International Symposium
for Military Ethics 2009
Please do not cite or quote
Pablo Kalmanovitz
PhD Candidate, Political Science
Columbia University
pk2115@columbia.edu
Phone: 347 523 1037
Deep tensions between morality and
legality in the theories of just war have been with us since the early times of
modern just war thinking. These tensions are, in a sense, Grotius’s legacy.
Prior to Grotius, it was mainly the scholastic defenders of natural law who
undertook normative work on war, and for them conflicts between positive law
and morality, if they appeared at all, were resolved in favor of the latter.
Some of Grotius’s fundamental and novel ideas, in particular the idea that
rulers’ consent was decisive in determining the content of the law of nations,
did not fit well into the scholastic rationalistic and hierarchical model of
law and political order. But even though Grotius defended novel and indeed
revolutionary ideas about international law and war, he also endorsed the very
influential ideas about just war that he inherited from the scholastics. I
submit that this dual stance led Grotius to produce two different normative
models of war, the first, which I will call the just war model (for short: “just model”), derives criteria of
justice from natural law; the other, which I will call the regular war model (for short: “regular model”), obtains criteria of
lawfulness from the law of nations.[1]
In this paper I want to look closely at these models and their tensions, and
discuss some of their consequences. As I hope my discussion will show, some of
these tensions appear in contemporary discussions of war and justice.
The
paper is organized as follows. Outlines of the just and regular models appear
in Sections 1 and 2 respectively. To anticipate my outline, according to the
just model a violation of some
particular right is the only justification to wage war, and the aim of the war
is to make good for that violation; in just wars the status of a war is
established on the basis of ex ante
substantive justice, and the belligerent parties are asymmetrically placed: one
is in the right, the other in the wrong. The regular model, in contrast, makes
due form and not substance the central criterion when it comes to establishing
the status of a war: wars duly declared and duly fought are lawful; the
belligerent sides are placed symmetrically, their status as lawful combatants
being independent from the justice of their cause; here the question whether
the cause of the war is substantively just is bracketed and replaced by purely
formal ––and more easily established–– criteria. Section 3 will examine the
tensions between the two models; most obviously, tensions between the models
arise because both justice and lawfulness are held as morally positive
statuses, and yet in some cases a lawful war may be unjust, or a just war
unlawful. My particular focus will be on arguments that show the superiority of
the regular model over the just model.
1.
The just war model
Historians of ideas have often pointed
out to Grotius’s large debt to the so-called second scholastic.[2]
This debt is clear indeed in the case of the just model, although, as we shall
see, things stand quite differently regarding the regular model. In the
following presentation of the just model I will rely on this hisotriographic
observation and bring in elements from Vitoria’s and Suarez’s writings on war.
I will bracket the differences between Grotius, Suarez and Vitoria, significant
and important as they may be, so that we can have Vitoria and Suarez’s singular
clarity when presenting the basic structure of the just model.
The
central feature of the just model is that it conceives war first and foremost
as a judicial action, not as a political act.[3]
At the root of a just war there must be a violation of some right, and from
this violation the just cause for war arises: wars may be fought either
defensively against an impending or ongoing violation, or “offensively”, in
order to exact reparations for a violation suffered and/or to inflict
punishment to the violators (RWP, II.1.ii). It follows that preventive wars, or
wars for the sake of a balance of power, are ruled out by the just model (RWP,
II.1.xvii; II.22.v). Sovereign commonwealths are by default the standard war
wagers, but under some circumstances public authorities lesser than a sovereign
ruler and private persons are authorized to declare and fight wars. Thus, all
persons have a natural right to fight defensive wars for the sake of life and
property, but in so doing they must abide by criteria of necessity and
moderation. Defensive wars are necessary in the sense that they must take place
in reaction to an ongoing violation or an imminent and certain danger, which
make appeals to a superior authority impossible. The reaction to the danger
must be made “in the heat of the moment” (Vitoria, OLW 1.2, §5; Grotius, RWP
II.1.xvi) and the proper response to aggression is strictly limited by the
immediacy of the threat or injury, and so has to be “waged with a moderation of
defense that is blameless” (Suarez, OW i.6). Defensive wars include no
authorization to punish or seize back property, for that can be done properly only
through appeal to a legitimate judicial authority.
Offensive
wars involve powers and authorizations wider than those of defensive wars, and
are generally the privilege of the heads of legitimately constituted sovereign
commonwealths.[4]
Given the just model’s emphasis on judicial action, it is not surprising that
offensive, not defensive, wars are its paradigmatic case. The following passage
from Suarez lays out concisely the model’s basic architecture:
Just as within a commonwealth some
legitimate power to punish crimes is necessary to the preservation of domestic
peace; so in the world, in order that diverse commonwealths may dwell in peace,
there must exist some power for punishing injuries inflicted by one upon
another. Such a power is not to be found in any superior, for we assume that
these commonwealths have no commonly acknowledged superior; therefore, the
power in question must reside in the supreme prince of the injured
commonwealth, to whom, by reason of that injury, the opposing prince is made subject.
Consequently, war of this kind [offensive wars] has been instituted in place of
a tribunal administering just punishment. (OW iv.5)
So in the case of offensive wars it
is not necessary that an imminent and present danger exist. Wars may be fought
in response to violations made in a distant past and the purpose of the war is
to rectify them. A violation of right triggers the injured ruler’s jurisdiction
over the injuring party, and just as the domestic judicial system aims at
public order and the enforcement of rights, so offensive war-making powers aim
at a rightful international peace. Although in a limited sense functionally
similar to civil lawsuits, in the just model the injured sovereign acts as
party, judge and executioner of its own (alleged) rights, which makes the just
model structurally unstable.
There
are two important features of the just model that I would like to discuss. The
first is its emphasis on substantive rights, which stand at the center of its
doctrine of just causes of war, and the second is the asymmetric status it
confers on belligerent parties.
In
the just model, the set of rights whose violation could justify a war is in
principle open-ended, although limits are imposed by ad bellum criteria such as proportionality (a minor injury does not
merit war), necessity (war is the only way to prevent or remedy the violation)
and last resort (all alternatives have been exhausted).[5]
Above these second-order criteria, the crucial question is really for which
rights precisely would a violation justify war.[6]
Behind this question lies a profound challenge for the just model, for the
model assumes the existence of an agreed-upon basis of substantive rights,
while, in practice, disagreements among publicists regarding legal sources,
specific rights, and procedural rules were far from rare even during Grotius’s
times.[7]
One
may say plausibly that within the set of relevant rights the just model has an
undisputed core and a periphery of more contentious rights (and, it should be
noted, contentions over rights were often resolved through war). Indeed, some
of the rights proposed by Grotius had a strong backing consensus, and
eventually became part of the contemporary positive doctrine of human rights.
Thus, war may be fought in defense of the rights to life and to bodily
integrity (see e.g. RWP, II.1.iii), and also in defense of the right to
property and dominium (i.e. territorial integrity, RWP, II.1.xi). On the
latter, Vitoria made a crucial contribution in his lecture on the American Indians,
where he argued that, tied to the right to political sovereignty or dominion,
there is also a right to remedies in cases of wrongful takings, which involves
both punishment and compensation. Rights originating in an assumed “natural
partnership” of human beings, which are less familiar in contemporary
discourses of human rights, arguably belong also in the core. To this class
belongs the right to move freely on earth (ius
peregrinandi) and to enter relationships, in particular commercial
relations, with other human beings (Vitoria, OAI 3.1; Suarez, OW v.2). One may
include here also the right to defend the innocent, for example those under
subjection of a tyrant (Suarez OW v.2; Grotius, RWP II.20.xl), which is an
early version of something like a right of humanitarian intervention.
The
periphery of contention shows clearly how the role of substantive rights in the
just model makes its practice highly demanding institutionally. If wars are
fought in pursuit of certain rights, then clearly those rights need to be
stipulated as clearly and exhaustively as possible, which means that some form
of legislative organ is presupposed or required by the model. At Grotius’s
time, the grip of natural law ––and the widespread “seriousness of religious
convictions”[8]––
was perhaps strong enough to support a belief
that the light of reason would be sufficient to produce a consensus over the
catalogue of rights. Nonetheless, a cursory look at some of the rights defended
by different theorists of the time shows that particular political agendas
drove to an important extent the arguments made; controversies and
disagreements are proof that religious faith and the light of reason were not
reliable enough to guide armies disinterestedly. Vitoria, for example, defended
a right to appropriate things that had not been appropriated before and which,
he held, belong in common to mankind, for example “gold in the ground or pearls
in the sea.” This right was supposed to make war permissible in response to
denials of access to unexploited mines or to pearl banks (OAI, 3.1, p. 280).
Vitoria was of course considering the question whether the Spanish exploitation
of minerals in the Americas was justified, and responding affirmatively, but it
did not take long for a rebuttal to appear (could then French miners be sent to
Spain to exploit their unproductive mines?)[9]
As
dissenting voices of the time such as Alberico Gentili’s forcefully pointed
out, the catalogue of rights at the basis of the just model was itself a matter
of dispute, and hence making it hold the main weight of the model was an
unhappy move. Moreover, some disputes over rights were in effect resolved by
recourse to war (rights of monopolistic commerce, for example), and so in these
cases the outcome of the war seemed to dictate in practice the justice of its
cause, which is about the inverse situation to what the just model proposed. As
we shall see, a considerable advantage of the regular model over the just model
is that, by giving up the pivotal role of violations of substantive rights, it
sidesteps upfront these questions of legislation and adjudication.
The
second important feature of the just model is that, by giving injuries a
pivotal role, it confers asymmetrical status to the warring parties, and in so
doing gives derivate status to, and tends to undermine the effect of, jus in bello considerations. Grotius
held that the injuring side in a war had no right to defense when he is
attacked in a just war; just as domestically a criminal may not resist the
police with force, fighting back in a just war would only add to the injuring
side’s record of wrongs (RWP II.1.xviii; III.10.iii). Clearly, giving to the
unjust side the same titles and protections that the just side has in a war
goes against the grain of the model. On the just side, actions that would
advance the cause justifying the war are permissible (RWP III.1.ii), which is
to say that under the just model necessity
is the driving criteria of jus in bello.
On the unjust side, as merely fighting in the war was deemed wrong, there was
no space for discriminating between allowed and forbidden ways of fighting.
Under
the just model, in bello considerations
are derivative from ad bellum considerations,
as Suarez precisely showed. In Suarez’s discussion of the proper modes of
conducting war, criteria for establishing immunity from being killed in (and
after) war are based on complicity in effecting the injury in question. He held
that, aside from children, women, persons unable to bear arms, and other few
customary immunities, all those who “shared in the crime” that justified the
war could be killed in and after war, regardless of whether they were in fact
bearing arms (OW vii.15; in some cases, then, civilians could be fair targets
in war). Vitoria’s lengthy discussion of excuses for fighting in an unjust side
is more nuanced than Suarez’s, but follows a similar spirit. As is well known,
the closer he got to granting symmetrical status to belligerents is in cases of
doubt in good faith about the justice of a cause, and in cases of what he
called “invincible error” (which is close to the legal defense of unavoidable
mistake; OLW 2.4). For Vitoria, like for Suarez, blame is the basis of
liability to military attack, and it is connected to the cause that justified
the war; only in cases of unavoidable mistake or legitimate doubt can there be
room for granting any sort of equal status to the warring sides.
Vitoria’s
cautionary caveats notwithstanding, the emphasis on jus ad bellum at the expense of jus
in bello came at the cost of depriving the just model of mechanisms that
would proscribe ruthlessness in the conduct of hostilities; the righteousness
of one of the belligerent sides could easily be taken to justify licenses for
the commission of atrocities, if instrumental for pursuing the just cause.[10]
This consideration is, as we know, at the center of the defense of Walzer’s
well-known “independence thesis,” and was also present in defenses of the
regular war model.
2. The Regular War Model
In
contrast to the just model, the regular model gives a pivotal role to formal
declarations of war made by a legitimate sovereign ruler (RWP I.iii.4). A
declaration need not list the reasons why war is waged ––i.e. the substantive
injury that motivates the war––, for its validity depends only on the status of
its source (III.iii.5-11).[11]
So, in contrast to the just war model, the regular model is agnostic in regard
to substantive rights, the violation of which could be offered as a
justification for war. Instead of substance, the model makes the formal
expression of a sovereign will an unquestionable, necessary condition for a
war’s lawfulness. War-making is a prerogative of a sovereign state that may be
exercised only by its sovereign ruler.
We have seen that one important
consequence of the just war model’s emphasis on substantive justice is that the
injured side appears as righteous and morally superior to the injurer side, who
in virtue of its violation gives up protections and rights that it would
otherwise enjoy. The regular war model effectively equalizes the warring
parties by abandoning the idea of substantive injury and embraces instead the
principle of sovereign equality (this principle is sometimes equivocally
expressed in the formula “war is just on both sides”, e.g. by Vattel, LN, III.xii
§190). The belligerent sides stand symmetrically, as equal moral agents
pursuing their differences through war. This implies that any sort of (in bello or post bellum) permission or liability held valid for one side is eo ipso valid for the other. In
Christian Wolff’s apt formula, the permissions and protections awarded to the
just side in the just war model become in the regular model the common
protections and permission of the belligerent parties, so that “the law of
nations allows nothing except that which is allowable by the law of nature to a
just belligerent” (IG §890; cf. Vattel LN III.viii §137).[12]
If the best image to summarize the just war model’s conception of war is a
trial involving a judge/prosecutor and a criminal, a suitable image for the
regular model is a duel in which two sides “agree” to solve their dispute
through force ––or, to use Pufendorf’s phrase, the disputants resort to “the
dice of Mars” for an adjudication of their conflict.[13]
The regular model’s state-centered
conception of war has several wide-ranging implications, of which I would like
to highlight two. First, the overall emphasis on procedure and the equal
standing of belligerent parties shifts the model’s central normative focus away
from the substantive justice of the cause and into the regulation of the conduct of warfare. As Vattel put it,
“we can only arrive at such rules [of warfare conduct] by considering acts of
hostilities in the abstract and in their
essential character”, that is, without reference to the overall justice
that motivates them. Acts forbidden, Vattel continues, are “essentially unlawful and obnoxious, such
as poisoning, assassination, treason, the massacre of an enemy who has
surrendered and from whom there is nothing to fear” (The Law of Nations, III.ix §173, emphases added). In the case of
the principle of military necessity, the only relevant consideration when it
comes to assessing the necessity of a military action is its contribution to
tactical progress narrowly conceived, not its contribution to an overarching
just cause. Whatever permissions or proscriptions are said to govern the
conduct of warfare, they apply, in virtue of the belligerents’ symmetry,
equally to both sides.
Second, and again in contrast to the
just war model, the regular model has virtually no place for civil wars. As the
status of sovereignty is a necessary condition of admissibility, civil wars are
seen rather as cases of domestic crime writ large. The only case of civil war
that could enter the purview of the model is that of (what initially appears to
be) a group of bandits which has such mobilizing power that it gains firm de facto control over a piece land (RWP III.iii.3).[14]
If a civil war does not take this internationalized form, the model consigns
whatever issues the conflict is about to civil courts and municipal law (cf.
Vattel LN II.iv, §56; III.xviii §293.)
3.
In defense of the regular model
In
this Section I would like to present and assess the strongest normative case
for the regular model. As we shall see, the core of the defense is that, given
the structure of international society, the regular model is the best workable
normative framework for the regulation of warfare among equal sovereign states.
The best institutional model of conflict resolution and rights adjudication may
well be a domestic court of law presided by an impartial judge applying
pre-enacted law. We have seen that the just model seeks to mimic this ideal and
responds to the absence of an international court of law by introducing a
system of self-help, in which a sovereign ruler acts as party, judge and
prosecutor in the pursuit of his violated rights. In analogy to the domestic
ideal, wars are conceived as quasi-juridical acts of rights enforcement, and indeed
as second-best versions of the domestic model. The regular model gives up
altogether the analogy of the domestic case and rather takes what might be
described as a third-best track. Instead of a system of self-help, it defends a
procedure of conflict resolution and adjudication ––not justice enforcement––
through war. The closer the regular model comes to making war a pure adjudication procedure, that is,
the more war is bracketed and carried
on as a limited duel among professional warriors (by, e g., isolating civilian
lives and property, limiting warfare to a contest between legitimate armies,
etc), the more it realizes its core aim.
Before
considering the model’s justification, the nature of this justification should
be defined clearly. At the beginning of his presentation of the regular model,
Grotius distinguishes two concepts of permission. An act is morally permissible if it is free of
moral reproach, or “right from every point of view”, and it is legally permissible if the law does not
penalize it (III.iv.2). So an act may be morally impermissible and nonetheless
carry no legal liabilities. If we assume that a wrongful act must (morally) be
met retributively, then we may say that when the law contemplates no punishment
against a wrongdoer it grants an impunity
that stands in need of justification. Permissions in the regular model, Grotius
tells us, belong precisely to this kind: they are impunities granted to morally
wrong acts. The regular model does not purport to defend the morality of the acts
it permits; Grotius states this very clearly in the famous passage that
prefaces the temperamenta belli.[15]
The true object of the model’s defense is the legal impunity given to such
immoral acts. The model, in other words, purports to justify a system of legal rules, not particular
actions. (It follows from this, in particular, that in taking up the burden of
defending the legal impunities, Grotius cannot see them as a sheer fact of international politics, which
is, I think, how Hedley Bull has read him.[16])
A brief contrast with Hobbes’s well
known discussion of obligations from the law of nature may help to bring out
what is distinctive of the Grotian approach. The laws of nature, Hobbes tells
us, always oblige in foro interno,
that is, they bind in conscience “to a desire that they should take place” (Leviathan I.xv.36). Natural laws,
however, do not always bind us in foro
externo, or in the actuality of our interaction with others, because,
lacking the proper external assurances, if we unilaterally abide by them, we
would foolishly expose ourselves to preying instead of securing our livelihood
and peace (Leviathan I.xiv.5). But if
for Hobbes the laws of nature ––and indeed all legality–– are externally
suspended pending the institution of an overwhelming enforcer, for Grotius
there is an area of law that remains binding in foro externo at the international level, notwithstanding the
lack of an overarching enforcer (let me call this area, with Wolff and Vattel,
the “external law of nations”). There are for Grotius also other areas of normativity that ar binding
only in foro interno, but these, I
think, should be seen as belonging in the order of personal morality and not as
making reference to any potential or aspirational international legal order.[17]
Moreover, among the externally binding laws of nations, some are valid in foro interno and some are not: the
just side, and only the just side, may (morally) enjoy the permissions that
apply in regular warfare, but a slave is not obliged in foro interno to obey his master, although he can (legally) be
compelled in foro externo.[18]
A defense of the regular model takes
the form of a defense of the external law of nations. There are at least two
elements in this defense. The first addresses the fact that the law permits
seriously immoral acts, and the second addresses doubts regarding the law’s
efficacy. The latter doubt, more precisely, is not so much that the external
laws have no teeth but rather that they follow power dynamics too closely ––the
worry, put differently, is not that the normative bite of these laws may be
ineffective but rather that they have no real normative bite.[19]
That the external laws have some
normative bite can be readily seen. The laws aim to regulate inter-state
relations regarding, e.g., territorial rights, property rights, rights of
neutrality, and the right to make alliances. Cases pertaining to all these
rights may eventually land before a domestic court of law, and hence be subject
to state coercion.[20]
To take two crucial examples: the status of neutrality confers certain rights
and imposes certain obligations on a neutral party (e.g. duty to treat both
sides impartially, in particular to allow ongoing commerce with both; right to
remain free from attack, in particular to be allowed to continue relationships
with both sides). There are breaches by which the status of neutrality may be
lost, which may carry as a consequence the need to undertake reprisals, even
military action. (Why belligerent
states would respect neutrality is a different question, to which I believe
some answers may be found in Grotius.[21])
The second example, to be discussed at more length at the end, is respect for
the territorial boundaries as defined at the end of a war. The regular model,
in contrast to the just model, encourages states to respect the “verdict of
Mars” and give up the pretension to make justice the criterion on which respect
for boundaries is based.
Cases of the law condoning moral
wrongs are of course not absent in domestic contexts either. The enactment of a
statute of limitations is an obvious example ––even assuming that irrefutable
evidence of wrongfulness becomes available, if it is found beyond the duly set
period, the legal system precludes further action––, and criminal justice can
furnish a number of additional illustrations.[22]
If we grant that an accurate reflection of inter-personal morality is not the
only aim of a domestic legal system, then we should be able to see why a
mismatch between law and morality may sometimes be justified. I believe that
Grotius saw clearly and correctly that international law would have to depart
even more than domestic law from inter-personal morality’s principles and
intuitions.[23]
But, as in the domestic case, the only reason that could justify this departure
is that it contributes to preserve other important values. I think this is
indeed the sort of argument that Grotius would like to make in defense of the
regular model, and a central value that the model aims to preserve, as we shall
see presently, is the stability of the international order, or the bracketing
and limitation of conflict.
I submit that the regular model,
unlike the just model, seeks to provide a plausible basis for a stable
normative equilibrium, in the sense that all parties can be plausibly seen as
having an interest in upholding the external laws. In order to establish this,
we need of course to make some assumptions about what the parties’ interests
are, and most certainly we need to include such interests as claiming and
preserving the status of neutrality, freely making alliances, carrying
international trade, and generally limiting and moderating warfare. Given its
importance, it is worth emphasizing that this equilibrium must be
self-sustaining because there is no superior, centralized adjudication and
enforcement mechanism. Now, consider the following key passage from Grotius:
The
reason why such effects [of regular warfare] met with the approval of nations
was this. To undertake to decide the justice of a war between two peoples had
been dangerous for other peoples, who were on this account involved in a
foreign war. Furthermore, even in a lawful war, from external indications it
can hardly be adequately known what is the just limit of self-defense, of
recovering what is one’s own, or of inflicting punishments; in consequence, it
has seemed altogether preferable to leave decisions in regard to such matters
to the scruples of the belligerents rather than to have recourse to the
judgment of others… (III.iv.4)[24]
It
is clear that this passage does not simply state an existing convention ––as
several of Grotius’s followers have observed, it is not clear that there was indeed such convention–– but rather
introduces an argument in defense of the regular model (cf. Barbeyrac, p. 1275
[Tuck]). There are two different yet connected lines of argument involved: one
is the epistemic line that observes how difficult it is to make accurate
judgments for the class of disputes that typically escalate to war, and
commends, accordingly, epistemic
abstinence. The other argument takes a consequentialist line and holds that
the practice of epistemic abstinence will limit the quantity (numbers and
extension) of conflicts. By ‘judgment’ Grotius means statements that apply
mainly to jus ab bellum
considerations ––the reference in the
quote to the “just limits of self-defense”, reparations, and punishment exhaust
the types of causes for which wars could be fought justly according to
(Grotius’s version of) the just model, see RWP
II.i.2–– and that carry legal and material implications, such as not
recognizing a state’s claim of jurisdiction over a particular territory, or its
claims of ownership over particular goods.
It is remarkable that Grotius did
not opt for the simple “equal sovereignty” defense, according to which states
should not judge other states’ affairs because they have no authority to do so
(cf. Vattel LN Preliminaries §15-16), and said instead that they were not
epistemically qualified to judge. The reason is, I think, that he wants to make
a dual and stronger appeal, both to the awareness that, indeed, conflicts and
wars are highly demanding epistemically, and to reciprocity, in the sense of
positing an interest in being left (and leaving) alone when it comes to judging
about one’s best interest. The weakness of Grotius’s appeal is those cases in
which injustice is blatant, the existence of which, as I said earlier, Grotius
himself was ready to recognize. But if we give enough credit to the plausible
assumption that such clear cases are exceptional in international affairs, and
we share Grotius’s interest in thinking about general guiding rules for state
interaction, then we can begin to empathize with the basic motivation of the
regular model.
Grotius’s move may be seen as a choice
of sides, on consequentialist grounds, in the trade-off between allowing for
across-the-board judgments (as does the just model, which even prescribes third
party interventions in cases of injustice) and epistemic abstinence; this
trade-off reflects a more basic trade-off between two fundamental values:
justice, in the classic sense of giving each his due, and peace, in the sense
of minimizing the use of violence in social interactions. The regular model
responds to Grotius’s intuition that, in international affairs, justice is too
high an aspiration, and that it is consequently better to think about a system
of rules that could minimize the uses of violence, even if in some (or most)
cases this means giving up ideal justice.
The
premises of the Grotian argument for the regular model need to be unpacked
clearly. A central premise is that, in general, there will be reasonable
disagreements in international disputes. And as reasonable yet conflicting
positions relative to a dispute can coexist, it is unwise to allow
position-holders the use force on behalf of their particular stance. In
contrast to the just model, which posits the existence of an underlying truth
of the matter in all disputes and authorizes the use of force to any sovereign
ruler who holds it, the regular model gives up the aspiration to access truths
of the matter ––if not the assumption of their existence––, and along with that
limits the authorization to use force to the parties directly involved. As a
consequence of this metaphysical shift, the model’s orientation moves to give a
central role to the consideration of which system of rules could indeed guide
behavior effectively in an anarchical context. If we assume that justice is too
demanding epistemically to have such guiding role, then it becomes necessary to
rethink the import of justice imperatives in state interactions; this is
precisely what Grotius’s construction of external justice is meant to do.
But
on what basis could one expect the regular model to be stable and indeed
conducive to peace? A few general things may be said in response, but a fully
adequate answer has to take into account each particular element in the model.
Generally speaking, the regular model assumes that parties are sufficiently moved
by their long-term self-interest, one posits that it is in their interest to
have a peaceful and social coexistence; this interest would go some way in
motivating respect to the limits of warfare and avoidance of total war.
Similarly, states have an interest in staying away from conflict unless it
affects other vital interests, and hence will claim and support the status of
neutrality.
These
observations are admittedly superficial, so I would like to conclude by
considering with some more care the case of respect for territorial rights
allocated through war. Nations, Grotius wrote, “have decided that the property
of enemies should stand to enemies in the same relation as ownerless property”
(III.vi.8). According to Grotius’s general theory of property, the first taker
of an ownerless object acquired a rightful title to it by the mere act of
taking possession (II.ii.2.5).[25]
By holding that in war the belligerent parties may treat all involved property
(that is, all property belonging to the enemy’s subjects) as res nullius, Grotius implied that war
takings were the source of rightful ownership.[26]
The far-reaching implications of this “nullification proviso”, as it may be
called, can be seen clearly if we compare the regular and the just models on
their post-war allocations of goods. As part of its asymmetric treatment of
enemies, the just war model gave only the just side a right to appropriate
goods in the aftermath of war. When doing so, the just side had to abide by a
proportionality principle, which holds that a just winner could only take as
much from the loser as would repair the injury that caused the war, and
possibly also to cover war costs. In the regular model, an important
implication of the nullification provision is that both sides can rightfully appropriate, and also that there is no
principle of proportionality limiting the size of takings ––Grotius tells us
explicitly that, regardless of which belligerent does it, appropriation in a
lawful war is “without limit or restriction” (RWP, III.vi.2.1).
The particular scope and structure
of the nullification proviso in regard to property follows directly from a
central justification of the regular model. If third parties were to inquire
into the just pedigree of goods acquired in war or its aftermath, they would
be, in Grotius’s words, “involved in war against their will” (III.x.5.1), for
they would thereby be forced to take a stance on conflictive issues.
Nullification is therefore motivated by containment and commercial expediency:
in the case of movables, tying the legitimacy of exchanges to the goods’
pedigree would be a recipe for renewing or spreading conflict. In the case of
inmovables, not recognizing a state’s de
facto possession of a territory amounts to challenging its territorial
claims, and hence, likewise, to renewed conflict. The model submits, in sum,
that wherever things fall after a war, that is where they should stand. The
reason why this element of the model may be taken to be part of an equilibrium
of state interests is a posited interest in commercial activity plus an
interest in having clearly set jurisdictional and property boundaries.
Lingering doubts and unresolved claims relative to territorial rights would
upset a global system of commerce that, Grotius plausibly assumed, all states
would find in their best interest to uphold and protect.
NOTES
[1]
This terminology follows Peter Haggenmacher definition of two historical
“paradigms” of just war theorizing Peter Haggenmacher, 'Mutations Du Concept De
Guerre Juste De Grotius À Kant', Cahiers
de philosophie politique et juridique 10 (1986), ———, 'Just War and Regular
War in Sixteenth Century Spanish Doctrine', International
Review of the Red Cross 290 (1992); see also Gregory Reichberg, 'Just War
and Regular War: Competing Paradigms', in Just
and Unjust Warriors: Moral Equality on the Battlefield, ed. David Rodin and
Henry Shue (Oxford University Press, 2008).
[2]
There is wide consensus among historians of political thought and international
law about the large indebtedness of Grotius to the scholastics, in particular
to Vitoria and Suarez. See for example Peter Haggenmacher, 'Droits Subjectifs
Et Système Juridique Chez Grotius', in Politique,
Droit Et Théologie Chez Bodin, Grotius Et Hobbes, ed. Luc Foisneau (Paris:
Kimé, 1997), 117, Brian Tierney, The Idea
of Natural Rights : Studies on Natural Rights, Natural Law, and Church Law,
1150-1625, Emory University Studies in Law and Religion No. 5 (Atlanta,
Ga.: Scholars Press, 1997), 289, 320-324, Wilhelm Georg Grewe, The Epochs of International Law (Berlin
; New York: Walter de Gruyter, 2000), 24, 191-195. Quentin Skinner, The Foundations of Modern Political Thought
(Cambridge ; New York: Cambridge University Press, 1978), 154. For a dissenting
view and qualifications see Richard Tuck, 'Grotius, Carneades and Hobbes', Grotiana n.s. 4 (1983), ———, Philosophy and Government, 1572-1651,
Ideas in Context (Cambridge England ; New York, NY: Cambridge University Press,
1993), 169-179..
[3]
In Grotius’s words, “It is evident that the sources from which wars arise are
as numerous as those from which lawsuits spring; for where judicial settlement
fails, war begins.” (RWP, I.1.ii). “RWP” stands
for Grotius’s Rights of War and Peace.
Unless otherwise noted, I will use Kelsey’s translation, in the 1925 Carnegie
Endowment Edition.
[4]
For Vitoria and Suarez, and of course not for Groitus, ecclesiastical
authorities could also wage offensive wars. According to Grotius, private
persons in the open sea may wage offensive wars.
[5]
According to Vitoria and Suarez, for example, violations of natural law such as
adultery, sodomy or cannibalism are not grounds for war-making because they are
not politically serious enough, and
also because were they made such grounds, wars would multiply and too much
instability would follow (Vitoria, OAI 2.5; Suarez, OW v.1).
[6]
This issue, which was already central in early modern debates among theorists
of just war, has re-emerged in contemporary discussions of jus ad bellum and human rights. Which violations of human rights
can we deem to be so serious that a military humanitarian intervention would be
a justified response? In particular, should the alleged human right to
democracy be put in the list, as some have argued? See Thomas Franck,
'Legitimacy and the Democratic Entitlement', in Democratic Governance and International Law, ed. Gregory H. Fox and
Brad R. Roth (Cambridge: Cambridge University Press, 2000).
[7]
In Tuck’s reading of Grotius, one of the central motivations of RWP was
precisely to carve out a thin set of unquestionable rights, in a way that would
sidestep disagreement and, tied to it, skepticism about universals.
[8]
Grewe, The Epochs of International Law,
287.
[9] Likewise, there is what may be
called purely Christian rights. Vitoria defended the right to preach and
announce the Gospel (ius predicandi)
“even against the will” of the audience (OAI 3.2; likewise Suarez, OW v.8).
These rights were for Vitoria the best justification for the so-called wars against
the American Indians. Grotius did not defend the rights of missionaries but did
defend a right “to preach or profess Christianity” (RWP II.xx.44).
[10]
See Stephen C. Neff, War and the Law of
Nations : A General History (Cambridge ; New York: Cambridge University
Press, 2005), 112-119.
[11]
Grotius says that in some cases a declaration of war may be “conditional” (i.e.
a threat), which is in a sense reason giving (e.g. “You owe me P. Restore P or else I will wage war upon you”). But he goes on to make clear
that declarations of war could also be unilateral and absolute (“I bear witness
that this people is unjust, and does not give satisfaction” (III.iii.7.2),
hence I wage war against it). Wolff says that it is desirable that war
declarations state reasons, but they should certainly avoid the expression of
passions such as hatred or vindictiveness (Ius
Gentium §742).
[12]
Strictly speaking, here Wolff runs against Grotius, in whose formulation of the
regular model all limitations on the practice of warfare effectively disappear
(he said, for example, that regular belligerents may indiscriminately kill all
members of the enemy community, including infants and women, see III.iv.9.) As
the just war model derives privileges and immunities from jus ad bellum, it seems that for Grotius the elimination of
considerations of just cause implied necessarily the elimination of all limits
on warfare. There is, however, no logical necessity here, and Wolff held indeed
that Grotius’s in bello permissions
were at best purely customary, but an evil custom that should be terminated. On
this regards, my reconstruction of the regular model takes distance from
Grotius and sticks to Wolff’s (and Vattel’s) formula. On the construction of
the jus in bello doctrine for regular
wars, see Haggenmacher, 'Mutations Du Concept De Guerre Juste De Grotius À
Kant', 117-122.
[13]
Pufendorf, De Jure Naturae V.ix.3,
cited in Neff, War and the Law of Nations
: A General History, 157. The idea of war as contract, however, has
limitations. The contract would run along the lines of: “We hereby agree to
solve our disagreement on issue X by
means of war; the winner will dispose of the issue as he sees fit.” The regular
model, however, admits wars declared unilaterally and contains no explicit
requirement of an ex ante agreement.
Grotius was opposed to the idea of war as contract on the grounds that, when
justice is ex ante clear, it would be
absurd to regard the outcome of the clash of forces as decisive about justice
(III.x.5.1). Pufendorf did endorse the idea of a hypothetical war contract, but this leads to the rather
preposterous consequence of, e.g., seeing cases in which a mighty aggressor
crushes a weak neighbor as a fulfillment of contract (precisely the sort of
case that made Grotius resist the image of contract). For the history of this
idea of wars as duels, see Haggenmacher, 'Mutations Du Concept De Guerre Juste
De Grotius À Kant', 122-124.
[14]
Grotius cites Augustine, City of God,
IV.iv, where he writes: “If by accessions of desperate men this evil grows to
such proportions that it holds lands, establishes fixed settlements, seizes
upon states and subjugates peoples, it assumes the name of kingdom.”
[15]
Where Grotius writes, “I must retrace my steps, and must deprive those who wage
war of nearly all the privileges which I seemed to grant, yet did not grant to
them. For when I set out to explain this part of the law of nations I bore
witness that many things are said to be ‘lawful’ or ‘permissible’ for the
reason that they are done with impunity, in part also because coercive
tribunals lend to them their authority; things which, nevertheless, either
deviate from the rule of right (whether this has its basis in law strictly
so-called, or in the admonition of other virtues), or at any rate may be
omitted on higher grounds and with greater praise among good men” (III.x.1.1).
[16]
Hedley Bull, 'The Grotian Conception of International Society', in Hedley Bull on International Politics,
ed. Kai Anderson (New York: Palgrave Publishers, 2000), 103.
[17]
Consider, for example, Grotius’s emphasis on charity as a necessary supplement to strict justice
(III.xiii.4.1). Throughout RWP,
Grotius tends to dissociate nouns such as humanitas,
caritas, bonitas, pudor, modestia, honestum, and pietas from iustitia;
see Peter Haggenmacher, Grotius Et La
Doctrine De La Guerre Juste, Publications De L'institut Universitaire De
Hautes Études Internationales, Genève (Paris: Presses universitaires de France,
1983), 583. Strict justice is the business of courts of law, whereas charity,
humanity, generosity, honesty etc, are the business of one’s conscience, and
God.
[18]
Grotius’s discussion of slavery is not logically tight, however. He says, on
the one hand, that it is lawful for a slave to attempt to escape (III.vii.6),
but on the other that the slave must always obey his master (III.vii.7). There
is in general a constant ambivalence in Grotius’s treatment of actions that are
illegal but morally right.
[19]
In Rousseau’s well known words, “But what is a right that perishes when force
ceases? If one has to obey by force, one need not obey by duty, and if one is
no longer forced to obey, one is no longer obliged to do so. Clearly, then,
this word “right” adds nothing to force; it means nothing at all here” (SC I.iii.2).
[20]
As Grotius writes elsewhere, “in this Question of the interpreting Agreements,
we do not enquire what is most commendable, nor what Piety or Religion demands,
but what every one may be forced to do; in a Word what is merely of external
Right, as we call it in Opposition to the Duty of Conscience.” (III.xx.25)
[21]
For a brief historical account of the difficulties involved in the protection
and defense of the status of neutrality, see Grewe, The Epochs of International Law, 384-389.
[22]
For a classic discussion, see John L. Austin, 'A Plea for Excuses', Proceedings of the Aristotelian Society
LVII (1956).
[23]
And so I think that, although a righteous Rousseau could write that, in
Grotius, “the most frequent mode of argument is always to establish right by
fact” (SC I.ii.4), it is nonetheless
well worth considering the sort of balance Grotius was trying to strike between
international politics and law.
[24]
Cf. Vattel: “How could it be determined accurately just how far it was
necessary on a given occasion to carry hostilities in order to bring about the
successful termination of the war? And even though this may be determined,
Nations recognize no common judge, and each decides as to what conduct its
duties require of it. Open the door to continual accusations of excesses in the
conduct of war, and you will only multiply complaints and embitter more and
more the minds of the belligerents; fresh injuries will be continually arising,
and the war will not cease until one or the other of the parties be destroyed.
Hence, as between Nation and Nation, we must lay down general rules,
independent of circumstances and of certain and easy application.” (LN III.ix §173)
[25]
This principle of first possession can be found in Gaius’s Institutes, a second century A.D. source of Roman Law. For an insightful
discussion and “qualified defense” of the principle, which illustrates its role
in contemporary American common law, see Richard Epstein, 'Possession as the
Root of Title', Georgia Law Review 13
(1979).
[26] This nullification, however, has a structure particular to wars; the goods it covers are not strictly speaking res nullius because the suspension of titles applies only to the belligerent parties. Third parties could not take war property at will but rather had to treat their belligerent de facto possessors as rightful owners.