“Jus in Bello and the Sophisticated Utilitarian”

“Jus in Bello and the Sophisticated Utilitarian”[1]

David M. Barnes

Lieutenant Colonel, US Army

Doctoral Candidate, Philosophy

University of Colorado, Boulder

dmbarnes@colorado.edu

913.683.1673

Unfortunately, militaries have intentionally targeted civilians and civilian infrastructure.[2] Often, these attacks have been supported by the rationale of better long-term consequences—a utilitarian approach. Several critics of these operations blame an appeal to utilitarian calculation unbridled by moral constraints. Many theorists have pointed to the need for regulating what appears to them to be an abandonment of moral principles in wartime to the cold-calculation of the consequences—a wartime “cost-benefit analysis.”[3] They point to the principles of discrimination and proportionality—part of jus in bello—to govern the conduct of belligerents. Furthermore, it is these principles—T. Nagel calls them absolutist principles—that keep the utilitarian calculation in war in check.[4]

Call these views UTIL and ABS respectively:

UTIL: An act is morally right iff the act maximizes utility. And,

ABS: an act is morally right iff the act does not violate a moral principle.[5]

Nagel recognizes the tension between these seemingly incompatible views, particularly when applied to war. In his “War and Massacre,” Nagel correctly identifies the shortcomings with each, and he holds an absolutist-formed view in that he believes combatants should be bound by moral principles. Additionally, he acknowledges the moral intuition that in some instances dogmatic following of these principles might result in a great amount of harm. Thus, he proposes a compatibilist-like solution, what he notes as qualified absolutism, to address this apparent dilemma.[6]

I agree with Nagel’s criticism of ABS and UTIL, and while I find that his qualified absolutism solution partially successful, I offer a better solution—one that has not been adequately explored. One should not begin from absolutist principles as Nagel does, nor should one abandon them. Relying only on an utilitarian decision making procedure also fails. Rather, I propose that a different utilitarian perspective on war—in particular, a Railton-esque sophisticated utilitarian perspective—could not only account for these same just war principles, but also address the apparent moral dilemmas that occur when absolutist principles provide conflicting guidance: e.g., when violating an absolutist principle would result in a very large amount of good.

After outlining the traditional jus in bello principles of discrimination and proportionality—principles both Nagel and I agree are essential moral restrictions on war fighting—I will restate Nagel’s absolutist argument against a utilitarian position and outline his qualified absolutist position. Next, I will examine and modify Railton’s conception of sophisticated consequentialism to propose a sophisticated utilitarian approach to the conduct of war, and I will argue that a sophisticated utilitarian military leader would be committed to the principles of jus in bello, as commitments to these principles will generally lead to the overall maximization of impersonal good. I will also illustrate how an intensive moral development program is required and can both instill the principles of war and foster commitment to these principles. Finally, I will discuss some objections against sophisticated utilitarianism itself and possible objections to a sophisticated utilitarian approach to the conduct of war.

* * * * *

Traditionally in Bellum justum, conduct in war has been addressed separately from the decision to wage war. The question of fighting justly has focused on moral intuitions concerning who can be targeted and the amount of force allowed. These principles are known as discrimination and proportionality respectively.[7] Together these necessary tenets restrict military operations. As Walzer writes, “The governing principle here is simply that every effort be made to protect civilian life from both direct attack and collateral damage.”[8]

What traditionally separates the concept of murder and justified killing in war is the status of the belligerent participants. It is permitted to target combatants and not permitted to target non-combatants, but in practice the distinction is usually not so clear.[9] Although the line between combatant and non-combatant is contentious, most would agree that targeting innocent civilians is forbidden . Proportionality, alternatively, concerns the amount of force allowed in an operation. It draws from an intention to limit the damage and harm incurred in combat to both combatants and non-combatants. By its nature, proportionality balances the consequences of the military advantages of an action with the associated cost.[10] Of course, like discrimination, the tenet of proportionality is difficult to meet.[11]

Discrimination and proportionality are generally considered absolutist conditions of jus in bello and as such have been incorporated in the laws of war (Laws of Armed Conflict or LOAC).[12] Nagel, however, has noticed two interesting results of adopting the principles (as absolute) behind the tenets of proportionality and discrimination.[13] First, they are often violated on utilitarian grounds, and second, there do seem to be cases for exceptions to these principles in extreme circumstances.

* * * * *

Nagel argues for what he terms as a qualified absolutist position on fighting war.[14] While he understands the often compelling rationale that points to an evaluation of the consequences of a particular military action, he believes that only through adoption of absolutist principles of war can we restrict the possibility of immoral action for even a slight gain of utility.[15]

It is not that utilitarianism has no place in war, Nagel argues. Certainly one could hold that the decision to go to war and the means used in war should result in the best consequences. Furthermore, he notes that a utilitarian could argue for applying restrictions in how one prosecutes war. He writes, “Utilitarianism certainly justifies some restrictions on the conduct of warfare. There are strong utilitarian reasons for adhering to any limitations which seem natural to most people—particularly if the limitation is widely accepted already. An exceptional measure which seems to be justified by its results in a particular conflict may create a precedent with disastrous long-term effects.”[16] The importance of considering consequences in war is echoed by Hurka. He notes, “[J]ust war theory does not ignore the consequences of war and would not be credible if it did: a morally crucial fact about war is that it causes death and destruction. The theory therefore contains several conditions that forbid choices concerning war if their consequences are in some way unacceptable.”[17]

Nevertheless, Nagel’s concerns with utilitarianism extend to the conduct of operations that do result in the increase of the general good, but are not on such a scale to qualify as extreme circumstances. He believes that following unrestricted utilitarianism combined with strong argument for military necessity “gives evidence of a moral conviction that the deliberate killing of non-combatants—women, children, old people—is permissible if enough can be gained by it. This follows from a more general position that any means can in principle be justified if it leads to a sufficiently worthy end.”[18]

One way to “rein in” this kind of utilitarian calculation is to somehow draw a limit where beneath it actions in war are solely guided by the absolutist principles. Nagel, thus, introduces the concept of a threshold, where it may be permissible to violate the absolutist position if the threshold is met. He notes that although the concept of a threshold is no longer absolutist in the strict sense, it maintains the prohibition without relying purely on the consequences.[19]

* * * * *

In his influential work, The Methods of Ethics, Sidgwick correctly drew a distinction between the criteria of rightness and the decision procedure involved in a utilitarian theory.[20] He thought that an agent’s motives of action need not be the very utilitarian calculation Nagel and other objectors to utilitarianism believe (i.e., UTIL), nor need it be other’s happiness.[21]

Railton’s conception of a sophisticated utilitarian captures Sidgwick’s claim and further argues that one can live a devoted consequentialist life without being slave to a consequentialist decision making process.[22] UTIL, as Railton would point out, is subjectively consequentialist. He notes that alternatively “a sophisticated consequentialist is someone who has a standing commitment to leading an objectively consequentialist life, but who need not set special stock in any particular form of decision making and therefore does not necessarily seek to lead a subjectively consequentialist life.”[23]

Thus, Railton’s sophisticated utilitarian, Norcross notes, “allows that a ‘standing commitment to leading an objectively consequentialist life’ can co-exist happily with deep personal commitments to other people, that sometimes result in performing a less than optimal action.”[24] And, it is not only commitments to others; the sophisticated utilitarian has commitments to certain principles that support her objectively consequentialist life. Railton further explains that “individuals may be more likely to act rightly if they possess certain enduring motivational patterns, character traits, or prima-facie commitments to rules in addition to whatever commitment they have to act for the best.”[25]

* * * * *

Nagel does acknowledge that there appear to be times where violating an absolutist prohibition would result in far greater good—so called extreme circumstances.[26] Nagel proposes to follow the absolutist principles in the conduct of war until one is faced with an extreme circumstance, then utilitarianism may demand violating the principle. What I propose is not so different, but it approaches the problem from the opposite direction. I think that a military sophisticated utilitarian is guided by her commitments to the principles of discrimination and proportionality, commitments that are consistent with, perhaps required by, her overall commitment to leading a life in which she maximizes the good. Furthermore, she has the similar understanding that Nagel proposes: there will be certain limited times when the utility gained will cause her to set aside her commitment to that principle.

For our sophisticated military leader, she too would be more likely to choose the same alternative as the absolutist because she possesses certain enduring character traits and the commitments to the tenets of proportionality and discrimination. And this seems correct; we certainly want our military leaders to show restraint in war, and we want them to avoid innocent casualties, even when the action might be less than optimal. A sophisticated utilitarian approach to war does both. Railton notes that, “part of the attraction of [sophisticated utilitarianism] is the idea that one should have certain traits of character, or commitments to persons and principles, that are sturdy enough that one would at least sometimes refuse to forsake them even when this refusal is known to conflict with making some gain—perhaps small—in total utility.”[27]

Thus, the military sophisticated utilitarian operates and makes military decisions framed by the tenets of proportionality and discrimination.

Sophisticated Utilitarian Military Leader (SUML): S is a sophisticated utilitarian military leader iff she has a standing overall commitment to leading an objectively utilitarian life, which is manifested by her commitments to the principles of jus in bello.

She is committed to the principles behind these tenets, and so, as Railton suggests, refuses to ‘forsake them’ even when this refusal is known to conflict with making some utilitarian gain. This is not some automaton who looks to utilitarian calculation to maximize the good in every decision; the SUML has both a standing commitment to leading an objectively consequentialist life and deep personal commitments to jus in bello.

* * * * *

As a form of objective utilitarianism, however, SUML is very similar to Nagel’s qualified absolutism. Both presume following the tenets of jus in bello most of the time, and both views acknowledge that (1) there are extreme circumstances, and (2) under extreme circumstances the agent can set aside the principle in question to maximize the good. Nevertheless, the underlying justification for the views are different; SUML approaches the problem from a lifelong commitment to maximizing utility.

Because the sophisticated utilitarian is a consequentialist, the justification is quite simply that of promoting the good. The choice of principles, and of the methodology for identifying exceptions to the principles, is guided by utility. The qualified absolutist unfortunately does not have such a clear justification available. In fact, it is not at all clear what the justification for qualified absolutism could be, if not consequentialist.[28]

A supporter of qualified absolutism would not be satisfied with my observation, but she does lack an explanation of how these principles are grounded. In other words, why discrimination and proportionality, and why should they be absolutely binding (except in extreme circumstances, of course)? It seems clearer that one can argue that these principles limit the destructive consequences in war. Although he argues that jus in bello is deontological, recall Hurka thought that “a morally crucial fact about war is that it causes death and destruction”[29] Nagel also acknowledges that consequentialism does justify “some restrictions on the conduct of warfare.”[30] We ought to then have these principles, as commitments to them would, it seems, limit the brutality of war, increasing overall utility.

As Nagel further points out, in war, “what is unjustifiable in one case may be justified in a more extreme one,”[31] and I agree. But commitments to proportionality and discrimination by military personnel generally do lead to greater amounts of impersonal value. It is consequentially a good thing that nations and military leaders endorse these commitments to these principles, as codified in the LOAC; they limit the brutal nature of unrestricted warfare. As Nagel also writes, it is not “that the occurrence of a certain kind of act is a bad thing, and therefore to be prevented, but rather tells everyone to refrain from such acts, except under certain conditions.”[32]

An objector might counter, “How do we ensure that these SUMLs have these commitments?” What is necessary is a two-part process. First, there must be a comprehensive moral education program. Second, the SUML’s life, as Norcross notes, “may well include performing many acts which are not objectively right. The sophisticated consequentialist is [then] committed to remove those of her values and other motivational traits that do not tend to the overall promotion of impersonal utility.”[33] It is the foundational moral education—one that continues throughout one’s military career—that will teach how to do both.

* * * * *

In Utilitarianism, Mill argues for the importance of a foundational moral education for the utilitarian. He wrote,

education and opinion, which have so vast a power over human character, should so use that power as to establish in the mind of every individual an indissoluble association between his own happiness and the good of the whole; . . . that a direct impulse to promote the general good may be in every individual one of the habitual motives of action, . . . (II)

Similarly, a foundational moral education is necessary for the SUML. She must, as any good sophisticated utilitarian, develop a standing commitment to leading an objectively consequentialist life. Furthermore, she must as a military leader understand

(1) the principles of jus in bello,

(2) why they are important,

(3) how to apply them in military decision making,

(4) making a commitment to follow them, and

(5) that a commitment to these principles is part of her standing commitment to leading an objectively consequentialist life.

In addition, she must understand that ‘what is unjustifiable in one case may be justified in a more extreme one’ and how to tell when there are extreme circumstances.

One method of training military leaders relies upon the promulgation of the current laws and treaties that are associated with jus in bello, e.g., the Geneva Conventions, the LOAC, and the Uniform Code of Military Justice.[34] However, mere promulgation is not sufficient. A more in-depth moral development program is needed, one focusing on internalization in addition to memorization.[35]

Currently, moral education plays a large part of officer development in the United States Military.[36] Initiatives at the Naval Academy include the Department of Leadership, Ethics and Law core course and the First Classmen Capstone Character Excellence Seminar. At the United States Military Academy (USMA), the moral development program includes the Philosophy core course (PY201), Professional Military Education (PME) program, and the Cadet Leader Development System (CLDS). The US Air Force Academy and Coast Guard Academy have similar programs, all designed to further moral development of their graduates.[37]

A recent initiative by the Army has been to re-evaluate the moral dimension of teaching and training leadership since 9/11 and has resulted in not only the publishing of a completely re-written doctrine manual on military leadership, Field Manual 6-22 Leadership, but a substantial investment in time and personnel on capturing lessons learned to incorporate in ongoing and future military-focused moral education. [38]

Cynics might argue that these education programs are ineffective, and certainly there are cases that distinctly highlight an apparent failure on the part of the military leaders. In the Vietnam War, the My Lai incident seemed to typify the apparent failure of the moral development of military leaders. More recently, the mistreatment of prisoners at Abu Ghraib and the Haditha incident, where 24 Iraqis were killed, seem to point to a continued lack of progress. However, drawing conclusions based on these incidents are in a sense unfair to the improvements made within the military towards leader development. There are also many cases where it would appear that the moral education programs are working. Even Walzer offers some of the self-imposed restrictions imposed on pilots during the air campaign of the Gulf War as an example.[39] Although some may argue that the incidents like those in Iraq reflect a general failure rather than exceptions, I think two points must be made, and they could be acknowledged by both supporters and distracters of the concept of SUML. First, I think that most would agree that having no moral education for military leaders would be far worse, and second, incidents like these highlight the necessary dynamic nature of moral education, and that military institutions must assess and improve their moral education process.[40]

Assuming the SUML has received the above education and she has internalized a commitment to an objectively consequentialist life and deep personal commitments to jus in bello, another question remains: how will she learn to recognize the extreme circumstances? I think that here there is no easy answer. Certainly, her moral education must address the indicators that may point to an extreme circumstance, and she should undergo training exercises to challenge her ability to detect and make moral decisions in extreme circumstances. Would this guarantee that the SUML makes the right (or best) decision? No, but it should make her better prepared to make the decision.[41]

* * * * *

I want to address some anticipated objections to what I have so far proposed. I think there are at least three avenues that an objector could argue against my SUML approach to war. First, she might argue against sophisticated utilitarianism as a theory itself. Second, she might continue to be a staunch supporter of absolutism and argue that some acts are always forbidden. Third, she could accept adopting commitments to principles of jus in bello as a SUML but question the efficacy of the moral education program. I think Norcross adequately addresses the first objection in his “Consequentialism and Commitment,”[42] and I have argued that while not perfect, the moral development education systems can be effective and must continue to be improved. Therefore, I will focus on the absolutist objection: some acts are always forbidden, regardless of the good.

Many proponents of an absolutist approach to the conduct of war argue that some acts are always wrong (ABS). Nagel writes, “An absolutist can be expected to try to maximize good and minimize evil, so long as this does not require him to transgress an absolute prohibition like that against murder. But when such a conflict occurs, the prohibition takes complete precedence over any consideration of consequences.”[43]

Let us look at two examples to see whether this absolutist objection is truly damaging to SUML.

Torture 1: A squad has captured a suspected insurgent, who they believe has accurate information about a planted improvised explosive devise (IED) along the squad’s future route. In this case, the captive does in fact know the location of the IED. If the IED detonates, the squad will suffer four casualties; no civilians are in the area.

Or,

Torture 1(a): . . .; it is buried in a schoolyard along the road the squad will use. If the IED detonates, the squad will suffer four casualties, and ten children will be killed.

Let us assume that torturing the insurgent in both cases will cause him to reveal the IED’s location. The absolutist would argue that since torture is never permitted, that the squad in both cases should not torture the insurgent. Nevertheless, intuitively, we feel some remorse that in Torture 1(a), innocent children would lose their lives. Is there an important moral difference between the two cases, one that might sway the absolutist? I think the answer is no. Nagel writes, “[adopting absolute principles] means that we cannot deliberate on whether such measures are justified by the fact that they will avert still greater evils, for as intentional measures they cannot be justified in terms of any consequences whatever.”[44]

The SUML would also not choose to torture the insurgent. She, as a military sophisticated utilitarian, operates and makes military decisions framed by her commitments to the principles regarding conduct in war; one of these principles is the prohibition against torture. Even in the second case, where torturing would save the lives of ten children, the SUML recognizes that Torture 1(a) is not an extreme case, and torturing in this case would violate her commitment to jus in bello.

But let us look at two different cases:

Torture 2: Special agent Bauer has captured the super terrorist who has planted a suitcase nuclear device somewhere in Denver. If Bauer does not find out the location of the bomb, 1 million Denverites will be incinerated, and many more will suffer from nuclear exposure. The captive does know the location (he did in fact plant it), and torturing him would allow Bauer to find and disarm the bomb. Unfortunately for him, the captive would succumb to the treatment and die.

Torture 2(a): . . . . Bauer plans to use the non-invasive feather tickle torture method, which unfortunately cause the captive a slight irritation.

Again, the absolutist would argue that Bauer cannot torture the terrorist in either case. However, I think that, especially in Torture 2(a), the SUML, although troubled by having to violate her own commitment to the principle of not torturing, would chose to torture the terrorist and save the 1 million Denverites. Setting aside the possibility that the Denverites are not innocent (they can be a surely lot), it seems that in either Torture 2 or 2(a), that this is an extreme circumstance. Furthermore, in 2(a), the amount of negative consequences would be very small, especially when compared to the resulting good. Certainly both cases involve a form of torture, but even the strict absolutist would admit that much more good than bad would result in case 2(a). How can she account for the massive loss of innocent life?

While a strict absolutist might object that even in case 2(a) the principle to not torture should take precedent, I think that she actually is in a dilemma between two conflicting principles: one concerning the prohibition of torture and the other to prevent harm to innocents. These principles are often in conflict, but in cases like Torture 2 and 2(a), the conflict becomes more apparent.[45]

On the SUML account, however, the conflict of principles does not occur. Recall that a SUML follows the principles of jus in bello until faced with an extreme circumstance; then utilitarianism may demand violating the principle. Torture 2 and 2(a) are examples of extreme circumstances. The SUML is guided by her commitments to the principles of just conduct in war, e.g., discrimination and proportionality, commitments that are consistent with her overall commitment to leading a life in which she maximizes the good. Furthermore, she understands that there will be certain limited times when the utility gained will cause her to set aside her commitment to that principle. This is one of those times. SUML blocks the moral dilemmas that a strict absolutist encounters.[46]

Finally, something needs to be said about the utility that is maximized during extreme circumstances. In other words, what is the overall utility that is my criterion in extreme circumstances? I think that there are actually two interrelated questions at work here. The first concerns identifying when there is an extreme circumstance, and the second concerns how the SUML makes her decision.[47]

Both identifying the point at which extreme consequences override a principle, and the method for identifying such a point in practice, will be informed by experience and potentially subject to change. Furthermore, we can learn from our past mistakes (and successes). If we can identify actual occasions on which we violated principles because of the perceived disastrous consequences of not doing so, we can evaluate whether those departures from principle were in fact justified.[48]

* * * * *

I have argued that a sophisticated utilitarian account of the jus in bello tenets is not only plausible; SUML is actually preferable to a qualified absolutist approach. The sophisticated utilitarian view accounts for the principles of discrimination and proportionality, and it avoids the dilemmas where absolutist principles conflict in extreme circumstances.

A SUML is guided by her commitments to the principles of discrimination and proportionality, commitments that are consistent with her overall commitment to leading an objectively utilitarian life. Additionally, her commitment to an objectively utilitarian life lead her to understand that in war there will be extreme circumstances—circumstances where the outcome, while violating her deeply held principles, will result in a much greater utility than the alternative.

I also argued that a foundational moral education is necessary for the SUML. She must, as any good sophisticated utilitarian, develop a standing commitment to leading an objectively consequentialist life. Furthermore, she must as a military leader develop commitments to jus in bello, and she must understand that what is unjustifiable in one case may be justified in a more extreme one, developing the ability to identify extreme circumstances. I do admit that identifying the extreme circumstances is no easy task, even for the morally developed SUML. But, I think that this account is preferable to Nagel’s qualified alternative. He writes,

that there may be circumstances so extreme that they render an absolutist position untenable. One may find then that one has no choice but to do something terrible. Nevertheless, even in such cases absolutism retains its force in that one cannot claim justification for the violation. It does not become all right.[49]

Nagel here misses the point. In extreme circumstances, weighing the consequences is all right. During extreme circumstances, the SUML must set the absolutist principle aside—that is what makes the circumstances extreme. While an absolutist approach is forced to decide between competing moral principles, a sophisticated utilitarian approach to jus in bello accounts for these situations.[50]

NOTES

[1] © David M. Barnes, 2009. The views expressed in this paper are those of the author and do not necessarily reflect the official policy or position of the Department of the Army, the Department of Defense, or the U .S. Government.

[2] E.g. the terror bombing in WWII, the siege of Sarajevo, the targeting of civilian infrastructure in Belgrade, Baghdad, Tskhinvali, etc.

[3] Nagel on WWII terror bombing and atomic bomb, Thomas Nagel, “War and Massacre,” in Samuel Scheffler ed., Consequentialism and its Critics, (New York: Oxford University Press, 1988), 55. Cf. Elizabeth Anscombe, “War and Murder,” in War and Morality, edited by Richard A. Wasserstrom, (Belmont, CA: Wadsworth Pub. Co., 1970), Michael Walzer, Just and Unjust Wars, (New York: Basic Books, 1977), and Richard A. Wasserstrom, ed., War and Morality, (Belmont, CA: Wadsworth Pub. Co., 1970).

[4] Nagel, 54 and 57.

[5] Of course, UTIL and ABS are overly simplistic; however, both illustrate extreme views, especially when applied to war. Nevertheless, UTIL and ABS are useful to highlight the tension between attempts to limit the destructive nature of war and the need to meet military objectives.

[6] Nagel, 54.

[7] Cf. Paul Christopher, The Ethics of War and Peace: an Introduction to Legal and Moral Issues, (New Jersey: Prentice Hall, 1994), Robert L. Holmes, On War and Morality, (Princeton: Princeton University Press. 1989), Richard J. Regan, Just War: Principles and Cases, (Washington D. C.: The Catholic University of America Press, 1996), and Thomas Hurka, “Proportionality and Necessity,” in Larry May, ed., War and Political Philosophy (Cambridge: Cambridge University Press, 2008) 127-44.

[8] Michael Walzer, Arguing about War, (New Haven: Yale University Press, 2004), 94.

[9] See Regan, 87-95, Holmes, 104, Hurka, 135-6, and Lene Bomann-Larsen, Reconstructing the Moral Equality of Soldiers (University of Oslo: Acta Humaniora, 2007), 39-40 and 78-89. Note another difficulty with discrimination: the wearing of uniforms. Geneva conventions states that combatants must wear uniforms; it then would conceivably make it easier to distinguish between combatants and non-combatants. So, what about guerrillas who do not wear uniforms or private contractors who wear uniforms? This problem will have to wait for another time.

[10] Regan, 95-98.

[11] Walzer, 137.

[12] E.g., 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, Art. 51 (5) (b)—a sample of LOAC relating to the tenets of discrimination and proportionality.

[13] For Nagel’s discussion on discrimination and proportionality see 59, 62, 65, and 67-9.

[14] Nagel, 54.

[15] Walzer, 39.

[16] Nagel, 53. Another interesting debate is the concept of double effect in war. I do not have room in this paper to explore it fully. Cf. Nagel, 58 and Walzer’s Just and Unjust Wars, 151-9.

[17] Thomas Hurka, “ Proportionality and Necessity,” in Larry May, ed., War and Political Philosophy (Cambridge: Cambridge University Press, 2008), 127.

[18] Nagel, 55-6. Cf. Hurka, 127. He writes, “But deontological moralities are much more restrictive. If they do not contain absolute prohibitions against acts of direct harming such as killing the innocent, they allow these acts only in extreme cases, where their benefits are not just somewhat but vastly greater. Thus they allow killing an innocent person not to save just two other innocents, as consequentialism would, but only to save a hundred or a thousand, and in so doing they weigh harms much more heavily than benefits.”

[19] Nagel, 60-1. Where this threshold lies is an important and difficult problem. I will discuss it more later. Walzer, however, discusses in length about a kind of extreme circumstance—supreme emergencies—in Just and Unjust Wars. (Interestingly, he argues that the terror bombing of Germany in early World War Two was an example of a supreme emergency, while the atomic bombing of Hiroshima was not.) See Walzer 251-68.

[20] Henry Sidgwick, The Methods of Ethics, 7th ed., (Indianapolis, IN: Hackett Publishing Company, 1981).

[21] Sidgwick, 413. Cf. Alastair Norcross, “Consequentialism and Commitment,” Pacific Philosophical Quarterly 78 (1997), 387.

[22] Peter Railton, “Alienation, Consequentialism, and the Demands of Morality,” in Samuel Scheffler ed., Consequentialism and its Critics, (New York: Oxford University Press, 1988).

[23] Railton, 114.

[24] Norcross, 382.

[25] Railton, 120. Cf. Norcross, 394-5.

[26] Nagel, 54.

[27] Railton, 118.

[28] SUML should not be confused with a reformulation of rule utilitarianism. Commitments to following the tenets of jus in bello are, one might argue, nothing more than adoption of a particular set of war rules. Adopting these rules would result in greater overall utility—a view offered by Brandt and others. (Cf. Richard B. Brandt, “Utilitarianism and the Rules of War,” in Philosophy and Public Affairs (Winter 1972): 145-65.) Thus, this form of rule utilitarianism might be formulated as

R-UTIL: an act is morally right iff the act conforms to the set of rules whose adoption results in overall greater utility.

But the critic here would be making the same mistake Railton identifies, namely that R-UTIL in this form is another form of subjective utilitarianism; adoption of the set of rules and following R-UTIL forms a decision making process, and thus this methodology is limited much the same way as UTIL. In addition, R-UTIL introduces other shortcomings, including rule worship, and it suffers similar epistemological concerns a subjective utilitarian approach like UTIL has. Similarly, SUML should not be confused with a two-tiered utilitarian methodology.

[29] Hurka, 127.

[30] Nagel, 53.

[31] Nagel, 65.

[32] Nagel, 61.

[33] Norcross, 398.

[34] Cf. U. S. Department of the Army, Law of Land Warfare, Field Manual 27-10. 1956, DA PAM 27-1, Treaties Governing Land Warfare, 1956, http://www.genevaconventions.org/, Michael Byers, War Law: Understanding International Law and Armed Conflict, (Vancouver: Douglas and McIntyre, 2005), and Michael Reisman and Chris T. Antoniou, eds., The Laws of War: a Comprehensive Collection of Primary Documents on International Laws Governing Armed Conflict, (New York: Vintage Books, 1993).

[35] HLA Hart draws a distinction between what he calls an external point of view and an internal point of view for following the law. Having an external point of view means that one follows the law out of fear of sanction; there is something external enforcing the law. Alternatively, having an internal point of view means that one follows the law because she believes the law is right; she has internalized it. See Hart’s The Concept of Law (Oxford: Clarendon Press, 1961). The same might be said of moral principles such as discrimination and proportionality.

[36] I focus here on the US military’s programs for moral development; I think a global embracing of the jus in bello tenets is needed, but I will leave this discussion for another forum. I would contend that all members of every military undergo some sort of moral development. What this moral program should entail is beyond the scope of this paper. Nevertheless, at a minimum, Discrimination and an introduction to Proportionality must be covered.

[37] Cf., http://www.usna.edu/ethics/, http://www.usma.edu/Committees/Honor/index.htm, http://www.usma.edu/cpme/, and http://www.usafa.af.mil/core-value/. See www.oft.osd.mil/initiatives/ncw/docs/SSTR%20and%20PME%20Presentations/Elkins.ppt for example of assessment and program modification by USMA staff and faculty.

[38] Field Manual No. 6-22, (Headquarters, Department of the Army, Washington, DC, 12 October 2006). An excellent book focusing on education for military decision making is Anthony E. Hartle’s Moral Issues in Military Decision Making, 2d Ed., (Lawrence, Kansas: University Press of Kansas, 2004).

[39] Walzer, 95. He noted that not only were discrimination and proportionality discussed in operation planning, but that they were also in practice.

[40] For an example of the ongoing process of assessment and program change for military officer development at one commissioning source, USMA, see http://www.aacu.org/meetings/annualmeeting/AM08/documents/IntentionalPathways-PowerPoint.pdf . For insight into the developing Officership program see www.strategicstudiesinstitute.army.mil/pdffiles/PUB282.pdf.

[41] I will not outline in detail what makes a certain circumstance extreme in this paper. I think it is intuitive that they exist; Nagel certainly thought so. There seems to be a point where good consequences will far outweigh the bad. In war, I agree with Nagel that there should be rather few cases, but they can exist. Cf. Norcross’ “Comparing Harms: Headaches and Human Lives,” Philosophy and Public Affairs, Vol. 26, No. 2, (Spring 1997), 135-67 for a more in-depth discussion of where this point may lie.

[42] Norcross examines this objection further in “Comparing Harms.” In particular, his Jane, Dick and the fate of humanity scenario helps illustrate this point.

[43] Nagel, 56.

[44] Nagel, 57.

[45] Thanks to Bernhard Koch from the Institut für Theologie un Frieden for reminding me that some deontologists hold to a hierarchy of moral principles and for suggesting the potential problem of modifying the torture objections to account for intuitions against torturing children discussed below.

Although an interesting theory, the absolutist hierarchy model nevertheless has troubles of is own. First, how are the principles rank-ordered within the hierarchy? Assuming that such a ranking exists, there arises the second problem of an agent’s access to the hierarchy’s rank-ordering. Finally, to block my objection, the principle to prevent harm must outrank the prohibition of torture. But, what if either the ranking were reversed or the agent mistakenly reverses the principles? A hierarchy in one sense forces the absolutist agent to choose sides. One way for her to decide which principle is the overriding one would be to assess the consequences of following the different principles in the case at hand. However, I do not think that an absolutist proponent would want to introduce this consequentialist move.

Consider another variation, Torture 3: Special agent Bauer . . . . The captive does know the location (he did in fact plant it), and torturing his child would allow Bauer to find and disarm the bomb. Unfortunately for him, the child would succumb to the treatment and die.

Or even Torture 3(a) where the child being tortured belonged to Bauer—Bauer Jr. Does the situation’s circumstances alter the moral decision? I submit that the moral relevance of Torture 3 and 3(a) do not change. Certainly the mere thought of torturing or harming a child—let alone your own—is terrible. But, these cases reflect the fact that morality is demanding. A SUML would be under much duress contemplating her alternatives in these cases, and she will have to live with the remorse if she decides to do it. Like, Sophie’s Choice, even choosing the best alternative may leave psychological scars. This revelation, however, does not reduce the good the extreme circumstance would bring about. (If it did, then it would no longer be an extreme circumstance.) We want the SUML to normally refrain from torture, and making the decision to set it aside in an extreme circumstance should be a difficult decision; however, SUML accounts for these decisions.

[46] A similar argument could be made from the principle of discrimination, in particular the killing of innocents. For a discussion of the sophisticated utilitarian answer to this question see Norcross “Consequentialism and Commitment,” 399-400. For an in-depth discussion of killing of innocent in war see Holmes, “The Killing of Innocent in Wartime,” 183-213.

[47] Cf. Hurka, 139-143. Hurka is not discussing a sophisticated utilitarian approach here; rather he discusses the problems associated with military decision making in general. One point he raises is whether what defines the just cause of the war (jus ad bellum) itself affects the decisions within the war (jus in bello). This same point was raised by Jeff McMahan in his “On the Moral Equality of Combatants,” The Journal of Political Philosophy: Vol. 14, No. 4 (2006):377-93. Unfortunately, I will have to leave this debate for another time.

[48] A. Norcross suggested the learning aspect of the SUML model. I explore it a bit more in a longer version of this paper, but addressing these two questions deserves a fuller debate in a future paper.

[49] Nagel, 66 with original emphasis.

[50] For different views on war and jus in bello in particular, Cf. Malham M. Wakin, ed., War, Morality, and the Military Profession, (Boulder, CO: Westview Press, 1979), R.M. Hare, “Rules of War and Moral Reasoning,” in Philosophy and Public Affairs (Winter 1972): 166-181, and as I discussed earlier, Brandt’s “Utilitarianism and the Rules of War.”

I would like to thank Alastair Norcross, David Boonin, Adjume Wingo, Bernhard Koch, Jen Kling, Duncan Purves, and David Hysom for their comments. Any errors remaining are my own.