save lives. Soldiers, on the
other hand, whether or not they have good intentions overall, are trying
to kill (some) people. So we might be more suspicious of motives in
cases of war. And the DDE places a great deal of emphasis on motives.
But there is another, more general, concern that might be raised about
the DDE. The DDE turns on a distinction between intending and
(merely) foreseeing. ‘Intending’ and ‘foreseeing’ are verbs that describe
psychological states. So the DDE implies that an action of mine is
permissible when I am in one kind of psychological state (merely
foreseeing) and impermissible when I am in a different psychological
state (intending). Nothing about the external properties of the act need
change for it to switch from being impermissible to being permissible.

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Chapter 3 Targeting civilians and the doctrine of double effect

All the action is inside my head. To some theorists, this seems odd.
Judith Jarvis Thomson makes this point very effectively:

Suppose a pilot comes to us with a request for advice: ‘See, we’re

at war with a villainous country called Bad, and my superiors have
ordered me to drop some bombs at Placetown in Bad. Now
there’s a munitions factory at Placetown, but there’s a children’s
hospital there too. Is it permissible for me to drop the bombs?’
And suppose we make the following reply: ‘Well, it all depends on
what your intentions would be in dropping the bombs. If you
would be intending to destroy the munitions factory and thereby
win the war, merely foreseeing, though not intending, the deaths of
the children, then yes, you may drop the bombs. On the other
hand, if you would be intending to destroy the children and
thereby terrorize the Bads and thereby win the war, merely
foreseeing, though not intending, the destruction of the munitions
factory, then no, you may not drop the bombs.’ What a queer
performance this would be! Can anyone really think that the pilot
should decide whether he may drop the bombs by looking inward
for the intention with which he would be dropping them if he
dropped them?
(Thomson, 1991, p. 293)

Thomson’s rhetorical question invites us to say no. Dropping a bomb

on a children’s hospital is a terrible thing to do. If Thomson is right, its
justification cannot rest on the difference in my psychological states as
I push the bomb release button.1
There are, though, two different explanations of why the justification
cannot rest on this. The first is that the difference in my psychological
states does not matter at all. The second is that the difference does not
matter enough. If we opt for the first of these – if we insist that the
intending/foreseeing distinction does not matter at all – then we will
have trouble explaining the cases I mentioned earlier (the case of the
doctor and the case of self-defence). This might be an avenue you wish
to take. But, if not, it looks as if you need to insist that the distinction
between intending and foreseeing does matter. But there still remains a
question: how much does it matter?

1
You may wish to compare this point with the argument presented by Mellow (2006,
p. 299), which was quoted in Chapter 1, Section 1.3.

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 3.3 Killing non-combatants and the doctrine of double effect

Amending the doctrine of double effect

In Just and Unjust Wars, Walzer responds to this kind of concern. He
does this by adding a qualification to the DDE. He suggests that it is
not enough that the bad effect is not intended by the agent; the agent
must also act so as to attempt to avoid or minimise the bad effect.
According to Walzer, then, there needs to be a double intention, not just
a double effect: the agent must not only intend a good effect, but must
also intend to minimise the bad effect.
To illustrate this point, Walzer discusses Allied raids on occupied France
and occupied Norway in the Second World War. In this situation,
commando raids were less injurious to civilians than low-level bombing,
and low-level bombing was less risky to civilians than high-level
bombing. But for the Allied combatants, the risks went in the opposite
direction: high-level bombing was the safest option, low-level bombing
was more dangerous, and commando raids were the most dangerous of
all. To say that the raids were morally permissible, Walzer argues, is to
imply not only that those involved did not intend to harm civilians, but
also that they took action to minimise the risk that civilians would be
harmed. (This is more likely to happen when the attackers have some
affinity with the civilians who are at risk. The Free French, for example,
engaged only in low-level bombing of occupied France. In this way they
took seriously the duty to protect civilians, even at the cost of increased
risk.)

Activity
Now listen to the audio recording of another interview with Frowe: ‘Frowe
on the doctrine of double effect’. What is Frowe’s assessment of the
doctrine? What criticisms does she make?

Discussion
Frowe describes the DDE as a ‘troubled doctrine’, though she
acknowledges that there are important differences between intended
ends and foreseen side-effects in many cases.
She explains ‘closeness’ concerns with the doctrine, so called because
of the closeness between what is intended and the foreseen but
unintended side-effect. The closeness criticism is that sometimes the
side-effect seems very close to what is intended – indeed, so close that it
is not plausible to claim that it was not intended. In the example she
cites, breaking a person’s shoulder with a hammer is not plausibly

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Chapter 3 Targeting civilians and the doctrine of double effect

described as the unintended but foreseen consequence of killing a fly on

their shoulder – with a hammer. In general, it is possible to redescribe an
action so that all the harmful consequences fall under the banner of
unintended but foreseen side-effects, and all the good consequences fall
under the banner of intended ends. It is also possible that someone
could, in fact, think this way: the problem is not one of sincerity. But this
looks unreasonable even if the agent is sincerely asserting that they
didn’t intend the ‘side-effects’ – they didn’t mean to break your shoulder.
However, Frowe does think that differences between ‘modes of agency’ –
the ways in which agents bring about consequences – seem to matter.
She thinks there are cases where it is obvious that it makes a difference
whether I choose to bring about an effect or not.
But there are problems in translating this difference through to military
examples. Frowe cites the philosopher Lionel McPherson to suggest that
the magnitude of the side-effects – dozens of civilian deaths –
overwhelms the moral weight of the distinction between foreseen side­
effects and intended ends (see, for example, McPherson, 2004). The
distinction may matter, but it does not matter enough.

We started with a relatively simple idea: fight only those who fight you.
Discriminate between combatants and non-combatants. But there are
plenty of competing accounts of what this might mean, in two particular
ways. First, whom do we distinguish between? Who is liable to a certain
sort of treatment and who is not? Second, how do we distinguish – in
what ways should we treat people differently? How we treat people
intentionally, and unintentionally, seems to matter. At the same time, we
might decide that we need to look for a different approach to the
problem. I will end this chapter by exploring an argument developed by
George Mavrodes. Mavrodes argues that we need to rethink the status
of the requirement to discriminate between combatants and non­
combatants.

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 3.4 Principles and conventions

3.4 Principles and conventions

Activity
Now read Reading 7 ‘Mavrodes on principles and conventions’ at the end
of this book. This is an extract from Mavrodes’s article ‘Conventions and
the morality of war’, which appeared in the journal Philosophy and Public
Affairs.
Once you have read the extract, answer the following questions:
1 At the start of the paper, Mavrodes describes a statesman facing a
dilemma. What is this dilemma?
2 What solution does the statesman propose?
3 What does Mavrodes think of this proposal?

Discussion
1 Mavrodes’s example is of a statesman who wants to go to war in a
just cause. (We might remember here the paradigm case of a just war
– a defensive war against an unprovoked attack, perhaps invasion.)
However, the statesman realises that the costs of fighting will be very
high, meaning that the war cannot be fought in a proportionate way.
So the statesman is in a position where he may not wage a defensive
war against invasion because, although the harms of invasion will be
very great, the cost of the war will be even higher. He is faced with an
appalling choice, and just war theory appears to tell him to succumb
to invasion.
2 However, the statesman considers an alternative: get agreement with
the potential invaders that the dispute should be resolved by a
combat of champions. For this to work, there will need to be an
understanding between both parties that the victor’s country wins the
dispute, and the country whose champion is defeated loses the
dispute and must call off their invasion/submit to invasion, just as if
they had lost the war.
3 This is a very attractive prospect, according to Mavrodes: it is a way
of limiting the cost of war.2 But, Mavrodes says, it is also ‘too utopian
to be given serious thought: losers would refuse to abide by the
outcome, and would fight the war anyway’.

2
One advantage of such an agreement is that it evens things up a bit: a small country

faced with invasion is likely to face appalling consequences if it resists a powerful and

belligerent antagonist, particularly one who has no scruples. So it will often appear that

the only morally permissible position is for such a nation to capitulate.

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Chapter 3 Targeting civilians and the doctrine of double effect

Figure 3.1 Send forward a single champion to fight in mortal combat:

Caravaggio, David Victorious over Goliath, c.1600, oil on canvas,
110 x 91 cm. Prado, Madrid. Photo: © Prado/The Bridgeman Art Library.

However, Mavrodes points out, this is not the end of the story. The
costs of war vary along a continuum as follows:

The costs of war: a continuum

Combat of champions Unrestrained total war

Low cost High cost

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 3.4 Principles and conventions

While the far left end of the continuum may be extremely difficult to
attain, Mavrodes suggests that it is possible to find a ‘middle way’ that
ensures that the costs of war are not so high as to always outweigh the
benefits of winning. If so, it will sometimes be possible to fight a war in
a way that is proportionate. For Mavrodes, this is the function of the
principle of non-combatant immunity; it does not reflect some ‘moral
fact’ about the status of a particular group of people, discoverable by
philosophers.
It is important to be clear about what exactly Mavrodes is and is not
arguing. He is not suggesting that we have no moral reason not to kill
non-combatants. He thinks that we do. But, he holds, the moral
obligation to avoid killing non-combatants arises from the convention that
non-combatants ought not to be killed, rather than the other way
around. Using an arrow to indicate justification, Mavrodes rejects the
view that:

An obligation not to kill non-combatants intentionally → the

convention of non-combatant immunity

Instead, he argues that:

The convention of non-combatant immunity → an obligation not

to kill non-combatants intentionally

Mavrodes makes a comparison with driving on the left – once such a

convention exists, we have an obligation to stick with it. The convention
that everyone drives on the left prevents accidents and reduces harm.
A convention that everyone drives on the right would have the same
effect: there is nothing about driving on the left or driving on the right
per se that is morally obligatory. What makes it obligatory is that there
is a convention that that is what one should do.
So, suppose that we have a general obligation to limit the harms of war.
The best way to do this is to divide a population into ‘targets’ and ‘non­
targets’, then make the ‘targets’ wear uniforms so as to avoid confusion
between the two. It seems plausible that this convention would work –
at least compared with a situation in which there was no convention at
all about who could be targeted and who could not.

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Chapter 3 Targeting civilians and the doctrine of double effect

That, then, is an outline of Mavrodes’s argument. But there are some

objections to it. One problem is that conventions depend on what other
people do – once people start breaking the convention, then the
convention starts to lose its usefulness – and it is only justified, in the
end, by its usefulness. In this case, if other armed forces begin to break
the convention, but one set of armed forces holds out, then there
would come a point where there is no convention – and so no moral
obligation – left. It would just be a quirk of one particular army that
they do not target non-combatants.

Activity
Look back at the last three paragraphs of Reading 7, and re-read the text
that begins ‘Now, if the relevant convention were operative’ (halfway
through the third-from-last paragraph) to the end of the extract. How does
Mavrodes respond to the objection I have just raised?

Discussion
Mavrodes’s response is that, in this situation, we ought to try to re­
establish the convention. He recognises that conventions are fragile,
perhaps particularly war conventions. And the costs are high: when
round-buying conventions among friends in a pub break down, there is a
certain loss of sociability and reciprocal trust, and perhaps you do not get
the pint you expected; when conventions about non-combatant immunity
break down, non-combatants get killed. But the high costs of convention
breakdown, according to Mavrodes, also point to a way to re-establish
the convention. One party might choose to bear those costs for a while in
order to signal their willingness to abide by the convention in future.

Given the costs of adhering to the principle of non-combatant

immunity when others do not, the offer will necessarily be time-limited.
If the offer is not accepted, Mavrodes cannot give us a reason to
continue to uphold the principle.

Activity
Finally, to consolidate and extend your work in this chapter, listen to the
audio recording ‘Lazar and McMahan on the morality and rules of war’.

88
 Summary

Summary
In this chapter we have examined the principle of discrimination
between combatants and non-combatants. The principle implies that
there is a crucial moral distinction between combatants and non­
combatants: the former, but not the latter, are liable to be killed in war.
As you have seen, however, the principle faces a number of difficulties.
One difficulty concerns the ‘bright line’ between combatants and non­
combatants: given that some combatants pose no threat, while some
non-combatants do, how is the line to be drawn? Another difficulty
concerns what the principle implies regarding the conduct of war. Does
it imply that those who wage war must avoid all risk to non­
combatants? If so, it will be all but impossible to fight justly. Or is it
possible to appeal to the doctrine of double effect to justify putting
non-combatants at risk? Finally, we have considered Mavrodes’s
suggestion that these difficulties are removed once we understand that
the principle of non-combatant immunity does not reflect a fundamental
moral distinction, but rests on a convention that those engaged in war
have good reason to accept.

Activity
You should now go to the A333 website for:

. information about the independent study associated with this chapter

. a quiz, which you can use to revise this chapter

. suggestions for optional further reading related to the chapter.

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Chapter 3 Targeting civilians and the doctrine of double effect

References
Lawrence, B. (ed.) (2005) Messages to the World: The Statements of Osama bin Laden,
London, Verso.
May, L. (2005) ‘Killing naked soldiers: distinguishing between combatants and
noncombatants’, Ethics and International Affairs, vol. 19, no. 3, pp. 39–53.
McPherson, L. (2004) ‘Innocence and responsibility in war’, Canadian Journal of
Philosophy, vol. 34, pp. 485–506.
Mellow, D. (2006) ‘Iraq: a morally justified resort to war’, Journal of Applied
Philosophy, vol. 23, no. 3, pp. 293–310.
Thomson, J.J. (1991) ‘Self-defense’, Philosophy and Public Affairs, vol. 20, no. 4,
pp. 283–310.
Walzer, M. (1977) Just and Unjust Wars: A Moral Argument with Historical
Illustrations, New York, Basic Books (4th edn 2006).

90
Chapter 4

Supreme emergency

Contents
Aims 95

Materials you will need 96

4.1 Introduction 97

4.2 Walzer’s account of supreme emergency 99

4.3 Objections to Walzer’s theory 103

Coady on supreme emergency and terrorism 103

A further problem for Walzer’s theory 104

Toner on the inexcusability of violating the JiB conditions 108

4.4 Torture and the ticking bomb 110

Baron and the ticking bomb scenario 112

Summary 118

References 119

 Aims

Aims
By the end of this chapter, you should:
. understand Michael Walzer’s account of ‘supreme emergency’
. be able to relate the theory of supreme emergency to wider moral
theories
. understand and assess some critical perspectives on Walzer’s theory
. understand the notion of a moral dilemma
. have acquired, through independent study, some knowledge and
understanding of the philosophical literature on torture and the
ticking bomb.

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Chapter 4 Supreme emergency

Materials you will need

You will need to listen to the following audio recording (available on
the A333 website):
. Frowe on the ticking bomb hypothesis.
You will need the following readings, which can be found at the end of

this book:

. Reading 8: Walzer on supreme emergency

. Reading 9: Coady on dirty hands and supreme emergency.

At the end of this chapter you will be directed to the A333 website for

guidance on independent study and other activities.

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 4.1 Introduction

4.1 Introduction
The preceding chapters have discussed the content of the rules of war
and their philosophical foundation. In this chapter, we will look at a
slightly different issue: their scope. Suppose, for the moment, that we
can settle some of the outstanding issues discussed in the previous
chapters and that we have a working theory of just war – a series of
conditions that specify the moral permissibility of killing in war,
provided that a series of conditions (JaB and JiB) are met. What is the
scope of this working theory? How stringent are these conditions? Can
they ever be put aside? This is a real, live, question. Do the rules of war
– the war convention, as Walzer (1977) calls it – apply under all
conditions, or might there be cases when they are overridden, or
suspended, or do not apply? Some people think that, when a nation is
facing a real and imminent existential threat (i.e. a threat to its
existence), it is exempted from the rules of war. They argue that, in the
face of very difficult circumstances, the rules of war might be
suspended and it might become permissible to do things that are
impermissible in the normal course of events – such as targeting
civilians. This is a version of a quite common general thought – that
some moral constraints become looser in extreme circumstances. We
will analyse this with more precision later, but here are some claims
(which I am not endorsing) that might help to convey the gist of
the idea:
. In the early years of the Second World War, after the fall of France,
Britain was largely (though not entirely) isolated in the face of Nazi
success in Western Europe. It was on the brink of disaster.
Indiscriminate bombing campaigns against German cities were then
justified.
. When faced with a ticking bomb, it may be permissible to torture a
terrorist to save many lives.
. In the face of an utterly ruthless opponent, the normal rules of
detention and trial have to be suspended. There is a trade-off
between civil liberties and security.
There are many more layers of complexity to be added to each of these
claims, but I hope that you see the general idea – that the rules of war
might be suspended in extreme circumstances. In examining this idea,
I will turn again to Walzer’s Just and Unjust Wars, in which he gives a
highly influential account of what he calls, following Winston Churchill,

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Chapter 4 Supreme emergency

‘supreme emergency’. Walzer focuses on the first of the scenarios

above. His view, roughly put, is that the bombing of German cities, for
a brief period in the Second World War, was morally justified. More
generally, he poses and answers the question thus:

Can soldiers and statesmen override the rights of innocent people

for the sake of their own political community? I am inclined to
answer this question affirmatively, though not without hesitation
and worry.
(Walzer, 1977, p. 254)

So, for Walzer, the Jus in Bello prohibition on the targeting of civilians
may be overridden in extreme circumstances. This position is, not
surprisingly, highly controversial. Brian Orend describes this part of
Walzer’s theory as ‘the darkest and most dangerous [aspect] of his just
war work’ (2000, p. 134).
The question of ‘supreme emergency exemptions’ is at the heart of
some important issues in contemporary political discourse. These
include the issue of ‘extraordinary rendition’ – a term applied to the
extra-legal transportation of suspected terrorists – and the ticking bomb
scenario, which has become a focus for political debate, especially since
the 11 September attacks on the World Trade Center and the Pentagon.
In moral theory, too, this issue seems to represent a critical pivot point –
a dividing line between two fundamentally different approaches to the
moral evaluation of actions. Overall, Walzer’s just war theory is – he
claims – a rights-based theory. On a rights-based theory, the question of
whether an action is right or wrong turns on whether it respects the
rights of the people it affects, not on whether it secures the best
consequences. Walzer often criticises the suggestion that a utilitarian
account of the costs and benefits of some proposed military action is a
helpful guide to its rightness or wrongness. But his account of supreme
emergency exemptions seems to invoke a kind of utilitarianism: when
the consequences of observing a prohibition on rights violation are so
large, then that prohibition can be overridden.
So this is a live political issue as well as crucial to the debate about
moral theory.

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 4.2 Walzer’s account of supreme emergency

4.2 Walzer’s account of supreme

emergency
Activity
Now read Reading 8 ‘Walzer on supreme emergency’ at the end of this
book. This is another extract from Walzer’s book Just and Unjust Wars.
This passage is quite rich, and in order to see what the underlying theory
is as clearly as possible, you may need to read it more than once. On
your first reading, concentrate on the questions that follow. These
questions are all asking for clarification of Walzer’s view, not for your own
view. The aim here is to get Walzer’s theory right, by working backwards
from his specific historical judgements to the theory that underlies them.
According to Walzer:
1 Was the bombing of German cities justified because of the complicity
of German civilians in the Nazi war effort?
2 Was the bombing of German cities justified by the need for reprisals?
3 Was the bombing of German cities justified by the desire for revenge?
4 Was the bombing of Hiroshima and Nagasaki justified by supreme
emergency (or other) calculations?
5 Was the bombing of Dresden in the spring of 1945 justified?
6 Was the bombing of German cities between late 1940 and early 1942
justified?
7 Did this bombing involve the killing of the innocent?
8 Did this bombing involve the targeting of the innocent?

Discussion
The answers to the first five questions are ‘No’ and to the last three
‘Yes’. If you came up with different answers, you may wish to look again
at the extract. In some cases the answers are not explicit, but they follow
from the overall shape of Walzer’s theory. For example, bombing a city
clearly involves targeting the innocent, on Walzer’s account, since, at the
least, children are innocents.

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Chapter 4 Supreme emergency

Figure 4.1 An aircrew of No. 149 squadron RAF disembark from their
Wellington at Mildenhall, Suffolk, after a bombing raid. Bombing raids on
German cities in 1941 were justified according to Walzer’s doctrine of
supreme emergency. Photo: B J Daventry. Imperial War Museum, image
number: C 431. Photo: © Imperial War Museum.

Activity

Now look back over Reading 8 with the following, more general,

questions in mind:

1 According to Walzer, what needs to be threatened for there to be a

state of supreme emergency?
2 To whom does the supreme emergency exemption apply?
3 What is the justification for a supreme emergency exemption?
4 If a state takes advantage of a supreme emergency exemption,
according to Walzer, does that state act rightly or wrongly, or is it
undecidable?

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 4.2 Walzer’s account of supreme emergency

Figure 4.2 ‘Rescue’ units recovering dead bodies in Dresden, 1945. The
bombing attacks on Dresden in 1945 were not justified according to Walzer’s
doctrine of supreme emergency. Photo: © akg-images.

Discussion
1 For Walzer, the justification of acts in conditions of supreme
emergency arises when there is the threat of a ‘moral catastrophe’.
The moral catastrophe that he has in mind is a German victory. He
suggests that such a victory was both frightening and imminent.
Moreover, in Walzer’s view, Nazism represents a moral catastrophe: if
it had been victorious, he suggests, the consequences would have
been ‘literally beyond calculation’. It is worth noting that, if Walzer
means what he says here, that poses great difficulties for any attempt
to calculate costs and benefits.
2 Walzer clearly claims that communities, not individuals, are the
agents in question. Compared with individuals, political communities
have a special importance. Their freedom and survival, he claims, are
‘the highest values of international society.’ Walzer is explicit about
the difficulties he has with this claim about the value of communities.
What is it about communities that mean they are the locus of these
different and larger prerogatives? We will return to this point.
3 According to Walzer ‘the issue takes this form: should I wager this
determinate crime (the killing of innocent people) against that

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Chapter 4 Supreme emergency

immeasurable evil (a Nazi triumph)?’ Walzer goes on to make some

important qualifications about the absence of alternatives, the
certainty/degree of certainty, the absence of self-deception, and so
on. He acknowledges that there is the residual possibility of a
(morally disastrous) mistake. But, he insists, ‘if all this is true, and my
perception of evil and imminent danger not hysterical or self-serving,
then surely I must wager.’ Hence, the justification of a supreme
emergency exemption seems to arise from the absence of reasonable
alternatives, together with a calculation of the risks. It is important to
notice that these are characteristically utilitarian considerations.
4 This is a difficult question, and we will return to it later. For now, it
looks as if Walzer’s view is that, in a supreme emergency situation,
a nation acts rightly if it overrides the rules of war.

As we have seen, Walzer’s argument hangs in part on the assertion that

fully fledged political communities can lay claim to supreme emergency
exemptions. In other words, Walzer is claiming that nation states in
positions of supreme emergency are justified in using means that ignore
the principle of discrimination – they are, that is, justified in using
terroristic methods. (There is a long and involved debate about how
best to define terrorism, which I want largely to bypass here. At the
core of most definitions, however, is the idea that civilians are targeted,
so the principle of non-combatant immunity is breached.)
Walzer’s argument, then, might be set out as follows:
1 In conditions of supreme emergency, appropriate agents may
justifiably avail themselves of exemptions to the principle of
discrimination, by targeting civilians.
2 Appropriate agents are nation states.
3 Therefore, nation states may justifiably target civilians in conditions
of supreme emergency.
In what follows, we will consider a number of concerns that have been
prompted by Walzer’s account. You will start by reading an extract from
an article by C.A.J. Coady in which he develops some objections to
Walzer’s argument. As you will see, Coady is particularly concerned with
the second premise of Walzer’s argument – the claim that nation states
have a special status.

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 4.3 Objections to Walzer’s theory

4.3 Objections to Walzer’s theory

Coady on supreme emergency and terrorism

Activity

Read Reading 9 ‘Coady on dirty hands and supreme emergency’ at the

end of this book. This is an extract from Coady’s paper ‘Terrorism,

morality, and supreme emergency’, which appeared in the journal Ethics.

Note that in his discussion Coady frequently refers to ‘dirty hands’. The

question of ‘dirty hands’ is a problem in political philosophy: should

politicians sometimes ignore fundamental moral demands in order to

secure the interests of their own communities? Coady takes Walzer’s

account of supreme emergency to be addressing a particular example of

this problem.

Once you have read the extract, answer the following question:

What, in brief, are Coady’s objections to Walzer’s theory of supreme

emergency?

Discussion

Coady makes clear that he has two objections: the first is that Walzer’s

theory has a ‘pro-state bias’, and the second is that the category of

supreme emergency is ‘conceptually opaque.’

Coady’s first point is that Walzer provides no clear argument for his
second premise. Why are nation states the only appropriate agents? Why
not include other kinds of agent – for example, national liberation
movements, and organisations that represent people who have not
achieved the status of legitimate states, such as (currently) the Palestine
Liberation Organisation (PLO) and the apartheid-era African National
Congress (ANC)? Coady is not alone in raising this challenge. Others,
such as Luban (1980), have suggested that Walzer’s position reflects an
unjustified bias towards the ‘romance of the nation state’.
Hence, for Coady, the argument ought to be reformulated:
1 In conditions of supreme emergency, appropriate agents may
justifiably avail themselves of exemptions to the principle of
discrimination, by targeting civilians.

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Chapter 4 Supreme emergency

2 Appropriate agents include both nation states and organisations

below the level of a fully recognised nation state.
3 Nation states and organisations below the level of a fully recognised
nation state may justifiably target civilians in conditions of supreme
emergency.
This, Coady suggests, is a proper reformulation of Walzer’s argument,
free from Walzer’s unjustified bias to the moral status of nation states.
But he does not think that this reformulated version is a good argument,
one we should endorse. Rather the opposite. In his view, the conclusion
is unacceptable. Why? Because, thinks Coady, we ought not to endorse
terrorism by non-state agents. In fact, we ought not to endorse
terrorism at all, by anyone: that would be a repugnant conclusion. Shorn
of its unjustified bias towards nation states, Walzer’s supreme emergency
argument leads us to exactly this repugnant conclusion. So there must
be something wrong with that argument. Rather than endorsing
terrorism, we ought to drop the supreme emergency theory.
How might Walzer respond to this objection? There are two obvious
possibilities: first, it might be possible to justify making a strong
distinction between nation states and other kinds of organisation. The
second option is to bite the bullet and deny that the conclusion in the
amended argument is a repugnant one, and instead agree that, under
supreme emergency conditions, organisations other than nation states
are indeed justified in targeting civilians.
Coady, though, has a further objection to this second move: it makes
the exemption too easy to get. In his account, Walzer seems to assume
that supreme emergency exemptions are very rare. But the suggested
amendment would make them much more widely available. For
example, it makes them available to organisations like the PLO which
do not have the status of a legitimate nation state. At this point, then, it
has become an ‘emergency exemption’ that is not that rare. At this
point, Coady suggests, the claim has become ‘conceptually opaque’; it is
simply unclear who should be permitted to lay claim to supreme
emergency exemptions and why we should draw the line in one place
rather than another.

A further problem for Walzer’s theory

As we have seen, Coady’s objections concern the implications of
Walzer’s argument. But there is another question that might be raised
here: what is the status of Walzer’s theory?

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 4.3 Objections to Walzer’s theory

Walzer holds that nation states fighting under normal conditions ought
to fight justly, and to obey the rules of war, in particular the JiB
conditions. They ought to respect the rights of civilians, non­
combatants, and they ought not to allow considerations of the overall
good to overcome those rights; civilian rights are not to be ‘traded off ’
in utilitarian fashion for military advantage. This applies even to the just
side in the war – the side whose victory would genuinely advance the
common good. His theory, then, is a rights-based and anti-utilitarian
theory. But we know also that there is a threshold – a high threshold, to
be sure, and passed with difficulty, when there is an immediate
existential threat to a political community. Once this threshold is passed,
the rules change. It is justifiable – and it may even be obligatory – to
target the innocent.
It looks, then, as if we have a rights theory for the ‘normal’ conditions
of war but a utilitarian theory in extremis – in conditions of supreme
emergency. But this is puzzling. Why do the criticisms of a utilitarian
approach fall away in conditions of supreme emergency? Is it right to
characterise Walzer’s theory in conditions of supreme emergency as a
kind of utilitarianism, where the ultimate value is the survival of
political communities? If so, that theory is at least internally consistent.
But it does not seem to be consistent with his overall rights-based
theory.
But perhaps this is not the right way to characterise Walzer’s theory.
One feature of utilitarianism, for which it is both praised and criticised,
is that it gives a definite answer about what we should do. Contrast this
with what Walzer says towards the end of Just and Unjust Wars:

Mostly morality is tested only by the ordinary pressures of military

conflict. Mostly it is possible, even when it isn’t easy, to live by the
requirements of justice. And mostly the judgments we make of
what soldiers and statesmen do are singular and clearcut; with
whatever hesitations, we say yes or no, we say right or wrong. But
in supreme emergencies our judgments are doubled, reflecting the
dualist character of the theory of war and the deeper complexity of
our moral realism; we say yes and no, right and wrong. That
dualism makes us uneasy; the world of war is not a fully
comprehensible, let alone a morally satisfactory place.
(Walzer, 1977, pp. 326–7)

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Chapter 4 Supreme emergency

(Note that ‘realism’ here is used in its ordinary colloquial sense, not in
the technical sense in which it was discussed in Chapter 1.)
This description of the theory of supreme emergency is at odds with
the account given above: the indeterminacy of ‘yes and no’ is the
opposite of utilitarian determinacy. (It contrasts too with the account
given in one of Walzer’s later books, Arguing about War – in a situation
of supreme emergency, ‘a certain kind of utilitarianism reimposes itself ’,
this being ‘the utilitarianism of extremity’ set against ‘a rights normality’
(2004, p. 40).) Utilitarianism tells us that there is a right thing to do, and
what makes an action right: it offers what is sometimes called a
‘criterion of rightness’. (Whether or not it also offers a way of finding out
what that action is – offering a ‘decision procedure’ – is perhaps
controversial: maybe there is a right thing to do, but we cannot know
what it is.) But theories that offer a criterion of rightness cannot assert
that an action is right and wrong. According to utilitarians, it is simply
right, not ‘right and wrong’, to choose the lesser of two evils. If we are
in conditions of supreme emergency, and we adopt utilitarian calculation
to guide us, then we will act rightly, not rightly and wrongly. Our actions
will be justified, not indeterminate, and we will say yes, not yes and no.
What can be done to resolve this tension in Walzer’s account? There
are, in my view, at least four possible resolutions, and they are
significantly incompatible:
1 Supreme emergency permissions are a sort of utilitarianism of
extremity. Deliberate killings of innocents under supreme emergency
conditions can be right acts. The problem with this view is that, in
Just and Unjust Wars, Walzer asserts a theory that is anti-utilitarian
and rights-based, so his position overall appears to be inconsistent.
2 Supreme emergency permissions are analogous to the right of self­
defence against morally innocent threats. To make this analogy work,
we need to insist that an individual is permitted to kill the innocent
in order to protect themselves from lethal threat. The suggestion
would then be that, by analogy, a nation state is permitted (or even
required) to target the innocent under conditions of supreme
emergency, when it too is acting to defend itself against a lethal
threat. The problem with this view is that it is far from clear that
individuals are permitted to kill the innocent, even under these
circumstances. Suppose that I am being attacked: is it permissible for
me to grab the nearest passer-by and use them as a human shield?
Many people would deny this.

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 4.3 Objections to Walzer’s theory

3 Supreme emergency permissions are paradoxical: deliberate killings of

innocents under supreme emergency can be actions that are – at the
same time – both right and wrong. Walzer seems to be giving this
sort of account when he writes about saying ‘yes and no’ to such
acts. The problem is that this seems to abandon a basic commitment
to logical coherence.
4 Supreme emergency exemptions are a tragic response to a genuine moral
dilemma. Acts permitted by supreme emergency conditions are
wrong, but can be excused.
To explain this last suggestion, I am going to cite a more everyday
example. Suppose Fred has promised to marry Hilda. However, Fred
has also behaved very badly, with Louise, who is pregnant as a
consequence. Now, Fred has obligations to both Hilda and Louise. He
cannot fulfil both, and whatever he does, he will do wrong to one of
them. If he fulfils his obligation to Hilda, he abandons Louise, and vice
versa. Fred cannot now act rightly; he can only act wrongly.
One reason that critics of consequentialism like this sort of example is
that it does not seem appropriate to start by taking a consequentialist
approach to Fred’s situation. The natural first reaction is not to try to
settle what Fred should do next by weighing up the costs and benefits
of each alternative. Rather, it is to say ‘What terrible behaviour by Fred!
He should never have got himself in this situation in the first place!’
Fred, it seems, has got himself into a terrible situation, and there is no
longer a right thing for him to do. Whatever he does next will be
wrong. In the example that we are considering, a nation state is faced
with its extinction unless it targets civilians on the threatening side. The
suggestion that supreme emergency exemptions are a response to moral
tragedy is the claim that – like Fred – the nation state cannot act rightly.
Either option is wrong.
There is though a further question we could ask about these cases. Do
these agents have an excuse for what they do? In Fred’s case, the
answer seems to be ‘no’: the situation is of his own making. At the
opposite end, the nation state and its leaders may not be responsible for
their situation. Moreover, the alternative that they face is catastrophic.
In this case, then, it might be suggested that the nation state and its
leaders can at least be excused for what they do.
So, we have seen that Walzer’s theory of supreme emergency stands in
need of rigorous reformulation. It is open to a number of incompatible
interpretations. While there are different tracks to follow, the best

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Chapter 4 Supreme emergency

interpretation seems to me to be the last one, which explains the theory

in terms of the excusability of an action when the agent is faced with a
genuine moral dilemma. But even if this is the best interpretation of
Walzer, that doesn’t make the theory true. Perhaps it is simply wrong to
view violating the principle of non-combatant immunity, even in
conditions of supreme emergency, as excusable.

Toner on the inexcusability of violating the JiB

conditions
The arguments outlined above have rested on the assumption that
supreme emergency exemptions are justified by the unacceptably
catastrophic consequences of the alternative – the extinction of a whole
people. But there are philosophical voices that question even this
assumption – that such consequences really are unacceptable. The
power of Walzer’s position derives in part from his asking ‘what is the
alternative?’ This is not merely a rhetorical device. What really is the
alternative to a supreme emergency exemption? Consider here the
argument of Christopher Toner, who takes a quite general line of
opposition to Walzer’s theory of supreme emergency exemptions
(or SEE).

The theoretical cost of rejecting (SEE) is small. Accept what we all

usually take to be true (that one may attack only one’s attackers),
and you find yourself in a different sort of company from that of
Bentham, Hobbes or Hegel – instead you find yourself with Locke
and Kant, say, or Vitoria. At this point (SEE)-advocates would
certainly be justified in pointing out that the price we pay in
practice can be terrible – possibly our deaths and the destruction
of our culture and morality. But pace Hobbes, there are things so
bad that it is better to die than to do them. Walzer and Rawls both
accept this, but recoil when the death of which we speak is that of
a whole people. And yet whole peoples, like individual people,
eventually perish. One person can make his life a success by dying
rather than doing evil; why not a whole people? The culture and
morality of a people that so strikingly ended would not be
forgotten, I think, nor would we regard as a failure a people that
perished earlier rather than later, in good form rather than in
decrepitude and dissolution, because it refused to yield to what
Walzer calls the rule of a necessity that knows no rules. As Walzer
himself puts it … ‘in the context of a terrible coerciveness, soldiers

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 4.3 Objections to Walzer’s theory

most clearly assert their freedom when they obey the moral law’.
Perhaps the same should hold for statesmen and their people.
Rejecting (SEE) carries a high price, yes; but perhaps the moral is,
as Kant said, precisely that which is beyond price. Fiat justitia,
pereat mundus?1 Provided that we set aside the petty sentiments
often associated with this saying, perhaps so. We and the world
will perish anyway, sooner or later; we cannot change that. But we
can at least, in so far as is in our power, let justice be done while
we live.
(Toner, 2005, p. 561)

Toner’s criticism has the merit of at least making explicit the

assumption that any alternative must be preferable to the extinction of a
political community. He makes it explicit in order to deny it.
Nonetheless, it is a difficult position to hold in the knowledge of the
several genocidal and attempted genocidal projects of the last two
centuries. Does anything hang on the moral value of communities,
distinct from the individuals who constitute them? Walzer and Rawls
‘recoil’ at the death of a whole people, and perhaps they are right to do
so. I will leave you to consider the morally relevant differences between
the deaths of (many) individuals and the death of a whole people.

1
Fiat justitia, pereat mundus means ‘Let justice be done, though the world perish’. It was the
motto of the Holy Roman Emperor Ferdinand I and was cited approvingly by Kant in
‘Perpetual Peace’, his political tract of 1795.

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Chapter 4 Supreme emergency

4.4 Torture and the ticking bomb

I suggested at the beginning of this chapter that there were several
variants of the supreme emergency problem. One of these arises from
the recent discussion of torture, ‘extraordinary rendition’ and other
infringements of the ‘war convention’ in global politics after
11 September 2001. The analogy between Britain in 1940 and the USA
after 9/11 is not exact (no analogies are exact), and perhaps not even
close, but the formulation of the problem is often as follows: under
normal circumstances, it is mandatory to respect rights, including the
rights of enemy combatants and prisoners of war. These rights include
rights against summary execution after surrender, the right not to be
used as a hostage and rights against torture. But in extreme conditions,
extreme measures – measures that violate some or all of these rights –
can be justified.
Discussion of this question has often focused on what has become
known as the ‘ticking bomb hypothesis’. This is presented in a number
of importantly different ways, but the core idea is as follows. Suppose
that you know that terrorists have planted a bomb, with a timer, in a
place where it will kill many innocent people. You have captured one of
the terrorists, but they will not tell you where the bomb is. You have
little time, and it seems that you could torture the suspect to force them
to tell you where the bomb is, so that you could defuse it. Under these
circumstances (it is suggested) you ought to torture the terrorist, in
order to save many innocent lives. And this shows (it is further
suggested) that opposition to torture is not absolute: there may be some
circumstances in which torture is justified.

Immanuel Kant on treating people as ends

The views of Immanuel Kant (1724–1824) have been extremely
influential in moral and political philosophy. Key to Kant’s moral
theory is the claim that people – rational moral agents – have a
special moral worth or dignity. What this implies, according to
Kant, is that it is always morally wrong to treat a person purely as
a means to an end. People are not instruments, to be turned to
any use, and they must not be used solely as instruments. This
constraint must be observed, no matter how bad the
consequences. Hence Kant’s view is deeply opposed to

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 4.4 Torture and the ticking bomb

consequentialism. In contrast, philosophers who adopt a rights­

based moral theory often begin from a Kantian position.
There are many kinds of action that are obviously ruled out by
Kant’s dictum: enslaving people for someone else’s convenience,
murdering someone for their money, or bullying someone for one’s
amusement are some obvious examples. Kant’s dictum also rules
out torturing the terrorist in the ticking bomb case: torturing
someone (as opposed, say, to reasoning with them) involves
treating them as an instrument. You may not do this, even to
avoid catastrophic consequences. We have had a slogan that sums
this up above: Fiat justitia, pereat mundus.

Activity
Does the ticking bomb argument show that we ought to moderate our
opposition to torture?

Discussion
I am not going to give a straight answer myself, and I am not going to
provide you with a detailed discussion of this issue here. Instead I shall
introduce you to the topic, so that you can follow it up for yourself
independently. But you should notice parallels with the discussion of
supreme emergency. There is a common principle underlying the
argument for supreme emergency exemptions and the ticking bomb
argument: in extremis, violations of the war convention may be justified.
Moreover, the debate has a similar shape: some theorists permit
exemptions to the no torture rule in extremis, while others adopt a
Kantian position – insisting that the no torture rule must be maintained
even in extreme conditions.

There are also features of the discussion that it is worth noticing. A few
commentators take a second-order view of the debate over the
permissibility of torture in extremis. They argue that, whatever judgement
we make about the first-order question of the morality of torture, any
discussion of it makes the use of torture more likely. If the permissibility
of torture becomes the object of philosophical debate, this weakens the
power of an absolute prohibition on the use of torture – whether that
prohibition itself is right or not. On one line of argument, even if

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Chapter 4 Supreme emergency

torture might be permissible in some, extreme, circumstances, still we

should not debate the matter, because such debate opens out options
and makes them more thinkable. Simply in raising the debate here, in
this Open University module, and suggesting that you might investigate
it, I am clearly setting myself against this second-order line of argument.
It seems to me both unnecessary and unfeasible to close off debate in
this way, provided that the debate is carefully conducted.

Activity
Now listen to a discussion of these issues in the audio recording ‘Frowe
on the ticking bomb hypothesis’.

Discussion
Frowe is at least somewhat sympathetic to the ticking bomb hypothesis,
and thinks that it has some use in developing consistent thinking about
torture. Her claim is that considering a ticking bomb scenario allows us to
hold some variables constant, and to alter the other variables. She also
makes the point that many of the variables are not bivalent but, precisely,
variables. We might be absolutely certain, fairly certain or rate the
chances as 50/50 that we have the correct person in custody, and so on
with the other variables. How the variables vary makes a difference.

While Frowe explains how thought experiments work, this does not
mean that the debate about the ticking bomb case is unproblematic.
There is a further nuanced view about the nature and status of the
philosophical work that is going on here. I shall end this chapter by
introducing you to an argument that has been developed by Marcia
Baron. The point of her argument is not to argue for a particular
response to the ticking bomb scenario, but to question whether there is
anything interesting to learn from cases of this kind.

Baron and the ticking bomb scenario

One objection to the ticking bomb argument is that the ticking bomb
scenario is unrealistic. Hence any intuitions or ‘results’ derived from it
are unlikely to be helpful in real-world situations or as guides to public
policy. In the real world, there are always alternatives. A related point is
to take a more serious look at the consequences and side-effects of
weakening any absolute prohibition on torture. In an important paper,

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 4.4 Torture and the ticking bomb

Bufacchi and Arrigo (2006) argue that there is an overwhelming

consequentialist case against such weakening. While the arguments made
by Bufacchi and Arrigo are persuasive, there is perhaps a nagging – and
distinctively philosophical – doubt that keeps arising: ‘yes, but what
if …?’ Baron’s argument seeks to address that nagging concern.
Here, I will guide you through a key part of Baron’s paper. One of the
interesting features of the paper is that Baron takes a rather unexpected
line of argument against the ticking bomb argument. Although Baron is
a Kantian, she does not appeal to Kantian considerations here. This is
because she wants to convince people who do not share this outlook.
There is a lot of good material in the Baron paper, but I want to focus
on one particular argument.
I should say straight away that Baron’s argument turns on consideration
of a morally outrageous and highly offensive scenario. As I shall explain
in the discussion that follows the passage from her paper reproduced
below, Baron does not do this gratuitously: her argument depends on
the offensive character of the scenario. The A333 module team has
given considerable thought to the best way to present this material. Our
intention is not to shock you, but to enable you to understand and
think about Baron’s argument.
Baron presents her argument as follows:

Switch for a moment from torture to rape. Suppose that in some

very weird scenario, perhaps involving a demented character like
Jack D. Ripper from Dr. Strangelove [a film in which a
psychopathic US air force commander Jack D. Ripper launches a
nuclear attack on Russia] a horrible catastrophe – the detonation
of nuclear bombs – could be prevented only by raping or abetting
a rape. (If it helps, add to the example that one has to rape a
child, and has to do so in front of the child’s family and one’s own
family.) We do not in any way deny that rape is impermissible –
nor do we deny that our objection to it is based on principle – if
we do not rule out the possibility that were this absolutely the only
way to prevent a horrific catastrophe, and we knew it would
prevent it, choosing to do so would not be wrong in those
circumstances. … It is not as if believing that X is wrong on
principle – even horribly wrong – entails denying that there could
be a scenario in which X would be a permissible choice. That we

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Chapter 4 Supreme emergency

allow this doesn’t mean that X can be permitted any time the
benefits of permitting it outweigh the costs.*
We are expected to be prepared to answer questions about
whether we would torture, or want others to torture, in a ticking
bomb scenario, yet are not expected to answer questions about
whether we would be willing to rape someone, or order or abet a
rape, if that were necessary to prevent a catastrophe of massive
proportions. Both scenarios are very unlikely, but torture is treated
differently. I believe it is treated differently only because we are
still bedeviled into thinking that torture is generally effective, and
that therefore in a ticking bomb scenario, or perhaps even in a
situation where we think there may be plans to bomb a city,
torture is – from a strictly pragmatic standpoint – your best bet
for obtaining the crucial information. We have not fully abandoned
the idea that torture will work when nothing else will. Despite the
fact that most of us really do know better, torture retains its status
as the method of choice – as what you’ll do if you really want to
get the job done.
*
It is worth noting here that Kant, despite his position that suicide is
impermissible, raised the following question, to which he did not offer an
answer: ‘A man who had been bitten by a mad dog already felt hydrophobia
coming on. He explained, in a letter he left, that, since as far as he knew the
disease was incurable, he was taking his life lest he harm others as well in his
madness (the onset of which he already felt). Did he do wrong?’ (MM
6:423–424, Gregor translation, Cambridge ed., 1996.)

(Baron, 2013)

Commentary on Baron
Here is a version of the ticking bomb argument:

Premise 1: In a constructed ticking bomb case, it is morally

permissible to torture a terrorist to reveal the location of a ticking
bomb.
Premise 2: A constructed ticking bomb case is relevantly similar to
some real-world situations.

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 4.4 Torture and the ticking bomb

Conclusion: It is morally permissible to torture terrorists in some

real-world situations.

The argument, as I have constructed it, is valid: that is, the truth of the
premises would secure the truth of the conclusion. But is it sound? Are
the two premises true?
As we have seen, a Kantian would deny the first premise. I think we
can see why Baron does not take this step in the argument: it would be
a poor argumentative strategy, indeed would beg the question. Whether
the standard Kantian objection to premise 1 (P1) is right or not, the
constituency of people to whom it would appeal is quite narrow. If you
are already part of that constituency – you already think that we should
never, in any circumstances, treat people solely as a means to an end –
then you will not need much persuading about the wrongness of
torture, even in ticking bomb situations. If you are not in that
constituency, then the principle will not have much purchase for you in
the first place. For that reason, focusing on P1 is not a good persuasive
strategy.
Let’s turn to premise 2 (P2). Here the objection is that ticking bomb
scenarios are not relevantly similar to any real-world situations.
Consequently, even if P1 is correct, the implication does not carry
through to any actual situation. The ticking bomb scenario should have
nothing to do with our actual attitude to torture, because the
constructed case and the real-world scenarios are not relevantly similar.
Baron’s paper outlines many of the key disanalogies, and she directs
some scorn at the ‘stupid’ scenarios constructed to try to demonstrate
the purchase – or lack of it – of ticking bomb cases on real-world
policy.
But the key part of her paper is the extract that you have just read.
There, she outlines a scenario that she takes to parallel the ticking bomb
situation. Baron asks us to consider a constructed case in which we may
stop this nuclear holocaust by acceding to the psychopath’s demand,
and aiding the rape of a child in front of their family.
This is the highly offensive example. It needs to be highly offensive in
order to make the point that Baron wants to make. Baron’s aim in this
argument is to undermine the assumption that extreme cases,
considered in the abstract, can have interesting or significant moral
implications. To make this point, the example needs to be a really

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Chapter 4 Supreme emergency

extreme case of the violation of the rights of an innocent person. So,

while the example is offensive, it is not gratuitous.
Baron is asking us to consider the following argument (of course, she
does not endorse this argument):

Premise 1: In Baron’s alternative case, it is morally permissible to

rape a child in front of their family.
Premise 2: Baron’s alternative case is relevantly similar to some
real-world situations.
Conclusion: It is morally permissible to rape a child in front of
their family in some real-world situations.

Again, the argument is valid: the truth of the premises would force us
to accept the conclusion. Considering this example, we might want to
say no, in Kantian fashion, or yes, reluctantly, and concede that in the
circumstances outlined it might be morally permissible, or even morally
obligatory, to rape the child.
Baron’s point, though, is that, even if we say yes – even if we agree to
P1 of the argument – this means nothing for the permissibility of child
rape in general. It does not mean, in the real world, or in general, that
child rape is permitted, or that opposition to child rape is not a matter
of principle, or that we ought to be a little bit more lenient in our
policy on child rape. This is because premise P2 in the argument from
Baron’s alternative case is clearly false. There are no real-world situations
in which it is necessary to aid the rape of a child in front of their family
in order to avoid a nuclear catastrophe. There are no real-world cases
that are relevantly similar to this one. Baron’s alternative case – whichever
way we react to it – should have no impact on our thinking about real­
world cases of child rape, or whether our opposition to it is a matter of
principle, or what our general policy on safeguarding children ought to be.
And the same goes for the ticking bomb argument. The point of
Baron’s argument is that – even if we say a reluctant yes in the
constructed ticking bomb scenario – this means nothing for real-world
cases of torture, it means nothing for whether our opposition to torture
is a matter of principle, and it means nothing for our general policy on
torture. The ticking bomb argument shows nothing about the morality
of torture.

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 4.4 Torture and the ticking bomb

Baron, then, has provided us with some reasons for scepticism about
the status of ticking bomb scenarios, and a reason to stand back from
the claims that they are supposed to generate. There is room for further
debate about whether Baron’s objection entirely closes off discussion of
thought experiments involving torture, but it does help in making
explicit – and perhaps widening – the gap between such thought
experiments and actual policy on torture.

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Chapter 4 Supreme emergency

Summary
In this chapter we have looked in some detail at two different situations
in which it is sometimes argued that extreme situations call for the
overriding of normal moral rules: situations of supreme emergency and
the ticking bomb scenario.

Activity
You should now go to the A333 website for:

. information about the independent study associated with this chapter

. a quiz, which you can use to revise this chapter

. suggestions for optional further reading related to the chapter.

118
 References

References
Baron, M. (2013) ‘The ticking bomb hypothetical’ in Timmons, M. (ed.)
Disputed Moral Issues: A Reader, 3rd edn, Oxford, Oxford University Press.
Bufacchi, V. and Arrigo, J.M. (2006) ‘Torture, terrorism and the state: a
refutation of the ticking-bomb argument’, Journal of Applied Philosophy, vol. 23,
no. 3, pp. 355–73.
Luban, D. (1980) ‘The romance of the nation-state’, Philosophy and Public Affairs,
vol. 9, no. 4, pp. 392–7.
Orend, B. (2000) Michael Walzer on War and Justice, Cardiff, University of Wales
Press.
Toner, C. (2005) ‘Just war and the supreme emergency exemption’, Philosophical
Quarterly, vol. 55, no. 221, pp. 545–61.
Walzer, M. (1977) Just and Unjust Wars: A Moral Argument with Historical
Illustrations, New York, Basic Books (4th edn 2006).
Walzer, M. (2004) Arguing about War, New Haven, CT, Yale University Press.

119
Readings

Contents

Reading 1 Orend on Realism 125

Reading 2 Walzer on the moral equality of soldiers 128

Reading 3 McMahan on the moral equality of

combatants 132

Reading 4 Hurka on the moral equality of soldiers 138

Reading 5 Walzer on killing naked soldiers 143

Reading 6 May on the problem of the naked soldier 146

Reading 7 Mavrodes on principles and conventions 149

Reading 8 Walzer on supreme emergency 155

Reading 9 Coady on dirty hands and supreme

emergency 162

 Reading 1 Orend on Realism

Reading 1 Orend on Realism

Source: Orend, B. (2008) ‘War’ in Zalta, E.N. (ed.) Stanford
Encyclopedia of Philosophy [Online]. Available at http://plato.
stanford.edu.libezproxy.open.ac.uk/archives/fall2008/entries/war/
(Accessed 1 October 2013)
Realism is most influential amongst political scientists, as well as
scholars and practitioners of international relations. While realism is a
complex and often sophisticated doctrine, its core propositions express
a strong suspicion about applying moral concepts, like justice, to the
conduct of international affairs. Realists believe that moral concepts
should be employed neither as descriptions of, nor as prescriptions for,
state behaviour on the international plane. Realists emphasize power
and security issues, the need for a state to maximize its expected self­
interest and, above all, their view of the international arena as a kind of
anarchy, in which the will to power enjoys primacy.
Referring specifically to war, realists believe that it is an inevitable part
of an anarchical world system; that it ought to be resorted to only if it
makes sense in terms of national self-interest; and that, once war has
begun, a state ought to do whatever it can to win. In other words, ‘all’s
fair in love and war’. During the grim circumstances of war, ‘anything
goes’. So if adhering to the rules of just war theory, or international law,
hinders a state during wartime, it should disregard them and stick
steadfastly to its fundamental interests in power, security and economic
growth. Prominent classical realists include Thucydides, Machiavelli and
Hobbes. Modern realists include Hans Morgenthau, George Kennan,
Reinhold Niebuhr and Henry Kissinger, as well as so-called neo-realists,
such as Kenneth Waltz.
It is important to distinguish between descriptive and prescriptive
realism. Descriptive realism is the claim that states, as a matter of fact,
either do not (for reasons of motivation) or cannot (for reasons of
competitive struggle) behave morally, and thus moral discourse
surrounding interstate conflict is empty, the product of a category
mistake. States are simply not animated in terms of morality and justice:
it’s all about power, security and national interest for them. States are
not like ‘big persons’: they are creations of an utterly different kind, and
we cannot expect them to live by the same rules and principles we
require of individual persons, especially those in peaceful, developed
societies. Morality is a luxury states can’t afford, for they inhabit a

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violent international arena, and they’ve got to be able to get in that

game and win, if they are to serve and protect their citizens in an
effective way over time. Morality is simply not on the radar screen for
states, given their defensive function and the brutal environment in
which they subsist.
Walzer offers arguments against this kind of realism, contending that
states are in fact responsive to moral concerns, even when they fail to
live up to them. States, because they are the creation of individual
persons, want to act morally and justly: it could not be otherwise.
Walzer goes so far as to say that any state which was motivated by
nothing more than the struggle to survive and win power could not over
time sustain the support from its own population, which demands a deeper
sense of community and justice. He also argues that all the pretence
regarding ‘the necessity’ of state conduct in terms of pursuing power is
exaggerated and rhetorical, ignoring the clear reality of foreign policy
choice enjoyed by states in the global arena. States are not frequently
forced into some kind of dramatic, do-or-die struggle: the choice to go
to war is a deliberate one, freely entered into and often hotly debated
and agonized over before the decision is made. And this is leaving
unspoken the argument regarding the defiant, Machiavellian amorality
behind certain kinds of realism, and the moral calibre of the actions it
might recommend on this basis. For example, if it’s all about power and
winning in the competitive struggle, does that make it alright to unleash
weapons of mass destruction? Or to launch a mass rape campaign?
Commit genocide and just get rid of those bastards? Just war theory
suggests not, and just war theorists like Walzer want to claim that the
rest of us agree.
Prescriptive realism, though, need not be rooted in any form of
descriptive realism. Prescriptive realism is the claim that a state ought
(prudential ‘ought’) to behave amorally in the international arena. A
state should, for prudence’s sake, adhere to an amoral policy of smart
self-regard in international affairs. A smart state will leave its morality at
home when considering what to do on the international stage. Why?
Because if it’s too moral, it will be exploited by other states more
ruthless. Nice guys finish last. Or, a moralized and moralizing state will
offend other communities, whose communities sport different values.
Better to stick to the sober calculus of national interests and leave ethics
out of it.
It’s important to note that a prescriptive realist might, in the end,
actually endorse rules for the regulation of warfare, much like those

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offered by just war theory. These rules include: ‘Wars should only be
fought in response to aggression’; and ‘During war, non-combatants
should not be directly targeted with lethal violence.’ Of course, the reason
why a prescriptive realist might endorse such rules would be very
different from the reasons offered by the just war theorist: the latter
would talk about abiding moral values whereas the former would refer
to useful rules which help establish expectations of behaviour, solve
coordination problems and to which prudent bargainers would consent.
Just war rules, the prescriptive realist might claim, do not have
independent moral purchase on the attention of states. These rules are
what Douglas Lackey calls ‘salient equilibria’, stable conventions limiting
war’s destructiveness which all prudent states can agree on, assuming
general compliance. There might even be some room for overlap
between this kind of realism and just war theory.

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Reading 2 Walzer on the moral

equality of soldiers
Source: Walzer, M. (1977) Just and Unjust Wars: A Moral Argument
with Historical Illustrations, New York, Basic Books, pp. 36–40
(this edition 2006). Footnotes omitted.
Soldiers cannot endure modern warfare for long without blaming
someone for their pain and suffering. While it may be an example of
what Marxists call ‘false consciousness’ that they do not blame the
ruling class of their own or of the enemy country, the fact is that their
condemnation focuses most immediately on the men with whom they
are engaged. The level of hatred is high in the trenches. That is why
enemy wounded are often left to die and prisoners are killed – like
murderers lynched by vigilantes – as if the soldiers on the other side
were personally responsible for the war. At the same time, however, we
know that they are not responsible. Hatred is interrupted or overridden
by a more reflective understanding, which one finds expressed again and
again in letters and war memoirs. It is the sense that the enemy soldier,
though his war may well be criminal, is nevertheless as blameless as
oneself. 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, members of the fellowship of
warriors; they are ‘poor sods, just like me’, trapped in a war they didn’t
make. I find in them my moral equals. That is not to say simply that I
acknowledge their humanity, for it is not the recognition of fellow men
that explains the rules of war; criminals are men too. It is precisely the
recognition of men who are not criminals.
They can try to kill me, and I can try to kill them. But it is wrong to
cut the throats of their wounded or to shoot them down when they are
trying to surrender. These judgments are clear enough, I think, and they
suggest that war is still, somehow, a rule-governed activity, a world of
permissions and prohibitions – a moral world, therefore, in the midst of
hell. Though there is no license for war-makers, there is a license for
soldiers, and they hold it without regard to which side they are on; it is
the first and most important of their war rights. They are entitled to
kill, not anyone, but men whom we know to be victims. We could hardly
understand such a title if we did not recognize that they are victims too.
Hence the moral reality of war can be summed up in this way: when

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soldiers fight freely, choosing one another as enemies and designing

their own battles, their war is not a crime; when they fight without
freedom, their war is not their crime. In both cases, military conduct is
governed by rules; but in the first the rules rest on mutuality and
consent, in the second on a shared servitude. The first case raises no
difficulties; the second is more problematic. We can best explore its
problems, I think, if we turn from the trenches and the front lines to
the general staff at the rear, and from the war against the Kaiser to the
war against Hitler – for at that level and in that struggle, the recognition
of ‘men who are not criminals’ is hard indeed.

The case of Hitler’s generals

[…]
Consider now the […] case of Erwin Rommel: […] one of Hitler’s
generals, and it is hard to imagine that he could have escaped the moral
infamy of the war he fought. Yet he was, so we are told by one
biographer after another, an honorable man. ‘While many of his
colleagues and peers in the German army surrendered their honor by
collusion with the iniquities of Nazism, Rommel was never defiled.’ He
concentrated, like the professional he was, on ‘the soldier’s task of
fighting’. And when he fought, he maintained the rules of war. He
fought a bad war well, not only militarily but also morally. ‘It was
Rommel 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 …’ He was one of
Hitler’s generals, but he did not shoot prisoners. Is such a man a
comrade? Can one treat him with courtesy, can one shake his hand?
These are the fine points of moral conduct; I do not know how they
might be resolved […] But I am sure, nevertheless, that Rommel
should be praised for burning the Commando Order, and everyone who
writes about these matters seems equally sure, and that implies
something very important about the nature of war.
It would be very odd to praise Rommel for not killing prisoners unless
we simultaneously refused to blame him for Hitler’s aggressive wars.
For otherwise he is simply a criminal, and all the fighting he does is
murder or attempted murder, whether he aims at soldiers in battle or at
prisoners or at civilians. The chief British prosecutor at Nuremberg put
this argument into the language of international law when he said, ‘The
killing of combatants is justifiable … only where the war itself is legal.

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But where the war is illegal … there is nothing to justify the killing and
these murders are not to be distinguished from those of any other
lawless robber bands.’ And then Rommel’s case would be exactly like
that of a man who invades someone else’s home and kills only some of
the inhabitants, sparing the children, say, or an aged grandmother: a
murderer, no doubt, though not one without a drop of human kindness.
But we don’t view Rommel that way: why not? The reason has to do
with the distinction of jus ad bellum and jus in bello. We draw a line
between the war itself, for which soldiers are not responsible, and the
conduct of the war, for which they are responsible, at least within their
own sphere of activity. Generals may well straddle the line, but that only
suggests that we know pretty well where it should be drawn. We draw it
by recognizing the nature of political obedience. Rommel was a servant,
not a ruler, of the German state; he did not choose the wars he fought
but, like Prince Andrey, served his ‘Tsar and country’. We still have
misgivings in his case, and will continue to have them, for he was more
than just unlucky in his ‘Tsar and country’. But by and large we don’t
blame a soldier, even a general, who fights for his own government. He
is not the member of a robber band, a willful wrongdoer, but a loyal
and obedient subject and citizen, acting sometimes at great personal risk
in a way he thinks is right. We allow him to say what an English soldier
says 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.’
Not that his obedience can never be criminal; for when he violates the
rules of war, superior orders are no defence. The atrocities that he
commits are his own; the war is not. It is conceived, both in
international law and in ordinary moral judgment, as the king’s business
– a matter of state policy, not of individual volition, except when the
individual is the king.
It might, however, be thought a matter of individual volition whether
particular men join the army and participate in the war. Catholic writers
have long argued that they ought not to volunteer, ought not to serve at
all, if they know the war to be unjust. But the knowledge required by
Catholic doctrine is hard to come by; and in case of doubt, argues the
best of the Schoolmen, Francisco de Vitoria, subjects must fight – the
guilt falling, as in Henry V, on their leaders. Vitoria’s argument suggests
how firmly political life is set, even in the pre-modern state, against the
very idea of volition in time of war. ‘A prince is not able,’ he writes,
‘and ought not always to render reasons for the war to his subjects, and
if the subjects cannot serve in the war except they are first satisfied of
its justice, the state would fall into grave peril …’ Today, of course,

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most princes work hard to satisfy their subjects of the justice of their
wars; they ‘render reasons’, though not always honest ones. It takes
courage to doubt these reasons, or to doubt them in public; and so long
as they are only doubted, most men will be persuaded (by arguments
something like Vitoria’s) to fight. Their routine habits of law­
abidingness, their fear, their patriotism, their moral investment in the
state, all favor that course. Or, alternatively, 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:

From my mother’s sleep I fell into the State.

And then how can we blame them for (what we perceive to be) the
wrongful character of their war?
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. But except in extreme cases, it never
completely disappears. And at those moments in the course of the
fighting when they must choose, like Rommel, to kill prisoners or let
them live, they are not mere victims or servants bound to obedience;
they are responsible for what they do. We shall have to qualify that
responsibility when we come to consider it in detail, for war is still hell,
and hell is a tyranny where soldiers are subject to all sorts of duress.
But the judgments we actually make of their conduct demonstrate,
I think, that within that tyranny we have carved out a constitutional
regime: even the pawns of war have rights and obligations.

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Reading 3 McMahan on the moral

equality of combatants
Source: McMahan, J. (2006) ‘On the moral equality of
combatants’, Journal of Political Philosophy, vol. 14, no. 4,
pp. 377–82 [Online]. DOI: 10.1111/j.1467-9760.2006.00265.x
(Accessed 17 October 2013). Copyright © John Wiley & Sons, Inc.

I The doctrine of the moral equality of combatants

There’s a well-known scene in Shakespeare’s Henry V in which the
King, disguised as an ordinary soldier, is conversing with some of his
soldiers on the eve of the battle of Agincourt. Hoping to find or inspire
support among them, he remarks: ‘Methinks I could not die anywhere
so contented as in the King’s company, his cause being just and his
quarrel honorable.’ One soldier replies: ‘That’s more than we know,’
whereupon a second says: ‘Ay, or more than we should seek after; for
we know enough if we know we are the King’s subjects: if his cause be
wrong, our obedience to the King wipes the crime of it out of us.’1
I don’t know whether Shakespeare recognized the now familiar legal
distinction between justification and excuse. But if he had meant for
this soldier to be claiming only an excuse, he probably would have had
him say that the King’s authority wipes the guilt from them. But instead
he says that it clears them of the crime: that is, even if the cause for
which they fight is wrong, they commit no crime, or do no wrong, in
fighting for it.
This has been the dominant view about participation in an unjust war
throughout history. And it’s central to the theory of the just war in its
currently orthodox form. According to contemporary just war theory,
the principles governing the conduct of war make no distinction
between soldiers whose war is just and those whose war is unjust.
These principles are held to be equally satisfiable by all those who fight.
According to the theory, combatants do wrong if they violate these
principles, though not if their war contravenes the principles that
determine whether a war is just. For these latter principles apply only to
those who have a role in deciding whether to resort to war, or to keep
a war going.

1
IV.i.128–35.

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 Reading 3 McMahan on the moral equality of combatants

Michael Walzer, the most distinguished proponent of the just war theory
in its contemporary form, refers to the idea that combatants on all sides
in a war have the same rights, immunities and liabilities as the ‘moral
equality of soldiers’. I will refer to this as the ‘moral equality of
combatants’, since the term ‘soldiers’ doesn’t obviously include air and
naval personnel. All combatants, he says, have an ‘equal right to kill’.
Although Walzer is asserting a moral claim, he might equally have been
citing international law, which holds that it’s not a crime merely to
participate in an unjust war. Combatants act illegally only if they violate
the laws that regulate the conduct of war.
A war can be unjust for various reasons. It might, for example, be
fought for a just cause but be unnecessary for the achievement of that
cause, or disproportionately destructive relative to the importance of the
cause. Usually, however, wars are unjust because they’re fought for a
cause that’s unjust. I’ll refer to combatants who fight for an unjust cause
as ‘unjust combatants’ and to combatants who fight in a just war as
‘just combatants.’ These categories are not exhaustive because they leave
out combatants who fight in unjust wars which have just causes.
My remarks will focus on the more common cases in which war is
unjust because the cause for which it’s fought is itself unjust. Though
many of my subsequent claims will apply to combatants who fight in
wars that are unjust for other reasons, I’m restricting the focus of my
argument because it’s in cases in which a war’s goals are unjust that the
doctrine of the moral equality of combatants is least plausible. If it can
be shown that the doctrine is indefensible in these cases, that will be
sufficient to refute it, since it’s supposed to be universal in scope and
application. No one, to my knowledge, claims that it’s impermissible to
fight in a war with an unjust cause yet permissible to fight in a war that
has a just cause but is unnecessary or disproportionate, or in a war that
has a good aim that doesn’t rise to the level of a just cause.2
…
Although the doctrine of the moral equality of combatants has been the
dominant view throughout history, it’s hard to see how it could be
correct as a matter of basic morality. In part that’s because it’s hard to
see how any means to the achievement of an unjust end could be
anything other than wrongful – unless, perhaps, it were simultaneously
an end in itself that was just, or a means to another end that was just,

2
For the distinction between a good cause and a just cause, see Jeff McMahan, ‘Just cause
for war’, Ethics and International Affairs, 19 (2005), 1–21.

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and achieving the just end would morally outweigh bringing about the
unjust end.
But an equally important reason why participation in an unjust war
seems wrong is that those against whom unjust combatants fight are
innocent in the relevant sense. This may seem a strange claim. For in the
context of war, ‘innocent’ is usually treated as synonymous with
‘civilian’. Yet ‘innocent’ has two distinct uses in discourse about war that
are commonly assumed to coincide. My claim invokes the other sense,
which is acknowledged by Walzer when he notes that ‘innocent [is] a term
of art’ that we apply to people when ‘they have done nothing, and are
doing nothing, that entails the loss of their rights.’3 The reason that the
two senses are generally thought to coincide is that civilians aren’t
engaged in the activity of war and thus are assumed to have done
nothing to lose their right not to be attacked.
But even if all civilians are innocent in this second sense, that doesn’t
mean that only civilians have this status. Suppose that a malicious person
attacks you unjustly. Would you lose your right not to be attacked by
him simply by trying to defend yourself ? No. People don’t lose moral
rights by justifiably defending themselves or other innocent people
against unjust attack; therefore, unless they lose rights for some reason
other than acquiring combatant status, just combatants are innocent in
the relevant sense. So, even when unjust combatants confine their
attacks to military targets, they kill innocent people. Most of us believe
that it’s normally wrong to kill innocent people even as a means of
achieving a goal that’s just. How, then, could it be permissible to kill
innocent people as a means of achieving goals that are unjust?
In effect, what I’m asserting is that unjust combatants can’t satisfy the
traditional requirement of discrimination in its generic formulation –
that is, the requirement to attack only legitimate targets. I’ve argued
elsewhere that they also can’t satisfy the other principal constraint on
the conduct of war: the requirement of proportionality.4 Acts of war by
unjust combatants can’t in general satisfy this requirement because any
good effects they might have can’t serve to justify, and therefore can’t
weigh against, the killing or maiming of innocent people.
These objections seem obvious enough. I believe that they conclusively
demonstrate the moral inequality of combatants at the level of basic
morality. Yet even after considering them, most people remain
3
Michael Walzer, Just and Unjust Wars (Harmondsworth: Penguin, 1977), p. 146.
4
Jeff McMahan, ‘The ethics of killing in war’, Ethics, 114 (2004), 693–733, especially

pp. 708–18.

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 Reading 3 McMahan on the moral equality of combatants

convinced that unjust combatants do not act wrongly merely by fighting

in an unjust war. So, rather than further developing the arguments
against the doctrine of the moral equality of combatants, I propose to
explore the reasons why people are reluctant to accept that unjust
combatants act wrongly in fighting. My concern here is with normative
rather than explanatory reasons, and in what follows I’ll examine the
most cogent arguments that I’ve been able to find or to devise in
support of the orthodox doctrine of the equality of combatants.5

II The traditional criterion of liability to attack

I have noted that ‘innocent’ has two distinct meanings in discourse
about war but that they are commonly assumed to coincide. The sense
in which ‘innocent’ is virtually synonymous with ‘civilian’ is given by
etymology. The Latin nocentes means ‘those who injure or are harmful’.
The innocent are those who are not nocentes – those who aren’t
threatening or harmful. Those who are not threatening will also be
those who retain their right not to be attacked if one loses this right by
posing a threat to others. This is precisely the traditional view.
According to Walzer, ‘our right not to be attacked … is lost by those
who bear arms ‘effectively’ because they pose a danger to other people.
It is retained by those who don’t bear arms at all.’6 This is the
foundation of the virtually unquestioned premise of contemporary just
war theory that the distinction between legitimate and illegitimate targets
coincides with that between combatants and noncombatants.
But, as I noted earlier, the idea that one loses the right not to be
attacked merely by posing a threat to others has no plausibility outside
the context of war. Many people think, however, that war is somehow
different. They think that even unjust combatants have, at a minimum,
the right to defend themselves on the battlefield. But if this is true, we
need to know exactly what it is about the circumstances of war that
causes people to lose their rights merely by justifiably defending
themselves and others against an unprovoked attack – something that
doesn’t happen outside the context of war. But to identify this special
feature of war, if such a feature exists, would be to offer an argument
that goes beyond the simple, traditional claim that combatants make
themselves liable to attack merely by posing a threat to others. What
might that argument be?
5
In The Ethics of Killing in War I will identify some confusions that I believe motivate

people’s commitment to the doctrine of the moral equality of combatants.

6
Just and Unjust Wars, p. 145. On p. 136 he claims that ‘simply by fighting … [combatants]
have lost their title to life and liberty.’

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III Consent
A. The boxing match model of war
Two such arguments are suggested in the following passage from
Walzer:

The moral reality of war can be summed up in this way: when

soldiers fight freely, choosing one another as enemies and
designing their own battles, their war is not a crime; when they
fight without freedom, their war is not their crime. In both cases,
military conduct is governed by rules; but in the first the rules rest
on mutuality and consent, in the second on a shared servitude.7

According to the first of these suggestions, war is analogous to a boxing

match or a duel. Just as it’s part of the profession of boxing to consent
to be hit by one’s opponents, so combatants understand that they and
their adversaries are all fulfilling their professional role and at least
implicitly they consent to be done to by their adversaries as they are
doing unto them.
There are, however, three objections to this view, each of which seems
decisive on its own. First, it’s just false to suppose that combatants
universally, or even generally, consent to be attacked by their
adversaries. This is particularly obvious in the case of people who’re
forced to become combatants by unjust aggression against their
homeland. It’s absurd to imagine such people consenting, even
implicitly, to be killed by invaders.
Second, suppose they did consent. This alone wouldn’t make it
permissible to kill them. Sometimes a person’s consent contributes to
making it permissible to kill him – for example, when a person wishes
to be killed because his life has ceased to be worth living or because he
has some other good reason to wish to die (for example, to make his
organs available to save his child). But it doesn’t seem that a person’s
merely consenting to be attacked can, in the absence of a good reason
for consenting, make it permissible for another to kill him. It is
generally wrong, for example, to kill a person in a duel even if he has
consented to participate.

7
Just and Unjust Wars, p. 37.

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 Reading 3 McMahan on the moral equality of combatants

Third, even if all combatants did consent and even if their consent
would mean that they wouldn’t be wronged by being killed, it wouldn’t
follow that unjust combatants do no wrong in fighting. For acts of war
by unjust combatants aren’t wrong only because they kill and injure just
combatants. Attacks by unjust combatants against just combatants are
merely instrumental to the ultimate aim of the war: the achievement of
the unjust cause, which would have other victims. So just combatants
aren’t the only people who are threatened or wronged by those who
fight for an unjust cause. Because of this, acts of war by unjust
combatants couldn’t be rendered permissible by the consent of the just
combatants against whom they fight.
Note that the same is true of the kind of war that would best fit
Walzer’s description: a war between rival mercenary armies for control
of some area. In the actual cases that are most like this, all the
combatants on both sides are arguably unjust combatants. Perhaps none
would be wronged by being killed. But in such cases, even a combatant
who attacks only members of the opposing army and doesn’t wrong
them in doing so is still acting wrongly because his action is
instrumental to the achievement of an unjust cause.

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Reading 4 Hurka on the moral equality

of soldiers
Source: Hurka, T. (2007) ‘Liability and just cause’, Ethics and
International Affairs, vol. 21, no. 2, pp. 210–13 [Online]. DOI:
10.1111/j.1747-7093.2007.00070.x (Accessed 17 October 2013).
Copyright © John Wiley & Sons, Inc.
I find [McMahan’s] critique of the standard view decisive, but McMahan
ignores a more persuasive justification of the moral equality of soldiers
that is most clearly available given volunteer militaries on both sides of
a war. It says that by voluntarily entering military service, soldiers on
both sides freely took on the status of soldiers and thereby freely
accepted that they may permissibly be killed in the course of war. More
specifically, they accepted that they may permissibly be killed by specific
people – enemy soldiers who have made a reciprocal surrender of rights
– in specific circumstances – those of formally declared hostilities
between their and another state. By volunteering, in other words, they
freely gave up their right not to be killed in certain circumstances and
so made their killing in those circumstances not unjust. And since they
both did so without regard to the justice of either’s cause, their resulting
status with respect to each other is the same. Their situation is like that
of boxers who, in agreeing to a bout, permit each other to do in the
ring what would be forbidden as assault outside it. And just as the
boxers’ interaction is governed by formalized rules, so is the soldiers’:
there are uniforms to distinguish the people who have surrendered and
gained rights from those who have not, and formal declarations of war
and cease-fires to indicate when the permissibility of killing begins and
ends. There is, to be sure, an important difference between the two
cases. Whereas a boxer agrees to each of his bouts individually, a soldier
makes a more global surrender of rights to all enemy soldiers in all
future wars. But in both cases there is a voluntary permitting of what
would otherwise be a serious violation of rights.
…
Though less prominent in the literature than the material-noninnocence
justification, this surrender-of-rights justification does occasionally
appear. Walzer’s influential discussion mostly grounds the moral equality
of soldiers in the fact that they threaten each other, but at one point he
says that an enemy soldier is a legitimate target because ‘he has allowed

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himself to be made into a dangerous man.’1 While ‘dangerous man’ here

points to material noninnocence, ‘allowed himself ’ suggests a voluntary
assumption of status like that central to the surrender view. Even more
suggestively, Paul Christopher says that treating others as ends means
treating them ‘according to the roles that they have freely chosen for
themselves,’ where that means that ‘soldiers may be killed because that
is treating them appropriately as soldiers.’2
Though it neatly supports the moral equality of soldiers, this surrender
justification is open to several objections. The first argues that the right
not to be killed cannot be given away, because it is inalienable. Imagine
that A offers B $100,000 per year for ten years in return for the
enforceable claim-right to kill B at the end of that time, and that
B accepts both the offer and the money. Many will say that despite this,
A is not morally permitted to kill B at the end of the ten years. Though
other less weighty rights can be surrendered in contracts, the most
important ones, including the right not to be killed, cannot. But if the
right not to be killed is in this way inalienable, it cannot be surrendered
by volunteering for military service.
The most direct reply to this objection insists that the right not to be
killed is alienable, since all rights can be given away. Robert Nozick, Joel
Feinberg, and others have taken this line,3 but there are less radical
replies that point to differences between the surrender involved in
military service and that involved in the contract between A and B.
First, what the contract tries to give A is an enforceable claim-right to
kill B, one whose exercise it would be wrong of B to try to block or
prevent. But volunteering for military service gives enemy soldiers only
a liberty right to kill; one’s own right to defensive force against them is
absolutely retained. So the surrender of rights in the military case is
considerably less far-reaching and therefore perhaps less problematic.
Second, once B has accepted A’s money, the rights resulting from the
contract are asymmetrical: A has the right to kill B but B has no similar
right against A. But the rights in the military case are equal on both
sides: soldiers on both sides are permitted to kill their enemy and liable
to be killed by them. Finally, the transfer of rights in the contract case is
irrevocable. Once B has accepted A’s money, he cannot say he has
1
Michael Walzer, Just and Unjust Wars, 2nd ed. (New York: Basic Books, 1992), p. 145.
2
Paul Christopher, The Ethics of War and Peace, 2nd ed. (Upper Saddle River, NJ: Prentice-
Hall, 1998), p. 126, n. 23.
3
Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 331; and Joel
Feinberg, ‘Voluntary Euthanasia and the Inalienable Right to Life’, Philosophy and Public
Affairs 7 (Winter 1978), pp. 122–23.

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changed his mind and now wants not to be killed; he cannot do this
even if he offers to return the money. But the assumption of military
status is always revocable: a soldier always has the option of either
deserting from the military or surrendering to the enemy. Of course
neither of these options is cost-free: if he deserts and is caught he will
be imprisoned by his own side, whereas if he surrenders he will be
imprisoned by the enemy. But being imprisoned is a lesser infringement
of rights than being killed, and I doubt many will say the right not to
be imprisoned is inalienable.
In this connection it is vital to recognize the role of time in alienation.
Those who believe the right to life is inalienable need not and often do
not deny that a person can permit another to kill him – for example, in
voluntary euthanasia. But that is because they distinguish between
waiving and alienating a right. When one waives one’s right not to be
killed, as in voluntary euthanasia, the waiver is simultaneous with the
killing it allows; one now permits a doctor to give one a lethal injection
at that moment. But the alienation of a right occurs across time. In the
contract between A and B, B’s accepting the money now is supposed to
permit A to kill B at some future time whether or not B then wants to
permit that killing. So unlike a waiver, which involves just a present
exercise of choice, alienating a right involves an attempt by present
choice to limit one’s permissible choices in the future. That is why those
who deny that a right is inalienable can find waiving it perfectly
acceptable.4
Because it is revocable by desertion or surrender, the assumption of
military status is closer in this key respect to waiving than to alienating
the right not to be killed. There remains an obvious difference, since a
soldier does not positively want to be killed, whereas a patient who
requests euthanasia does. But the possibility of revocation allows us to
see the permission to kill a soldier at a time as grounded in his choice
at that time to remain a soldier, which assimilates it to the less
contentious case of waiving rather than the more problematic one of
alienation.
These features of military surrender also assimilate it to the boxing case.
There too each boxer grants his opponent only a liberty-right to assault
him, retaining his own right to defend himself; the resulting distribution
of rights is equal; and each boxer can always revoke his surrender of

4
Feinberg, ‘Voluntary Euthanasia and the Inalienable Right to Life’, pp. 114–18; Feinberg
emphasizes this distinction before expressing his skepticism about whether any rights are
inalienable.

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 Reading 4 Hurka on the moral equality of soldiers

rights by conceding defeat. We can also construct a boxing analogue of

the contract case, where A offers B, say, $1,000 a year for ten years in
return for the claim-right to punch him into unconsciousness at the end
of that time. Our verdict about this contract may not be as clear as it is
about the one involving killing, but I suspect some will say the contract
is not binding, so if A does punch B he is morally guilty of assault. If
they do say that but continue to allow standard boxing matches, they
will be granting moral significance to the very features I have
highlighted in a soldier’s surrender of the right not to be killed.
I do not claim that these replies decisively answer the inalienability
objection, but together they make a substantial case in defence of the
surrender justification. …
…
[T]here is a final objection, raised by McMahan in some as-yet
unpublished lectures, that points to a serious limitation in the surrender
justification of moral equality.5
This objection concerns the harm unjust combatants cause
noncombatants, who have not surrendered their right not to be killed
and are also not a threat. In most contemporary wars soldiers on both
sides, even if they aim only at military targets, collaterally harm and
even kill some civilians. Their doing so is not forbidden by the
discrimination condition, but it is restricted by the proportionality
condition, which allows collateral harm to civilians only when it is not
out of proportion to the relevant good an act will do. And it is hard to
see how ‘relevant good’ can be understood except in terms of a war’s
just causes. Surely what counts as proportionate harm depends on the
seriousness of the stakes in war. A level of civilian harm that would
have been acceptable in World War II, fought against a genocidal
enemy, might not have been acceptable in the Falklands War. But if
unjust combatants have no just causes, then no acts in which they harm
civilians can be proportionate, and all such acts are wrong. This creates
a fundamental moral inequality between soldiers. Soldiers on a just side
can fight entirely permissibly, if they target only enemy soldiers and
cause only proportionate collateral harm. But except in a war fought
entirely apart from civilians, such as perhaps a purely naval war, unjust
combatants cannot fight permissibly. Whenever they harm civilians, even
if only collaterally, their actions are disproportionate and therefore
morally wrong. It does not follow that they should be prosecuted after
5
Jeff McMahan, ‘The Ethics of Killing in War: The Uehiro Lectures 2006,’ Lecture 1,

‘Unjust Warfare’, p. 6 (forthcoming).

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the war; for the pragmatic reasons McMahan cites, it may be best to
excuse them. But the moral reality is that in most wars unjust
combatants cannot fight justly, whereas just combatants can.
…
McMahan claims that to be liable for targeting, a soldier must himself
be responsible for some wrong, and since there is no wrong on the just
side, just combatants are not permissible targets. In reply I have argued
that if soldiers on both sides have surrendered their right not to be
killed to all enemy soldiers in all future wars, then with respect to each
other they are moral equals, each permitted to kill their enemy and
liable to be killed by them. The two sides are not completely morally
equal, since in most wars just combatants can fight proportionally while
unjust ones cannot. But insofar as they target each other, both act
permissibly and neither’s acts are wrong. In that important respect they
are moral equals.

142
 Reading 5 Walzer on killing naked soldiers

Reading 5 Walzer on killing naked

soldiers
Source: Walzer, M. (1977) Just and Unjust Wars: A Moral Argument
with Historical Illustrations, New York, Basic Books, pp. 138–43
(this edition 2006). Footnotes omitted.

Noncombatant immunity and military necessity

The status of individuals
The first principle of the war convention is that, once war has begun,
soldiers are subject to attack at any time (unless they are wounded or
captured). And the first criticism of the convention is that this principle
is unfair; it is an example of class legislation. It does not take into
account that few soldiers are wholeheartedly committed to the business
of fighting. Most of them do not identify themselves as warriors; at
least, that is not their only or their chief identity; nor is fighting their
chosen occupation. Nor, again, do they spend most of their time
fighting; they neglect war whenever they can. I want to turn now to a
recurrent incident in military history in which soldiers, simply by not
fighting, appear to regain their right to life. In fact, they do not regain
it, but the appearance will help us understand the grounds on which the
right is held, and the facts of the case will clarify the meaning of its
forfeiture.
Naked soldiers
The same tale appears again and again in war memoirs and in letters
from the front. It has this general form: a soldier on patrol or on sniper
duty catches an enemy soldier unaware, holds him in his gunsight, easy
to kill, and then must decide whether to shoot him or let the
opportunity pass. There is at such moments a great reluctance to shoot –
not always for moral reasons, but for reasons that are relevant
nonetheless to the moral argument I want to make. No doubt, a deep
psychological uneasiness about killing plays a part in these cases. This
uneasiness, in fact, has been offered as a general explanation of the
reluctance of soldiers to fight at all. […]
[…]
The most reflective of the accounts I have found is by an Italian soldier
who fought the Austrians in World War I: Emilio Lussu, later a socialist

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leader and anti-fascist exile. Lussu, then a lieutenant, together with a

corporal, had moved during the night into a position overlooking the
Austrian trenches. He watched the Austrians having morning coffee and
felt a kind of amazement, as if he had not expected to find anything
human in the enemy lines.

Those strongly defended trenches, which we had attacked so many

times without success had ended by seeming to us inanimate, like
desolate buildings uninhabited by men, the refuge only of
mysterious and terrible beings of whom we knew nothing. Now
they were showing themselves to us as they really were, men and
soldiers like us, in uniform like us, moving about, talking, and
drinking coffee, just as our own comrades behind us were doing at
that moment.

A young officer appears and Lussu takes aim at him; then the Austrian
lights a cigarette and Lussu pauses. ‘This cigarette formed an invisible
link between us. No sooner did I see its smoke than I wanted a
cigarette myself …’ Behind perfect cover, he has time to think about his
decision. He felt the war justified, ‘a hard necessity’. He recognized that
he had obligations to the men under his command. ‘I knew it was my
duty to fire.’ And yet he did not. He hesitated, he writes, because the
Austrian officer was so entirely oblivious to the danger that threatened
him.

I reasoned like this: To lead a hundred, even a thousand, men

against another hundred, or thousand, was one thing; but to
detach one man from the rest and say to him, as it were: ‘Don’t
move, I’m going to shoot you. I’m going to kill you’ – that was
different … To fight is one thing, but to kill a man is another.
And to kill him like that is to murder him.

Lussu […] turned to his corporal but (perhaps because he was a

socialist) with a question, not an order. ‘Look here – I’m not going to
fire on a man alone, like that. Will you?’ … ‘No, I won’t either.’ Here
the line has been clearly drawn between the member of an army who
makes war together with his comrades and the individual who stands
alone. Lussu objected to stalking a human prey. What else, however,
does a sniper do?

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 Reading 5 Walzer on killing naked soldiers

It is not against the rules of war as we currently understand them to kill

soldiers who look funny, who are taking a bath, holding up their pants,
reveling in the sun, smoking a cigarette. The refusal of [some soldiers to
do so], nevertheless, seems to go to the heart of the war convention.
For what does it mean to say that someone has a right to life? To say
that is to recognize a fellow creature, who is not threatening me, whose
activities have the savor of peace and camaraderie, whose person is as
valuable as my own. An enemy has to be described differently, and
though the stereotypes through which he is seen are often grotesque,
they have a certain truth. He alienates himself from me when he tries to
kill me, and from our common humanity. But the alienation is
temporary, the humanity imminent. It is restored, as it were, by the
prosaic acts that break down the stereotypes […]. Because he is funny,
naked, and so on, my enemy is changed, as Lussu says, into a man.
‘A man!’
The case might be different if we imagine this man to be a
wholehearted soldier. In his bath, smoking his morning cigarette, he is
thinking only of the coming battle and of how many of his enemies he
will kill. He is engaged in war-making just as I am engaged in writing
this book; he thinks about it all the time or at the oddest moments. But
this is an unlikely picture of an ordinary soldier. War is not in fact his
enterprise, but rather surviving this battle, avoiding the next. Mostly, he
hides, is frightened, doesn’t fire, prays for a minor wound, a voyage
home, a long rest. And when we see him at rest, we assume that he is
thinking of home and peace, as we would be. If that is so, how can it
be justified to kill him? Yet it is justified, as most of the soldiers [who
refuse to kill] understand. Their refusals seem, even to them, to fly in
the face of military duty. Rooted in a moral recognition, they are
nevertheless more passionate than principled decisions. They are acts of
kindness, and insofar as they entail any danger at all or lower minutely
the odds for victory later, they may be likened to supererogatory acts.
Not that they involve doing more than is morally required; they involve
doing less than is permitted.
The standards of permissibility rest on the rights of individuals, but they
are not precisely defined by those rights. For definition is a complex
process, historical as well as theoretical in character, and conditioned in
a significant way by the pressure of military necessity.

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Reading 6 May on the problem of the

naked soldier
Source: May, L. (2005) ‘Killing naked soldiers: distinguishing
between combatants and noncombatants’, Ethics and International
Affairs, vol. 19, no. 3, pp. 44–6 [Online]. DOI: 10.1111/j.1747­
7093.2005.tb00553.x (Accessed 17 October 2013). Copyright © John
Wiley & Sons, Inc.

The problem of the naked soldier

The principle of discrimination is … worth preserving, on conceptual
and moral grounds. In my view, one of its main benefits is to force
soldiers to think before they shoot. And this will nearly always mean
that soldiers will shoot less, which is nearly always a good thing in itself.
In this section, I turn to the example of the naked soldier and offer a
criticism of what Michael Walzer says about such cases, while
nonetheless arguing that the distinction that is at the heart of the
principle of discrimination is indeed worth preserving. …
For Walzer there is a ‘fundamental recognition’ that it is permissible to
kill the naked soldier.1
Walzer expresses much ambivalence about this position, but in the end
he argues that war cannot be fought without discriminating between
fighters and non fighters, where the former ‘are subject to attack at any
time.’2 The reason for this is that a soldier has allowed himself ‘to be
made into a dangerous man.’3 A significant part of Walzer’s argument
justifying the permissibility of killing the naked soldier is directly
relevant to our discussion of collective identity and discrimination in the
previous section of this essay. For Walzer admits that soldiers ‘do not
always fight; nor is war their personal enterprise. But it is the enterprise
of their class, and this fact radically distinguishes the individual soldier
from the civilian he leaves behind.’4
It is tempting to say that Walzer is relying on a notion of collective
responsibility of the worst sort. And indeed this is partly right. Walzer is
arguing that the naked soldier is still a soldier, and as such he is subject
1
Michael Walzer, Just and Unjust Wars (New York: Basic Books, 2000 [1977]), p. 140.
2
Ibid., p. 138.
3
Ibid, p. 145.
4
Ibid., p. 144, emphasis added. By ‘class’ Walzer does not mean socioeconomic status but
merely ‘group’.

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 Reading 6 May on the problem of the naked soldier

to attack at any time, unlike civilians, who are supposed to be only

rarely subject to attack. Even though the soldier, as he sits naked in the
bath, seems to be less dangerous than a normal, dressed, adult male
civilian, the naked soldier will soon resume his role as a ‘dangerous
man’, and as part of a group of dangerous men he can be attacked at
any time. It is because of his ‘class’ that he can be shot; and because of
her class a civilian cannot be shot. But the classes are not clearly the
only relevant moral basis for distinguishing one individual from another,
especially if we are in effect talking about a kind of punishment or
penalty for the one but not for the other.
Walzer admits that there are other morally relevant factors in the case
of the naked soldier. Indeed, he says that a soldier ‘alienates himself
from me when he tries to kill me, and from our common humanity. But
the alienation is temporary, the humanity imminent. It is restored, as it
were, by the prosaic acts that break down stereotypes.’ In the case of
the naked soldier, ‘My enemy is changed into a man.’5 As a person I
feel that he should not be killed; but I also recognize that because of
his being still a member of a dangerous class, it is ‘less than is
permitted’ to spare his life.6 Hence, Walzer comes to the conclusion
that the group-based moral considerations override what he calls merely
‘passionate’ feelings.
The group-based approach to determining who can legitimately be killed
runs into problems when one asks why a particular member of the
group deserves to be killed. Walzer says that all of the members of the
group have lost their immunity because they have allowed themselves to
be made into dangerous men. If by this he means that each person in
the class is dangerous by virtue of having taken up arms and joined a
military unit, it is hard to see why a member of the group cannot take
himself out of the group, even temporarily, and thereby regain his
immunity not to be shot. We can see this most graphically when a
soldier drops his gun and raises his hands. Surely Walzer wouldn’t
maintain that that soldier still has no immunity from being shot. So why
is the naked soldier, who also has clearly dropped his gun and indicates
by his behaviour that he has no desire to shoot at us, not similar to the
surrendering soldier?
Of course, it is true that the naked soldier, unlike the surrendering
soldier, has indicated that he will still fight, and in the near future too,
whereas the surrendering soldier indicates that he will, for the
5
Ibid., p. 142.
6
Ibid., p. 143.

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foreseeable future, stop fighting. In this sense the naked soldier is more
dangerous than is the surrendering soldier. But at the moment, the
naked soldier is not a threat, either to other enemy soldiers or to the
state against which he has been, and will later continue to be, fighting.
It is thus difficult, although not impossible, to see the naked soldier as a
threat who is liable to be punished.
Perhaps Walzer thinks that by not surrendering, the naked soldier
indicates that he is still a member of the group and hence without
immunity from being killed. But why are all of the members of the
group to be treated the same? Why is the only way to regain one’s
immunity completely to remove oneself from the group? And what do
we do with the fact that even those who surrender are legitimately seen
as required to try to escape so they can rejoin their military units? If
those who surrender are not permanently excluded from the class of
dangerous men, it makes more sense to say that they have not regained
their immunity, at least not fully. But then it appears that the immunity
from being killed is something that might vary over time and
circumstance, disrupting the bright-line character of the principle of
discrimination. If the principle has a variable status, then this would
explain why it might be that the naked soldier is immune from attack
but loses his immunity when he gets dressed and steps back into
combat.
We might contrast the naked soldier with the soldier who does not
otherwise appear to be threatening to us, but who may be scouting out
our position so that he can later help target us for air bombardment.
The latter may indeed be dangerous, and too dangerous to our own
safety to grant him the mercy that is otherwise due to those who appear
to be merely human rather than members of a class of dangerous men.
Walzer treats this case in the same way he treats the case of the naked
soldier taking a bath who is seen in a telescopic lens at some distance,
and who presumably does not see his enemy. In both cases, Walzer says
that the soldiers can, indeed should, be killed. But unless Walzer is
willing to take a thoroughgoing collectivist approach, and he seems
unwilling to do so, he cannot argue that all soldiers can be targeted for
attack. Thus, we must search for a way to reconceptualize the principle
of discrimination.

148
 Reading 7 Mavrodes on principles and conventions

Reading 7 Mavrodes on principles and

conventions
Source: Mavrodes, G.I. (1975) ‘Conventions and the morality of
war’, Philosophy and Public Affairs, vol. 4, no. 2, pp. 124–30.
Footnotes omitted.
Imagine a statesman reflecting on the costliness of war, its cost in
human life and human suffering. He observes that these costs are
normally very high, sometimes staggering. Furthermore, he accepts the
principle of proportionality. A consequence of this is that he sometimes
envisions a just war for a just cause, but nevertheless decides not to
prosecute that war even though he believes it could be won. For the
cost of winning would be so high as to outweigh the good which would
be attained. So he must sometimes let oppression flourish and injustice
hold sway. And even in those wars which can be prosecuted the costs
eat very seriously into the benefits.
Then he has an idea. Suppose – just suppose – that one could replace
warfare with a less costly substitute. Suppose, for example, that one
could introduce a convention – and actually get it accepted and
followed by the nations – a convention which replaced warfare with
single combat. Under this convention, when two nations arrived at an
impasse which would otherwise have resulted in war they would instead
choose, each of them, a single champion (doubtless a volunteer). These
two men would then meet in mortal combat, and whoever won, killing
his opponent or driving him from the field, would win for his nation.
To that nation would then be ceded whatever territory, influence, or
other prize would have been sought in the war, and the nation whose
champion was defeated would lose correspondingly.
Suppose, too, that the statesman believes that if such a convention were
to come into force his own nation could expect to win and lose such
combats in about the same proportion as it could now expect to win
and lose ordinary wars. The same types of questions would be settled
by such combats as would otherwise be settled by war (though perhaps
more questions would be submitted to combat than would be submitted
to war), and approximately the same resolutions would be arrived at.
The costs, however – human death and suffering – would be reduced
by several orders of magnitude. Would that not be an attractive
prospect? I think it would.

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While the prospect may seem attractive it may also strike us as

hopelessly utopian, hardly to be given a serious thought. There seems to
be some evidence, however, that exactly this substitution was actually
attempted in ancient times. Ancient literature contains at least two
references to such attempts. One is in the Bible, I Samuel 17, the
combat between David and Goliath. The other is in the Iliad, book 3,
where it is proposed to settle the siege of Troy in the very beginning by
single combat between Menelaus and Paris. It may be significant that
neither of these attempts appears to have been successful. The single
combats were followed by bloodier and more general fighting. Perhaps
this substitute for warfare is too cheap; it cannot be made practical, and
nations just will not consent in the end to abide by this convention. But
consider, on the one hand, warfare which is limited only by the moral
requirements that the ends sought should be just and that the means
used should be proportionate, and, on the other hand, the convention
of single combat as a substitute for warfare. Between these extremes
there lie a vast number of other possible conventions which might be
canvassed in the search for a less costly substitute for war. I suggest
that the long struggle, in the western world at least, to limit military
operations to ‘counter-forces’ strategies, thus sparing civilian
populations, is just such an attempt.
If I am right about this, then the moral aspects of the matter must be
approached in a way rather different from that of the immunity
theorists. Some, but not all, of their conclusions can be accepted, and
somewhat different grounds must be given for them. These thinkers
have construed the immunity of noncombatants as though it were a
moral fact which was independent of any actual or envisioned
convention or practice. And they have consequently sought to support
this immunity by argument which makes no reference to convention.
I have already argued that their attempts were failures. What I suggest
now is that all such attempts must be failures, for they mistake the sort
of moral requirement which is under consideration. Let me try to make
this clearer.
I find it plausible to suppose that I have a moral obligation to refrain
from wantonly murdering my neighbors. And it also seems plausible to
discuss this, perhaps in utilitarian terms, or in terms of the will of God,
or of natural law, or in terms of a rock-bottom deontological
requirement, but in any case without essential reference to the laws and
customs of our nation. We might, indeed, easily imagine our laws and
customs to be other than they are with respect to murder. But we

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 Reading 7 Mavrodes on principles and conventions

would then judge the moral adequacy and value of such alternative laws
and customs by reference to the moral obligation I have mentioned and
not vice versa. On the other hand, I may also have a moral obligation
to pay a property tax or to drive on the right side of the street. It does
not seem plausible to suppose, however, that one can discuss these
duties without immediately referring to our laws and customs. And it
seems likely that different laws would have generated different moral
duties, e.g. driving on the left. These latter are examples of ‘convention­
dependent’ moral obligations. More formally, I will say that a given
moral obligation is convention-dependent if and only if (1) given that a
certain convention, law, custom, etc., is actually in force one really does
have an obligation to act in conformity with that convention, and (2)
there is an alternative law, custom, etc. (or lack thereof) such that if that
had been in force one would not have had the former obligation.
At this point, before developing the way in which it may apply to
warfare, let me forestall some possible misunderstandings by a series of
brief comments on this notion. I am not claiming, nor do I believe, that
all laws, customs, etc., generate corresponding moral obligations. But
some do. I am not denying that one may seek, and perhaps find, some
more general moral law, perhaps independent of convention, which
explains why this convention generates the more specific obligation.
I claim only that one cannot account for the specific obligation apart
from the convention. …
Now, the core of my suggestion with respect to the immunity of
noncombatants is this. The immunity of noncombatants is best thought
of as a convention-dependent obligation related to a convention which
substitutes for warfare a certain form of limited combat. How does this
bear on some of the questions which we have been discussing?
To begin with, we might observe that the convention itself is
presumably to be justified by its expectable results. (Perhaps we can
refer to some moral rule to the effect that we should minimize social
costs such as death and injury.) It seems plausible to suppose that the
counter-forces convention, if followed, will reduce the pain and death
involved in combat – will reduce it, that is, compared to unlimited
warfare. There are surely other possible conventions which, if followed,
would reduce those costs still more, e.g. the substitution of single
combat. Single combat, however, is probably not a live contender
because there is almost no chance that such a convention would actually
be followed. It is possible, however, that there is some practical
convention which is preferable to the present counter-forces convention.

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If so, the fact that it is preferable is a strong reason in favor of

supposing that there is a moral obligation to promote its adoption.
It does not follow, however, that we now have a duty to act in
conformity with this other possible convention. For the results of acting
in conformity with a preferable convention which is not widely
observed may be much worse than the results of acting in conformity
with a less desirable convention which is widely observed. We might,
for example, discover that a ‘left-hand’ pattern of traffic flow would be
preferable to the present system of ‘right-hand’ rules, in that it would
result in fewer accidents, etc. … But it would be a disaster, and, I
suspect, positively immoral, for a few of us to begin driving on the left
before the convention was changed. In cases of convention-dependent
obligations the question of what convention is actually in force is one of
considerable moral import. That one is reminded to take this question
seriously is one of the important differences between this approach and
that of the immunity theorists.
Perhaps the counter-forces convention is not really operative now in a
substantial way. I do not know. Doubtless, it suffered a severe blow in
World War II, not least from British and American bombing strategies.
Traffic rules are embedded in a broad, massive, comparatively stable
social structure which makes their status comparatively resistant to
erosion by infraction. Not so, however, for a convention of warfare. It
has little status except in its actual observance, and depends greatly on
the mutual trust of the belligerents; hence it is especially vulnerable to
abrogation by a few contrary acts. Here arises a related difference with
the immunity theorists. Taking the obligation to be convention­
independent they reject argument based on the fact that ‘the enemy did
it first’, etc. If the obligation were independent they would be correct in
this. But for convention-dependent obligations, what one’s opponent
does, what ‘everyone is doing’, etc., are facts of great moral importance.
Such facts help to determine within what convention, if any, one is
operating, and thus they help one to discover what his moral duties are.
If we were to decide that the counter-forces convention was dead at
present, or, indeed, that no convention at all with respect to warfare
was operative now, it would not follow that warfare was immoral. Nor,
on the other hand, would it follow that warfare was beyond all moral
rules, an area in which ‘anything goes’. Instead, we would simply go
back to warfare per se, limited only by independent moral requirements,
such as those of justice and proportionality. That would, on the whole,
probably be a more costly way of handling such problems. But if we

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live in a time when the preferable substitutes are not available, then we
must either forgo the goods or bear the higher costs. …
More generally, and ignoring for the moment a final consideration
which will be discussed below, there is no obligation and no benefit
associated with the unilateral observance of a convention. If one’s cause
is unjust then one ought not to kill noncombatants. But that is because
of the independent moral prohibition against prosecuting such a war at
all, and has nothing to do with any special immunity of noncombatants.
If one’s cause is just, but the slaying of noncombatants will not advance
it to any marked degree, then one ought not to slay them. But this is
just the requirement of proportionality, and applies equally and in the
same way to combatants. If one’s cause is just and the slaying of
noncombatants would advance it if, in other words, one is not
prevented by considerations of justice and proportionality – this is the
crucial case. If one refrains unilaterally in this situation then he seems to
choose the greater of two evils (or the lesser of two goods). By
hypothesis, the good achieved, i.e. the lives spared, is not as weighty as
the evil which he allows in damage to the prospects for justice or in the
even more costly alternative measures, e.g. the slaying of a larger
number of combatants, which he must undertake. Now, if the relevant
convention were operative, then his refraining from counter-population
strategies here would be related to his enemy’s similar restraint, and
indeed it would be related to the strategies which would be used in
future wars. These larger considerations might well tip the balance in
the other direction. But by hypothesis we are considering the case in
which there is no such convention, and so these larger considerations
do not arise. One acts unilaterally. In such a situation it certainly
appears that one would have chosen the worse of the two alternatives.
It is hard to suppose that one is morally obligated to do so.
I said above that we were ignoring for the moment one relevant
consideration. It should not be ignored forever. I have already called
attention to the fact that conventions of warfare are not, like traffic
rules, embedded in a more massive social structure. This makes them
especially precarious, as we have noted. But it also bears on the way in
which they may be adopted. One such way, perhaps a rather important
way, is for one party to the hostilities to signal his willingness to abide
by such a convention by undertaking some unilateral restraint on his
own part. If the opponent does not reciprocate, then the offer has
failed and it goes no further. If the opponent does reciprocate, however,
then the area of restraint may be broadened, and a kind of mutual

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respect and confidence may grow up between the belligerents. Each

comes to rely on the other to keep the (perhaps unspoken) agreement,
and therefore each is willing to forgo the immediate advantage which
might accrue to him from breaking it. If this happens, then a new
convention has begun its precarious life. This may be an event well
worth seeking.
Not only may it be worth seeking, it may be worth paying something
for it. For a significant increase in the likelihood that a worthwhile
convention will be adopted it may be worth accepting an increased risk
or a higher immediate cost in lives and suffering. So there may be some
justification in unilateral restraint after all, even in the absence of a
convention. But this justification is prospective and finite. It envisions
the possibility that such a convention may arise in the future as a result
of this restraint. Consequently, the justification should be proportioned
to some judgment as to the likelihood of that event, and it should be
reevaluated as future events unfold.

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 Reading 8 Walzer on supreme emergency

Reading 8 Walzer on supreme

emergency
Source: Walzer, M. (1977) Just and Unjust Wars: A Moral Argument
with Historical Illustrations, New York, Basic Books, pp. 251–43
(this edition 2006).
‘Emergency’ and ‘crisis’ are cant words, used to prepare our minds for
acts of brutality. And yet there are such things as critical moments in
the lives of men and women and in the history of states. Certainly, war
is such a time: every war is an emergency, every battle a possible
turning point. Fear and hysteria are always latent in combat, often real,
and they press us toward fearful measures and criminal behavior. The
war convention is a bar to such measures, not always effective, but
there nevertheless. In principle at least, as we have seen, it resists the
ordinary crises of military life. Churchill’s description of Britain’s
predicament in 1939 as a ‘supreme emergency’ was a piece of rhetorical
heightening designed to overcome that resistance. But the phrase also
contains an argument: that there is a fear beyond the ordinary
fearfulness (and the frantic opportunism) of war, and a danger to which
that fear corresponds, and that this fear and danger may well require
exactly those measures that the war convention bars. Now, a great deal
is at stake here, both for the men and women driven to adopt such
measures and for their victims, so we must attend carefully to the
implicit argument of ‘supreme emergency’.
Though its use is often ideological, the meaning of the phrase is a
matter of common sense. It is defined by two criteria, which
correspond to the two levels on which the concept of necessity works:
the first has to do with the imminence of the danger and the second
with its nature. The two criteria must both be applied. Neither one by
itself is sufficient as an account of extremity or as a defense of the
extraordinary measures extremity is thought to require. Close but not
serious, serious but not close – neither one makes for a supreme
emergency. […]
[…]
War is not always a struggle over ultimate values, where the victory of
one side would be a human disaster for the other. It is necessary to be
skeptical about such matters, to cultivate a wary disbelief of wartime
rhetoric, and then to search for some touchstone against which

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arguments about extremity might be judged. We need to make a map of

human crises and to mark off the regions of desperation and disaster.
These and only these constitute the realm of necessity, truly understood.
Once again, I am going to use the experience of World War II in
Europe to suggest at least the rough contours of the map. For Nazism
lies at the outer limits of exigency, at a point where we are likely to find
ourselves united in fear and abhorrence.
That is what I am going to assume, at any rate, on behalf of all those
people who believed at the time and still believe a third of a century
later that Nazism was an ultimate threat to everything decent in our
lives, an ideology and a practice of domination so murderous, so
degrading even to those who might survive, that the consequences of its
final victory were literally beyond calculation, immeasurably awful. We
see it – and I don’t use the phrase lightly – as evil objectified in the
world, and in a form so potent and apparent that there could never
have been anything to do but fight against it. I obviously cannot offer
an account of Nazism in these pages. But such an account is hardly
necessary. It is enough to point to the historical experience of Nazi rule.
Here was a threat to human values so radical that its imminence would
surely constitute a supreme emergency; and this example can help us
understand why lesser threats might not do so.
In order to get the map right, however, we must imagine a Nazi-like
danger somewhat different from the one the Nazis actually posed.
When Churchill said that a German victory in World War II ‘would be
fatal, not only to ourselves, but to the independent life of every small
country in Europe’, he was speaking the exact truth. The danger was a
general one. But suppose it had existed for Britain alone. Can a
supreme emergency be constituted by a particular threat – by a threat of
enslavement or extermination directed against a single nation? Can
soldiers and statesmen override the rights of innocent people for the
sake of their own political community? I am inclined to answer this
question affirmatively, though not without hesitation and worry. What
choice do they have? […] That is not to say that their decision is
inevitable (I have no way of knowing that), but the sense of obligation
and of moral urgency they are likely to feel at such a time is so
overwhelming that a different outcome is hard to imagine.
Still, the question is difficult, as its domestic analogue suggests. […][I]t
is not usually said of individuals in domestic society that they necessarily
will or that they morally can strike out at innocent people, even in the
supreme emergency of self-defense. They can only attack their attackers.

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 Reading 8 Walzer on supreme emergency

But communities, in emergencies, seem to have different and larger

prerogatives. I am not sure that I can account for the difference,
without ascribing to communal life a kind of transcendence that I don’t
believe it to have. Perhaps it is only a matter of arithmetic: individuals
cannot kill other individuals to save themselves, but to save a nation we
can violate the rights of a determinate but smaller number of people.
But then large nations and small ones would have different entitlements
in such cases, and I doubt very much that that is true. We might better
say that it is possible to live in a world where individuals are sometimes
murdered, but a world where entire peoples are enslaved or massacred
is literally unbearable. For the survival and freedom of political
communities – whose members share a way of life, developed by their
ancestors, to be passed on to their children – are the highest values of
international society. […]
I want to stress again, however, that the mere recognition of such a
threat is not itself coercive; it neither compels nor permits attacks on
the innocent, so long as other means of fighting and winning are
available. Danger makes only half the argument; imminence makes the
other half. Now let us consider a time when the two halves came
together: the terrible two years that followed the defeat of France, from
the summer of 1940 to the summer of 1942, when Hitler’s armies were
everywhere triumphant.
[…]

The decision to bomb German cities

There have been few decisions more important than this one in the
history of warfare. As a direct result of the adoption of a policy of
terror bombing by the leaders of Britain, some 300,000 Germans, most
of them civilians, were killed and another 780,000 seriously injured. No
doubt, these figures are low when compared to the results of Nazi
genocide; but they were, after all, the work of men and women at war
with Nazism, who hated everything it stood for and who were not
supposed to imitate its effects, even at lagging rates. […] How could the
initial choice of this ultimate weapon ever have been defended?
The history is a complex one, and it has already been the subject of
several monographic analyses. I can review it only briefly, attending
especially to the arguments put forward at the time by Churchill and
other British leaders, and always remembering what sort of a time it
was. The decision to bomb cities was made late in 1940. A directive

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issued in June of that year had ‘specifically laid down that targets had to
be identified and aimed at. Indiscriminate bombing was forbidden.’ In
November, after the German raid on Coventry, ‘Bomber Command was
instructed simply to aim at the center of a city.’ What had once been
called indiscriminate bombing (and commonly condemned) was now
required, and by early 1942, aiming at military or industrial targets was
barred: ‘the aiming points are to be the built-up areas, not, for instance,
the dockyards or aircraft factories.’ The purpose of the raids was
explicitly declared to be the destruction of civilian morale. Following the
famous minute of Lord Cherwell in 1942, the means to this
demoralization were specified: working-class residential areas were the
prime targets. Cherwell thought it possible to render a third of the
German population homeless by 1943.
[…]
Today many experts believe that the war might have ended sooner had
there been a greater concentration of air power against targets such as
the German oil refineries. But the decision to bomb cities was made at
a time when victory was not in sight and the specter of defeat ever
present. And it was made when no other decision seemed possible if
there was to be any sort of military offensive against Nazi Germany.
Bomber Command was the only offensive weapon available to the
British in those frightening years, and I expect there is some truth to
the notion that it was used simply because it was there. […] ‘The
bombers alone,’ Churchill had said as early as September 1940, ‘provide
the means of victory.’
The bombers alone – that poses the issue very starkly, and perhaps
wrongly, given the disputes over strategy to which I have already
referred. Churchill’s statement suggested a certainty to which neither he
nor anyone else had any right. But the issue can be put so as to
accommodate a degree of skepticism and to permit even the most
sophisticated among us to indulge in a common and a morally
important fantasy: suppose that I sat in the seat of power and had to
decide whether to use Bomber Command (in the only way that it could
be used systematically and effectively) against cities. Suppose further
that unless the bombers were used in this way, the probability that
Germany would eventually be defeated would be radically reduced. It
makes no sense at this point to quantify the probabilities; I have no
clear notion what they actually were or even how they might be
calculated given our present knowledge; nor am I sure how different

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figures, unless they were very different, would affect the moral
argument. But it does seem to me that the more certain a German
victory appeared to be in the absence of a bomber offensive, the more
justifiable was the decision to launch the offensive. It is not just that
such a victory was frightening, but also that it seemed in those years
very close; it is not just that it was close, but also that it was so
frightening. Here was a supreme emergency, where one might well be
required to override the rights of innocent people and shatter the war
convention.
Given the view of Nazism that I am assuming, the issue takes this
form: should I wager this determinate crime (the killing of innocent
people) against that immeasurable evil (a Nazi triumph)? Obviously, if
there is some other way of avoiding the evil or even a reasonable
chance of another way, I must wager differently or elsewhere. But I can
never hope to be sure; a wager is not an experiment. Even if I wager
and win, it is still possible that I was wrong, that my crime was
unnecessary to victory. But I can argue that I studied the case as closely
as I was able, took the best advice I could find, sought out available
alternatives. And if all this is true, and my perception of evil and
imminent danger not hysterical or self-serving, then surely I must
wager. There is no option; the risk otherwise is too great. […]
This is not an easy argument to make, and yet we must resist every
effort to make it easier. Many people undoubtedly found some comfort
in the fact that the cities being bombed were German and some of the
victims Nazis. In effect, they applied the sliding scale and denied or
diminished the rights of German civilians so as to deny or diminish the
horror of their deaths. … [But t]he theory that distinguishes combatants
from noncombatants does not distinguish Allied from enemy
noncombatants, at least not with regard to the question of their murder.
[…] If one is forced to bomb cities, it seems to me, it is best to
acknowledge that one has also been forced to kill the innocent.
Once again, however, I want to set radical limits to the notion of
necessity even as I have myself been using it. For the truth is that the
supreme emergency passed long before the British bombing reached its
crescendo. The greater number by far of the German civilians killed by
terror bombing were killed without moral (and probably also without
military) reason. The decisive point was made by Churchill in July of
1942:

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In the days when we were fighting alone, we answered the

question: ‘How are you going to win the war?’ by saying: ‘We will
shatter Germany by bombing.’ Since then the enormous injuries
inflicted on the German Army and manpower by the Russians, and
the accession of the manpower and munitions of the United States,
have rendered other possibilities open.

Surely, then, it was time to stop the bombing of cities and to aim,
tactically and strategically, only at legitimate military targets. But that was
not Churchill’s view: ‘All the same, it would be a mistake to cast aside
our original thought … that the severe, ruthless bombing of Germany
on an ever-increasing scale will not only cripple her war effort … but
will create conditions intolerable to the mass of the German
population.’ So the raids continued, culminating in the spring of 1945 –
when the war was virtually won – in a savage attack on the city of
Dresden in which something like 100,000 people were killed. Only then
did Churchill have second thoughts. ‘It seems to me that the moment
has come when the question of bombing German cities simply for the
sake of increasing the terror, though under other pretexts, should be
reviewed … The destruction of Dresden remains a serious query
against the conduct of Allied bombing.’ Indeed it does, but so does the
destruction of Hamburg and Berlin and all the other cities attacked
simply for the sake of terror.
The argument used between 1942 and 1945 in defense of terror
bombing was utilitarian in character, its emphasis not on victory itself
but on the time and price of victory. The city raids, it was claimed […]
would end the war sooner than it would otherwise end and, despite the
large number of civilian casualties they inflicted, at a lower cost in
human life. Assuming this claim to be true (I have already indicated
that precisely opposite claims are made by some historians and
strategists), it is nevertheless not sufficient to justify the bombing. […]
[…]
Utilitarian calculation can force us to violate the rules of war only when
we are face-to-face not merely with defeat but with a defeat likely to
bring disaster to a political community. But these calculations have no
similar effects when what is at stake is only the speed or the scope of
victory. They are relevant only to the conflict between winning and
fighting well, not to the internal problems of combat itself. Whenever
that conflict is absent, calculation is stopped short by the rules of war

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and the rights they are designed to protect. Confronted by those rights,
we are not to calculate consequences, or figure relative risks, or
compute probable casualties, but simply to stop short and turn aside.

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Reading 9 Coady on dirty hands and

supreme emergency
Source: Coady, C.A.J. (2004) ‘Terrorism, morality, and supreme
emergency’, Ethics, vol. 114, no. 4, pp. 782–8.

The pro-state bias

A striking curiosity of Walzer’s argument is that it is presented only as
an argument available to states and their representatives […] But, if we
think only of the connotations of ‘supreme emergency’ and the
conditions mentioned earlier, it is not at all obvious that the issue can
be so restricted. Palestinian resistance groups, for example, can mount a
strong case that they face a hostile power bent upon subordination and
dispossession to a degree that threatens not only their lives but their
way of life. The danger is clearly imminent and many of the militants
would argue that terrorism is the only means of overcoming it.
In his discussion of supreme emergency, Walzer makes his pro-state
bias quite explicit: ‘Can soldiers and statesmen override the rights of
innocent people for the sake of their own political communities? I am
inclined to answer the question affirmatively, though not without
hesitation and worry.’1 And he goes on to speak of nations in a way
that identifies political communities and nations. Of course, Walzer’s
language here leaves logical space for the idea that nations or political
communities can be driven by necessity even where they do not possess
a state or have been deprived of one. Yet it is clear that recourse by
such people or their real or imagined leaders to supreme emergency is
far from his mind. Indeed, in another place, where he is explicitly
concerned with substate agents employing terrorism, Walzer argues that
such terrorism can never be justified or excused. Although he doesn’t
define terrorism very clearly, it is obvious that he is operating with a
version of the tactical definition, saying such things as ‘[terrorism] … is
indefensible now that it has been recognized, like rape and murder, as
an attack upon the innocent.’2 […]

1
Michael Walzer, Just and Unjust Wars, 3rd ed. (New York: Basic Books, 2000), p. 254.
2
Michael Walzer, ‘Terrorism: A Critique of Excuses’, in Problems of International Justice, ed.
Steven Luper-Foy (Boulder, CO: Westview, 1988), p. 238. Actually, Walzer’s understanding
of terrorism as an attack upon the innocent also includes the idea that the attack is
intended to spread fear among other members of the group attacked. This would clearly
include acts and policies of state terrorism such as the British bombing of German cities
as well as the attacks by substate groups.

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 Reading 9 Coady on dirty hands and supreme emergency

But why should states enjoy the supreme emergency license when other
groups do not? This is particularly pertinent when we admit, as Walzer
earlier did, that states can employ terrorism (in the tactical sense). The
primacy of the political community that Walzer sees as validating the
special role of (most) states is highly suspect. Walzer admits of
individuals that they can never attack innocent people to aid their self­
defense.3 He then adds: ‘But communities, in emergencies, seem to have
different and larger prerogatives. I am not sure that I can account for
the difference, without ascribing to communal life a kind of
transcendence that I don’t believe it to have.’4 Walzer goes on to try to
locate the ‘difference’ in the supposed fact that ‘the survival and
freedom of political communities … are the highest values of
international society.’5 Perhaps these are the highest values of
international society, but this is hardly surprising if one construes
international society as a society of political communities, namely,
recognized states. What is needed, at the very least, is an argument that
locates the survival and freedom of states as the highest human value
and one that is capable of justifying the overriding that supreme
emergency requires. I doubt that any such argument exists. We should
certainly avoid the temptation to identify the survival of a state with the
survival of the regime that runs it. But neither should we identify the
survival of the state with the survival of its subjects. Some states may
deserve to perish and their former subjects may be better for their
demise. Nor is it enough to point to the undoubted value of political
life, for there are many other values, such as family relationships,
friendship, and moral integrity, that are equally if not more significant.
And even if some argument could show the preeminent value of
political community and the life it allows, this would still leave a gap
between political community and state, a gap that Walzer’s argument
here obscures. At least some revolutionary or dissenting groups can
plausibly claim to be or to represent political communities and to
deploy violence in defense of a threatened political life. If so, the value
that is supposed by Walzer to legitimate resort to supreme emergency
should be available to them as well.

3
Walzer, Just and Unjust Wars, p. 254. At least this seems to be what he is saying. The issue
is confused by his tendency here as elsewhere to put the point as though he is reporting
common opinion: ‘It is not usually said of individuals in domestic society that they
necessarily will or that they morally can strike out at innocent people, even in the
supreme emergency of self-defense. They can only attack their attackers.’
4
Ibid.
5
Ibid.

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Yet this is precisely what Walzer is at pains to deny. The contrast in

treatment is stark in what Walzer says of the terrorist excuse that
attacking the innocent is the only option they have. Walzer objects to
this that other strategies are available if you are opposing liberal and
democratic states and that terrorism never works against totalitarian
states.6 […] ‘I doubt that terrorism has ever achieved national liberation
– no nation that I know of owes its freedom to a campaign of random
murder – although terrorism undoubtedly increases the power of the
terrorists within the national liberation movement.’7
These arguments are hardly decisive as they stand, and they become still
less persuasive when set against what Walzer says of the World War II
bombing. As to the arguments themselves, the claim that terrorism will
work (and nothing else will) need not mean that terrorism must work all
by itself, as Walzer’s comment about failure to achieve national
liberation might suggest. The ‘nothing else’ claim need only mean that
nothing else will fulfill the role that has been assigned to terrorism. […]
So understood, the question is whether terrorism has ever made a
crucial, irreplaceable contribution to national liberation (or the achieving
of the significant revolutionary goals, whatever they are). To say the
least, this is a very difficult matter to decide. Did the terrorism of
groups like the Stern gang play such a part in establishing the state of
Israel? But, in any case, the question is structurally very similar to the
one Walzer poses for the legitimacy of the British bombing.
As we saw earlier, Walzer is sympathetic to the only option story for the
early stages of the terror bombing even while admitting that serious
studies subsequently indicate the campaign to have been futile on its
own terms. He thinks Churchill had to gamble because the stakes were
so very high and the danger imminent. Walzer doesn’t, of course, think
that this means that probability has no relevance to the gamble but just
that the estimated probability doesn’t have to be set so high. […] This
is strikingly at odds with what he says about nonstate terrorists who
argue that attacking noncombatants is the only option they have. They
have no such latitude with probabilities, no matter how imminent and
awful the threat. It seems that threats to their political community can
never be great enough to constitute the sort of ‘immeasurable evil’ that
Walzer sees in the Nazi threat.8 I am at a loss (inevitably) about gauging
‘immeasurable’ evils, but it would not seem impossible that various
struggles against brutal, murderous, tyrannical regimes could sometimes
6
Walzer, ‘Terrorism: A Critique of Excuses’, pp. 239–40.
7
Ibid., p. 240.
8
Walzer, Just and Unjust Wars, p. 259.

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reasonably be viewed as confronting supreme emergency. Of course,

they cannot hope to succeed against a totalitarian state, according to

Walzer, because terrorism never can succeed against a totalitarian state.

Yet the terrorism of the bombers was itself directed against a

totalitarian state and was posited on the subjects of that state being able

to influence the state’s policy and workings.

We should conclude that the attempt to restrict the supreme emergency

exemption to states is unpersuasive. Either it applies more generally or

it does not apply at all.

The second difficulty

This brings me to my second difficulty with the category of supreme
emergency. If we reject Walzer’s attempt to restrict the supreme
emergency exemption to states, the question arises whether the
broadening of the potential application of supreme emergency
considerations provides a reason for skepticism about the category
itself. Those in the dirty hands tradition who restrict its application to
the sphere of state politics are partly moved by a certain romanticism
about the superiority of the values served by states and by politics more
generally. But they are also concerned to preserve the rarity value of the
dirty hands exemption. As the name suggests, the supreme emergency
story, as a version of the dirty hands tradition, gets its persuasiveness
from the idea that its disruptive power to override profound moral
prohibitions is available only in the rarest of circumstances. Any
broadening of the reach of those circumstances tends to reduce the
rarity value of the exemption and hence increase the oddity of the idea
that it can be right to do what is morally wrong. Why not allow that the
exemption can apply to huge corporations, the existence of which is
central to the lives and livelihoods of so many? Or, contrary to Walzer’s
declared position, to individuals when they are really up against the
wall? Yet, the more we move in this direction, the more the currency of
supreme emergency is devalued.
These considerations suggest that the category of supreme emergency,
in spite of its surface clarity, is conceptually opaque. This opacity is
alarming enough in itself since it means that those using the concept
may not be making clear sense, even to themselves. Yet, in the context
of public discourse about war and terrorism, we should be particularly
worried about allowing exemptions from profound moral and legal
constraints under categories that are, at the very least, so open to

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divergent interpretations. Both the morality and legality of political

violence must be concerned with the dangerous consequences of
allowing justifications or exemptions that are likely to be exploited by
any side to a conflict. […] In the context of the present terrorism alert,
the promulgation of a doctrine of supreme emergency is fraught with
danger.
It may be objected that these are mere practical problems about the
promulgation of what may nonetheless be a ‘true’ moral thesis. Perhaps
the supreme emergency exemption states a moral truth that it would be
morally disastrous to publicize. Even to concede this would be to rob
the exemption of much of its point since it is supposed to form part of
the publicly accessible wisdom about the waging of war and other
forms of political violence. But the objection’s distinction between the
truth of a moral thesis and the value or disvalue of its promulgation is,
in any case, debatable as a universally applicable distinction. Even those
of us who think that truth, in some substantial sense, does apply to
moral discourse need to acknowledge that moral truths are supported
by practical reason and are dependent in complex ways on issues of
practicality. This is particularly pertinent to matters of political morality
where the need for public accessibility and the real possibility of rational
public endorsement are rightly prominent.9

9
There are connections here with Immanuel Kant’s principle of publicity and Rawls’s
related, though rather different, appeal to publicity in his elaboration of an idea of public
reason, but this is not the place to explore the matter further. See Kant, ‘Perpetual
Peace’, app. 2 in Kant on History, ed. Lewis White Beck (Indianapolis: Bobbs-
Merrill, 1963), esp. pp. 129–30; and John Rawls, ‘The Idea of Public Reason Revisited’, in
John Rawls The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999),
pp. 129–80, esp. pp. 132–40.

166
 Glossary

Glossary
act utilitarianism
A view in moral theory that acts are right in so far as they produce the
best consequences, measured in terms of the greatest happiness, and
wrong in so far as they do not.
acts and omissions (doctrine of)
The view that there is a morally significant distinction between what we
do and what we omit to do. The doctrine says that, in certain
circumstances, failure to perform an act, when there are certain foreseen
bad consequences of that failure, is morally less bad than to perform a
different act which has the identical foreseen bad consequences. For
example, it is worse to kill someone than to allow them to die.
category mistake
The error of ascribing to something of one category a feature that can
only properly be ascribed to something of another category. Colours,
for example, can only be ascribed to things that are visible. Hence, it
would be a category mistake to ascribe them to things that are not
visible, such as days of the week. Thus the question ‘what colour is
Thursday?’ is unanswerable, because it commits a category mistake.
collateral damage (or killing)
Damage (or killing) that occurs as a side-effect (from latus, meaning
‘side’) or unintended effect of the main aim of the action. It is
standardly used in just war theory to refer to unintended non­
combatant casualties.
Contingent Pacifism
Pacifism that is contingent on certain features of the way the world is.
A Contingent Pacifist might regard all current wars as unjust but be
able to envisage the possibility of a just war under different
circumstances, perhaps with very smart weapons that only harmed those
who were liable to be harmed, and in strict proportion to the unjust
harms that they caused.
coordination problem
A situation in which the interests of agents coincide, but their actions
need coordination in order to reach an outcome in which those interests

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are satisfied. Informally, this is a situation in which each person has an

interest in doing something that chimes in with what the others do.
Coordination problems differ from conflicts in which the interests of
agents are directly opposed. It might be that two parties in a war have
directly conflicting interests in most respects. That is, after all, why they
are fighting a war. But they have coinciding long-term interests in
preventing civilian casualties, or in preventing the use of biological
weapons. The rules of war are in part an attempt to resolve
coordination problems.
deontology
A moral theory in which duty (deon in Greek) is primary in determining
our moral obligations, rather than the consequences of our actions.
Characteristically, deontologists insist that there are some actions –
perhaps those that violate basic rights – which are impermissible,
whatever the consequences.
Descriptive Realism
The view that states, generals, armies, and so on, do not as a matter of
fact operate on the basis of notions of justice and morality. It is an
empirical claim about the world, rather than a strictly philosophical
claim. It is certainly tempting to think that sometimes, for some actors,
in some wars, Descriptive Realism is true, and at other times, for other
actors, in other wars, it is false. (Contrast with Prescriptive Realism.)
dirty hands
‘Dirty hands’ refers to the idea that a political actor must act wrongly –
get their hands dirty – in order to secure the best outcome, or avoid
some morally disastrous outcome. The idea that supreme emergency
justifies the deliberate targeting of civilians is one example of ‘dirty
hands’ thinking. The term comes from Jean-Paul Sartre’s play of that
name, and was popularised by Walzer.
discrimination (principle of)
A Jus in Bello condition, specifying that in order to fight justly,
combatants must distinguish between those they may kill and those they
may not kill, deliberately targeting only the former.
double effect (doctrine of) (DDE)
The doctrine (or principle) of double effect says that there is an
important moral difference between bad consequences, or harms, that

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 Glossary

are foreseen and intended, and those that are foreseen but unintended.
According to the doctrine, sometimes it is permissible to cause a harm
as a side-effect of bringing about a good result, when it is not
permissible to cause such a harm as a means to bringing about the
same good end. In the permissible case, the first harm is merely
foreseen, but in the impermissible case the harm is intended.
immunity
Immunity as a moral concept is similar to immunity as a physiological
concept. Someone who is immune from measles cannot catch measles.
Someone who is (morally) immune from intentional killing in war ought
not to be intentionally killed in war. On the standard view, non­
combatants ought not to be intentionally killed in war, hence the
principle of non-combatant immunity.
Jus ad Bellum
Jus ad Bellum conditions are the conditions that specify when it is
morally permissible to go to war.
Jus in Bello
Jus in Bello conditions are the conditions that specify what actions are
morally permissible in war.
Jus post Bellum
Jus post Bellum conditions are the conditions that specify rights and
obligations of parties after a war, and so what is morally permissible
when war is over.
just war theory
A project, in philosophy, which considers the justifiability of war and
killing in war and concludes that there are occasions when it may be
justified. Any theory that says that there can be a just war, even if only
in theory, is a just war theory.
Just War Tradition
A long historical tradition, starting with St Augustine, which lays out a
set of conditions that say when a war is just, and when killing in a war
is permissible. Standardly the Just War Tradition presents Jus ad Bellum
conditions and Jus in Bello conditions: if these are met, then the
combatants are fighting justly; if not, then they are fighting unjustly.

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liability
Someone is liable to a harm if they have no right not to be harmed. If
they have a right not to be harmed, they are immune from that harm
and they ought not to be harmed. If they are liable to be harmed, then
they are not immune from that harm, and it may be permissible to
harm them. (See non-combatant immunity (principle of).)
Machiavellian amorality
A view, attributed to Niccolò Machiavelli (1469–1527), that political
leaders (‘princes’) ought to abjure (conventional) moral norms if they
are to govern well.
material non-innocence
The state of being a physical or material threat, contrasted with moral
non-innocence and with material innocence. The term ‘innocence’
derives from the Latin word nocentes, which means people who are
threatening or injurious. In the Just War Tradition, but not in ordinary
discourse, innocence tends to mean material innocence, and contrasts
with harming, not with guilt or culpability.
moral equality of combatants (MEC)
Combatants on both sides of a war, regardless of the justice of their
cause, are equally permitted to kill each other and equally liable to be
killed. (See liability.)
moral non-innocence
The state of being morally culpable, contrasted with material non­
innocence. In ordinary discourse, but not in the Just War Tradition,
the opposite of innocence is guilt, or culpability; that is, we tend to
mean moral innocence and moral non-innocence.
non-combatant immunity (principle of)
The view that non-combatants must not be intentionally harmed –
targeted – in war. A corollary of non-combatant immunity is combatant
liability.
‘ought’ implies ‘can’ (principle of)
A principle endorsed by Kant that moral norms only cover possible
actions; the claim is that we are only under an obligation to do
something if we are able to do that thing.

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 Glossary

Pacifism
The view that all war is unjust and that it is morally wrong to fight a
war, whatever the circumstances. There are different varieties of
Pacifism including consequentialist and deontological varieties, and
Contingent Pacifism.
Prescriptive Realism
A view that statesmen, politicians and combatants in a war ought to
behave as if notions of justice and morality do not apply to warfare.
(Contrast with Descriptive Realism.)
proportionality (principle of)
In just war theory and in the Just War Tradition, the principle of
proportionality is a Jus in Bello condition; it is that the harm caused by
an act must be proportional to the good end that the agent aims at. It
is therefore not permissible to bomb a country ‘back into the stone
age’, if a just war aim can be achieved with a lower level of harm; such
action would be disproportionate.
Realism
The idea that notions such as morality and justice do not apply to war.
It can take descriptive and prescriptive forms. Descriptive Realists claim
that, as a matter of fact, participants in war do not standardly think in
moral terms. Prescriptive Realists claim that participants ought not to
try to do so. (See Descriptive Realism and Prescriptive Realism.)
supreme emergency
A phrase coined by Winston Churchill and used to describe a situation
in which a nation state faces a serious and imminent threat to its
existence. Walzer and others claim that supreme emergency constitutes a
situation in which the normal rules of war may justifiably be overridden.

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Acknowledgements
Grateful acknowledgement is made to the following sources:

Cover
German gas mask, c.1915–18, leather with plastic eyepieces and steel
fittings. Science Museum, London, inv. No. A637236_(0001). Photo: ©
Science Museum/Science & Society Picture Library.

Reading 1
Orend, B., ‘War’: 3. Realism, Stanford Encyclopedia of Philosophy,
8 July 2005, The Metaphysics Research Lab., Centre for the Study of
Language & Information, Stanford University, Stanford USA.
Reproduced with the kind permission of the author and Stanford
University. http://plato.stanford.edu/archives/fall2005/entries/war/.

Reading 2
‘The moral equality of soldiers’ and ‘The case of Hitler’s generals’.
From Just and Unjust Wars: A Moral Argument with Historical Illustrations by
Michael Walzer, copyright © 1977. Reprinted by permission of Basic
Books, a member of The Perseus Books Group.

Reading 3
McMahan, J., 2006, ‘On the moral equality of combatants’, Copyright ©
Jeff McMahan. The Journal of Political Philosophy: vol. 14, no. 4, Blackwell
Publishing Ltd. UK. Reproduced courtesy of Jeff McMahan.

Reading 4
Hurka, T., Summer 2007. Published online 25 March 2011. ‘Liability
and just cause’, Ethics and International Affairs, vol. 21: pp. 199–218, ©
Carnegie Council for Ethics in International Affairs 2007. Issue 2 (The
Ethics of War and Peace). Reproduced by permission of Cambridge
University Press UK.

Reading 5
‘Naked soldiers’ and ‘Submarine warfare: the Laconia affair’. From Just
and Unjust Wars: A Moral Argument with Historical Illustrations by Michael
Walzer, copyright © 1977. Reprinted by permission of Basic Books, a
member of The Perseus Books Group.

172
 Acknowledgements

Reading 6
May, L. (2005) ‘Killing naked soldiers: distinguishing between
combatants and noncombatants’, Ethics and International Affairs, vol. 19,
no. 3, pp. 39–53. DOI: 10.1111/j.1747-7093.2005.tb00553.x. Copyright
© John Wiley & Sons, Inc.

Reading 7
Mavrodes, G.I., ‘Conventions and the morality of war’ from Philosophy
and Public Affairs, vol, 4, no. 2. Winter 1975, (8) Copyright © 1975 John
Wiley & Sons Inc. Reproduced with permission of Blackwell Publishing
Ltd. UK.

Reading 8
‘Supreme emergency: the nature of necessity and overriding the rules of
war (German cities)’. From Just and Unjust Wars: A Moral Argument with
Historical Illustrations by Michael Walzer, copyright © 1977. Reprinted by
permission of Basic Books, a member of The Perseus Books Group.

Reading 9
Coady, C.A.J., July 2004, ‘Terrorism, morality and supreme emergency’,
Ethics, vol. 114, no. 4, University of Chicago Press, Chicago USA.

Every effort has been made to contact copyright holders. If any have
been inadvertently overlooked the publishers will be pleased to make
the necessary arrangements at the first opportunity.

173
Index

Index
Page numbers in bold refer to figures. Coady, C.A.J. 102–4, 162–6

see also dirty hands; supreme emergency

abandonment see acts and omissions

collateral damage 77, 167

act utilitarianism 13, 18, 167

see also double effect, doctrine of; proportionality

see also utilitarianism

‘collective agents’ 21n

acts and omissions 26–7, 167

collective responsibility 74

‘ought’ implies ‘can’ 21, 22, 170

group membership 73–6

Aquinas, St Thomas 11
nation states 102–7

Arrigo, Jean Maria 113

collective responsibility see ‘collective agents’

atom bombs:
‘commando order’ to Rommel 41, 43, 56, 129

Campaign for Nuclear Disarmament 8

consent 48–9, 57, 78, 136–7, 138

used against Japan 43, 51, 53, 99

see also ‘boxing match’ model of war; inalienability
see also bombing; proportionality; Second
of rights; liability; voluntariness argument

World War
consequentialism 107, 111, 113

Augustine of Hippo, St 11, 169

Contingent Pacifism 18, 18, 25, 75, 81, 167

Austria 7, 8, 9
see also Pacifism
see also First World War contracts see voluntariness argument
conventions, and war 85–8, 149–54
Baron, Marcia 112–17
coordination problems 20, 167–8
Bentham, Jeremy 108

bin Laden, Osama 71

David and Goliath 86, 150

see also 9/11 DDE see double effect, doctrine of

bombing:
deontology 13, 168

proportionality and 12, 82, 83, 97, 171

dirty hands 103, 165–6, 168

in Second World War:

discrimination 14, 22, 39, 48, 50–1, 69, 141, 168

by allies in Europe 15, 17, 51, 83, 99, 100, 101,

disrupted 72, 74, 84, 89, 146–8

152, 157–61, 164

supreme emergency and 102, 103

by Germans 43, 158

unjust combatants and 134

of Japan 43, 51, 53, 99

unreasonable example 70, 71

‘boxing match’ model of war 48, 58, 136–7, 138, 140–1

see also immunity; Jus in Bello; liability;

see also voluntariness argument

non-combatants

Bufacchi, Vittorio 113

double effect, doctrine of (DDE) 70, 79–84,

89, 168–9

Campaign for Nuclear Disarmament 8

Dresden 15, 51, 160

category mistakes 19, 167

see also bombing

champions, combat of 85, 86, 149–50

children 99
Edmonds, David 7

see also non-combatants

Eidinow, John 7

Christianity 11, 20
epistemological argument and combatants 55–7, 60,

Catholicism 130
130–1, 132

Christopher, Paul 139

ethics 10

Churchill, Winston 97, 155, 157, 158, 159–60,

see also moral philosophy

164, 171
euthanasia 140

civilians see non-combatants

extraordinary rendition 98, 110

civil liberties see rights

see also torture

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 Index

Jus in Bello (JiB) 11–12, 29, 39, 41, 42–4, 50–2, 130,
‘Falling Person’ thought experiment 16–17, 45 168, 169, 171
false consciousness 128 exempted 97, 98, 105
Feinberg, Joel 139 moral equivalence of combatants and 41, 42–4,
Ferdinand I (Holy Roman Emperor) 109n 48, 49
First World War 7–9, 143–5 realism and 22–3
Fletcher, George 42 see also discrimination; immunity; Jus ad Bellum; just
fog of war 76, 77 war theory; Just War Tradition; proportionality;
foreseeable effects see double effect, doctrine of right intention; supreme emergency
Frowe, Helen 9, 16, 17, 77–8, 83–4, 112 Jus post Bellum 28, 169
see also double effect, doctrine of; ticking bomb just cause 12, 39
scenario see also Jus ad Bellum
just war theory 11, 13–14, 126, 127, 167,
generals 130 169, 171
see also Rommel, Erwin boundaries of 17–20, 18
Geneva Convention 12 examples 15–17
group membership see ‘collective agents’ see also Jus ad Bellum; Jus in Bello; Just War
Grotius, Hugo 11, 40, 75 Tradition; proportionality; right intention
Just War Tradition 11–12, 13–14, 23, 28–9, 39–44,
Hague Convention 12 169, 170, 171
Harris, Sir Arthur ‘Bomber’ 17 non-combatants and 69, 70, 127
Hegel, G.W.F. 108 standard as wrong 48, 50–2, 54
historical examples, use of 15–16, 17 see also Jus ad Bellum; Jus in Bello; just war theory;
see also thought experiments proportionality
hit-squads 25
Hobbes, Thomas 108, 125 Kant, Immanuel 108, 109, 110–11, 114, 115, 166n
honour 23 ‘ought’ implies ‘can’ 21, 22, 170
Hurka, Thomas 57–9, 60, 78, 138–42 rights 110–111
Kennan, George 125
Iliad (Homer) 150 Kissinger, Henry 125
immunity 169
of non-combatants 12, 39, 69–72, 77–8, 79, 89, Lackey, Douglas 127
127, 134, 141, 169, 170 last resort 12, 39
as convention 85–8, 151–4 Lazar, Seth 9, 14, 88
supreme emergency and 102, 104, 106–7, 108, legitimate authority 12, 39
157–61 pro-state bias 162–5
see also bombing; discrimination; liability; see also Jus ad Bellum; Jus in Bello; just war theory;
supreme emergency Just War Tradition
inalienability of rights 139–41 lesser evils 26
see also consent liability 40, 41, 44, 45, 52, 170
intention see right intention combatants and 59, 73–8, 84, 135, 141
International Relations theory 18 naked/non-threatening soldiers 73–5, 76,
143–8
Japan 43, 51, 53, 99 unjust 52
Jus ad Bellum (JaB) 11–12, 28, 29, 39, 48, 49, 50, 51, non-combatants and 69
130, 169 see also discrimination; immunity; moral
see also Jus in Bello; just war theory; Just War equivalence of combatants; non-combatants;
Tradition; right intention; proportionality voluntariness argument

175
Index

Locke, John 108 Nozick, Robert 16, 139

Lusso, Emilio 143–5 nuclear war see atom bombs

Machiavellianism 20, 125, 170 obligations see acts and omissions

Marxism 128 Ohlin, Jens David 42
material non-innocence 45, 47–8, 60, 138–9, 170 Orend, Brian 20–1, 23, 98, 125–7
Mavrodes, George 84–8, 89, 149–54 ‘ought’ implies ‘can’ 21, 22, 170
May, Larry 72, 74–7 see also acts and omissions
McMahan, Jeff 8–9, 10, 15, 16, 41, 50, 51, 54, 88,
132–7, 138, 141, 142 Pacifism v, 9, 18, 18, 19–20, 24–7, 24, 72, 78, 167,
criticism of Walzer 47–8, 52, 55–6, 60 171
epistemological argument and 55–7 Parfit, Derek 54
voluntariness argument and 57, 59 Philosophy and Public Affairs (journal) 10
see also moral equivalence of combatants; unjust Prescriptive Realism 18, 18, 21, 22–3, 171
combatants; Walzer, Michael principle of double effect see double effect, doctrine of
McPherson, Lionel 84 prisoners of war 41, 56, 129, 131
Mellow, David 29–30, 82n proportionality 12, 13, 39, 48, 85, 133, 134, 141–2,
mercenaries 137 150, 167, 171
Mexican standoff 45–6, 46 bombing and 12, 82, 83, 97, 171
moral equality of combatants 40–4, 128–35, 170 see also Jus ad Bellum; Jus in Bello; just war theory;
epistemological argument and 55–7, 60 Just War Tradition; supreme emergency
self-defence and 40, 45–9, 60 prospects of success 12, 39
voluntariness and 57–9, 60, 138–42 see also Jus ad Bellum
see also liability; unjust combatants; voluntariness Pufendorf, Samuel 11
argument
moral non-innocence 47–8, 170 Rawls, John 108, 166n
moral philosophy 10, 13, 28–9, 98 Reader, Soran 25
see also just war theory Realism 18–20, 18, 125, 171
Morgenthau, Hans 125 Descriptive realism 18, 21–2, 125–6, 168, 171
Prescriptive Realism 18, 18, 21, 22–3, 126–7, 168,
naked/non-threatening soldiers 73–5, 76, 143–8 171
nation states see ‘collective agents’ reconciliation 23
Nazism 101, 129, 156 right intention 12, 13, 28–9, 39, 82, 84
see also Second World War; supreme emergency see also double effect, doctrine of; Jus ad Bellum; Jus
Niebuhr, Reinhold 125 in Bello; just war theory; Just War Tradition;
9/11 71, 98, 110 supreme emergency
non-combatants v, 12, 14, 39, 48, 51, 89 rights 13, 40, 47–8, 57–8, 70–71, 76, 97, 98, 105–106,
doctrine of double effect (DDE) and 79–84 110–111
immunity of 12, 39, 69–72, 77–8, 79, 89, 127, 134, civil liberties 97
141, 169, 170 claim rights 58
as convention 85–8, 151–4 liberty rights 58
munitions workers 75 rights-based theories 13, 98, 105–106, 110–111
supreme emergency and 102, 104, 106–7, 108, see also consequentialism; deontology; utilitarianism
157–61 Rommel, Erwin 15, 40–1, 43, 56, 129–30
innocence of 99 Russell, Bertrand 7, 8–9, 24
right of unjust combatants to protect 52, 60
see also discrimination; immunity; liability Sartre, Jean-Paul 168
non-innocence 45, 47–8, 60, 138–9, 170 Second World War 15, 24, 26

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 Index

bombing:
by allies in Europe 15, 17, 51, 83, 99, 100, 101, ultima ratio (last resort) 39
152, 157–61, 164 see also Jus in Bello
by Germans 43, 158 unjust combatants 14, 25, 42–3, 47, 48–9, 133–5
of Japan 43, 51, 53, 99 epistemological argument and 55–6, 60, 130–1,
Britain 1940–42 15, 97, 101, 110, 157–61 132
Nazism 101, 129, 156 fighting justly and 50–2, 60, 141–2
as supreme emergency 101–2 voluntariness and 57–9, 60
Warsaw Ghetto 47–8 see also moral equality of combatants
see also bombing; Churchill, Winston; Rommel, utilitarianism 13
Erwin act utilitarianism 13, 18, 167
second-order threats 77 supreme emergency and 23, 104–8, 160–1
self-defence 40, 45–9, 82, 106, 156
see also moral equality of combatants Vietnam War 10, 24
Shakespeare, William 130, 132 Vitoria, Francisco de 11, 40, 108, 130, 131
Steinhoff, Uwe 12 voluntariness argument 57–9, 60, 78, 138–40
supreme emergency 15, 97–8, 99–102, 118, 155–61, see also ‘boxing match’ model of war; consent
168, 171
alternative to 108–9 Waltz, Kenneth 125
objections to Walzer 103–4, 107–8, 162–6 Walzer, Michael v, 10, 11, 15, 42
utilitarianism and 23, 104–8, 160–1 double effect and 80–1, 83
see also non-combatants; ticking bomb scenario moral equality of combatants and 40, 45–6, 59,
60, 128–31, 133, 134
Teichman, Jenny 24 criticised 47–8, 49, 52, 55–6, 74, 135, 136–7,
terrorism 71 138–9
supreme emergency and 102, 104, 162–6 naked/non-threatening soldiers 73–5, 76,
see also ticking bomb scenario 143–8
Thompson, Judith Jarvis 82 Realism and 21, 22, 126
thought experiments 16–17, 26–7, 112 on Rommel 40–1, 56
criticism of 117 supreme emergency and 97–8, 99–102, 155–61,
see also historical examples, use of 168, 171
Thucydides 125 alternative theory to 108–9
ticking bomb scenario 23, 97, 110, 110–12, 118 theory criticized 98, 103–4, 107–8, 162–6
criticisms of 112–17 as utilitarian 105–8, 160–1
Toner, Christopher 108–9 see also McMahan, Jeff; moral equivalence of
torture 110, 111–17 combatants
see also extraordinary rendition; ticking bomb Warsaw Ghetto 47–8
scenario Wittgenstein, Ludwig 7–9

177