Pragmatism and Preemption:

Why Just War Theory Isn’t the Law, But It’s Still a Good Idea

Presented to the Joint Services Conference on Professional Ethics, 27-28 January 2005

By Adam Weinstein, Department of English, North Broward Preparatory School

Abstract

One perpetual problem with just war theories is the abuse of their most critical terms as rationalizations for every color of action in the spectrum of human behavior. Nowhere is this more evident than in the doctrine of preemptive action; Hitler, Stalin, and Milosevic, among others, have all used the familiar moral rhetoric of “self-defense” in different ways to undertake “preemptive” actions against perceived enemies -- actions that are generally seen today as unjust. If the language of virtue in just war theory is so malleable that it can be used to cover any vice, is it really of any use to us at all?

The answer is a qualified yes. If we take the primary goal of a just war theory to be usefulness in normalizing behavior among nations (rather than correspondence to a true or universal moral code), then just war theories in general are possible - but only in a historically contingent sense. I suggest a form for such a theory, based upon pragmatist “foundations”. Philosophical pragmatists are primarily concerned with the usefulness (as opposed to the objective truth) of moral propositions, and they will naturally look toward popular global consensus – its basis, its composition, and the prospects for directing it - as a key criterion for the usefulness of a war convention. Consequently, preemption - and virtually any other type of combat seen today - can be seen as legitimate, if the threat it addresses is widely and strongly perceived to exist and if the response is considered proportional to the threat.

I. In his classic, Just and Unjust Wars, Michael Walzer (1977, 226) recounts an anecdote about an ancient Chinese general named Duke Hsiang. The Duke was preparing his army for combat against a superior force from the rival province of Chu. As he chose his terrain, assembled the troops, and made his battle plan, the Duke’s attention was drawn to one of his field officers, who pointed out that the enemy’s advance was stalled as it forded a river between the armies. “Let us attack them now,” exhorted the officer, “as they slough through the water, and we can secure a decisive victory at little or no expense.” But the Duke demurred, replying, “A gentleman should never attack one who is unprepared.” Hsiang took his ensuing and predictable beating with all the gentility of a true man of honor. His efforts won him fame, not as a strategist, but as a cautionary tale for two and a half millennia’s worth of soldiers and statesmen on the perils of an excess of integrity. No less a successful warrior and politician than Mao Tse-Tung (1967, 166) stated it thusly: “We are not Duke Hsiang of Sung and have no use for his asinine ethics.”

President George W. Bush might not rush to embrace parallels between his political thought and that of the father of Chinese communism, but there are striking similarities in their policies on military preemption. In pressing for the invasion of Iraq, officials in the Bush administration argued that the United States’ national sovereignty and its very survival demanded that it act militarily to stave off the threat posed to it by a nuclear-equipped Saddam Hussein. They contended that the US must act as swiftly as possible, even if the international community could not be convinced of an imminent Iraqi threat or the value of military preemption. The struggle for security could not be left to ride on global deliberations, where evidence and debate might or might not generate a consensus on action against Iraq; international due process, if it delayed Saddam’s disarmament and displacement, would be just another case of “asinine ethics.” As the President’s National Security Advisor put it, “There will always be some uncertainty about how quickly he can acquire nuclear weapons, but we don’t want the smoking gun to be a mushroom cloud.”

In abandoning the niceties of diplomacy and deliberation, the Bush and Mao doctrines highlight, perhaps unconsciously, a serious weakness of just war theory: the bleak fact that justice is what states make of it. Ask a White House spokesperson, and you will probably hear that the war in Iraq is just, that the unique evil of Saddam’s reign made inaction the immoral choice. Ask a European, and you may be told that the Iraq invasion is an unjust war of aggression, attributable to the United States’ less noble interests. Ask government officials in India, Pakistan, Russia, Uzbekistan, or many other nations, and you might hear that America’s preemptive doctrines illustrate precisely why these states are justified in acting unilaterally to preserve life and liberty and stave off the bullies in their own neighborhoods.

Some observers might see progress in the fact that these peoples employ a common vocabulary of global morality and justice. But what is the point of moral rhetoric if its terms can be used and abused to allow or condemn virtually any act? One man’s terrorist is still another man’s freedom fighter, and one state’s just intervention is still another’s naked aggression. Just war theory, it seems nowadays, is less a rational tool for the moral evaluation of actions and more a catch-all rationalization for anything anyone seeks to do.

Central to this problem of justification is the fact that just war theorists have historically sought an indisputable metaphysical basis for the rightness and wrongness of the acts they address. From Augustine, Aquinas, and Grotius to Kant, Webster, and Wilson, these ambitious thinkers based their views of war upon the presumption of a timeless, objective morality -- whether it was provided by God, natural law, or right reason. Even recent liberal theorists place an undue faith in the power of reason or common sense to provide a shared moral code for all states and peoples. John Stuart Mill (1963, 377) sought “a definite and rational test” for “the justifiableness of intervening in the affairs of other countries.” Peter Singer (2004, 144) asserted that “it is our capacity to reason that is the universal solvent.” And Michael Walzer (1977, 107) based his war convention upon “the moral convictions of ordinary men and women,” presuming a baseline human conscience that has been more conspicuous in its absence than its abundance in the 20th and 21st centuries. Even if such a global conscience could be said to exist, at various times it was unmoved by horrors such as slavery, racism, and imperialism but was shocked by minority education, free speech, free religion, the heliocentric theory of the universe, and many other features of the modern world that we accept or tolerate.

The point is that, no matter which theorist we side with, no matter what basis we maintain as the real, true source of moral justification, we are inviting more controversies than we solve and alienating just as many parties as we satisfy. Yet most justice theorists respond that if we abandon this philosophical search for timeless truth, we will collapse into the Hobbesian state of “war of all against all,” a desperate situation of relativism and wanton violence in which states will do what they must to survive, justification be damned. As one philosopher states, “unless the modern experience is to dissolve in the light of the one irresistible, all-encompassing Good, our political future will be one ‘where ignorant armies clash by night’” (Larmore 1996, 151).

It is possible, however, that the choice between asinine ethics and amoral opportunism is a false dichotomy, a dramatization that results when just war theorists and political realists talk at or past each other. Between those two poles lies a gulf of theory and strategy that is largely unexplored. One fresh alternative is based upon the pragmatist tradition in American philosophy, which supposes that justice is possible, not as a turn towards some historically unchanging notion of truth, but as a turn towards an ever-shifting popular consensus. This consensus would have to be carved out of an ongoing dialogue, an argument that meets diverse cultures, faiths, beliefs, and prejudices on their own terms, without reference to an “objective” authority like reason or scripture.

A pragmatist approach to justification should not be such a shocking turn for statesmen and soldiers; other experts in persuasion - namely, commercial advertisers - have for decades assumed that “truth is irrelevant. What matters are the perceptions that exist in the mind,” no matter, one might add, how absurd, immoral, or offensive such perceptions may be to the seller. Instead of directly challenging a targeted population’s perceptions, states one marketer, the essence of successful product positioning is to accept those “perceptions as reality and then restructure those perceptions to create the position you desire” (Ries and Trout 2000, xx).

On this basis, it is possible to position political and moral norms like any other market product. Recent philosophical and legal pragmatists believe that personal and professional values, intuitions, opinions, and so-called common sense “can sometimes be educated by immersion in ‘the facts,’ if by ‘facts’ we mean the myriad lessons of our experiences and interactions with our social and natural environments” (Posner 2002, viii). Hence, by discarding notions of a distinction between justification and truth – indeed, by claiming that there is no truth, independent of what we generally accept as true -- we can achieve moral progress by concentrating on achieving better justificatory ability:

Better to deal with doubts about what we are saying, either by shoring up what we have previously said or by saying something different. The trouble with aiming at truth is that you would not know when you had reached truth, even if you had reached it. But you can aim at ever more justification, the assuagement of ever more doubt (Rorty 1999, 82).

On this view, pragmatism replaces a traditional aim of moral philosophy - the search for objectivity - with the slightly less formidable task of “getting as much intersubjective agreement as you can manage” (Rorty 1999, 15).

All this is well and good, but just what can a pragmatist say concretely about international affairs and war in particular? Implicit in the pragmatist experiment is the premise that, since no vocabulary is a true representation of nature, there is no single golden path to securing consensual justice. But, “even if there is no Way the World Is, even if there is no such thing as ‘the intrinsic nature of reality,’ there are still causal pressures. These pressures will be described in different way at different times and for different purposes, but they are pressures nonetheless” (Rorty 1999, 33). Given a particular account of our current historical circumstances and their attendant “causal pressures,” I favor a particular path to cooperation, one in which the onus is on the so-called “lone superpower” to affirm, honor, and encourage participation in a new war convention. In such a convention, preemption is permitted – but only if the world’s lone superpower agrees to assess threats and preemptive measures in novel ways.

II. From a pragmatist perspective, the paramount objective in constructing a global war convention is not to honor a universal notion of the Right or the Good, but to honor the long-term interests of one’s most vital community, the community which provides us with our notions of what is right and good: our nation. National security policy aims to keep this community and its interests safe from external threats by the most effective means available. For much of the past century, the greatest threat to national security was considered to be the possibility of war between superpowers or other nuclear nations; while this possibility still exists in limited form, the developed world is now convinced that its top security priority is to prevent a catastrophic terrorist attack similar to what occurred on September 11, 2001. Hence American security policy now focuses on limiting terrorists’ freedom to travel and plan operations, both by eliminating them and by controlling the geographical and philosophical ground they occupy.

Such objectives in a war on terror require us to work for an expansion of the “we”, as Richard Rorty calls it: the worldwide extension of the group of people who are more like us than threatening to us. The need to deny terrorists safe havens for their tactics and their ideologies obliges us to ensure that the world is peopled with decent societies that hold a nominal respect for our nation and its objectives.

There are multiple approaches to this task. The direct approach is to unapologetically claim our own moral sentiments to be unequaled and to press for their acceptance by a larger community through any means available, effectively moving to turn the globe into one immense sphere of American influence. This is the approach generally preferred by the current administration, and it is tempting to the soldier and statesman alike. Such a perspective begins from the realist political assumption that security from terrorists and rogue states is too precious to be entrusted to international governmental organizations such as the United Nations. The pragmatist sympathizes with this assumption; the UN is a ponderous, deliberative bureaucracy carved up into factions, each with its own moral and material interests, and the limits of its effectiveness are considerable. Better to entrust one’s security to one’s own armies and politicians. The terrorist threat, however, is unique in the challenges it poses to national security, particularly in its talents for concealment and secrecy. Any state or territory that is an “x factor” in terms of its dedication to American values is a potential haven for the enemy and must be brought into the camp of allies. The Bush administration, consequently, derives a very moral conclusion from its realist assumptions: it sees preemptive action as a right reserved to each nation for use when necessary, and it justifies that right in terms of (what it perceives to be) not only American but universal moral values. The safest world, on this view, is a world that accepts our account of justice; any party that does not is a rogue and must be persuaded - by force, if necessity dictates it. As the President stated in his April 13, 2004 press conference, “Freedom is not this country’s gift to the world; freedom is the Almighty’s gift to every man and woman in this world. And as the greatest power on the face of the Earth, we have an obligation to help the spread of freedom.”

Political pragmatism earnestly agrees with the premises of this doctrine: a pragmatist theorist will use international organizations when possible to further American security interests, and will abandon them whenever necessary to preserve those interests. It is in the identification of such “necessities,” however, that pragmatism departs from the Bush doctrine. Without recourse to absolutes such as God’s laws or right reason to anchor one’s views of moral action, it is senseless for the United States to claim an immutable right to preemption against the rest of the world, unless the rest of the world assents to it – and if it does not, then it is the United States’ responsibility to abide by that global consensus, not because it is right to do so, but because it furthers our long-term interests. Only by meeting global resistance to our interests halfway can that resistance be overcome. An expansion of the “we” must be coaxed, not forced as a part of some divine or universal plan. One modern pragmatist states, thusly,

After long and unsatisfactory struggles with the search for a transcultural foundation, there is something quite appealing about giving up the fight, examining the consequences, and seeing that we can still say what we want, with no worse effect. For example, by telling a non-liberal government that there are naturally existing human rights, we are no better off or more convincing than saying that, ‘from the perspective of my liberal culture, your citizens are suffering at the hands of your government, and that is where I stand.’ Indeed, by undermining the universal moral authority of our claims about human rights, we may even serve to enhance our powers of moral persuasion” (Cochran 165).

Pragmatism, then, prefers an approach to national security interests that is less directly confrontational than pure moral reasoning, but that takes moral influence more seriously than traditional realism does. This indirect approach to security is to begin by accommodating some competing interests and moral sentiments from the world at large, molding them into a middle ground compromise which exactly matches neither our moral baseline nor “theirs,” but resembles both to a great enough extent that it secures the allegiance of the greatest number.

For the pragmatist, this is an unending but manageable task and one worth undertaking, and it is best executed by combining strong national advocacy with soft engagement.

This is necessary because unilateral action in the face of international dissent is too often counterproductive of the desired aims of that action. Often times a “moral” course, such as the neoconservative drive for a democratic Middle East created in the West’s likeness, will have to be moderated or abandoned altogether in light of political realities and conflicting moral claims. Michael Walzer illustrates this point finely with an example from recent history:

All the obvious prudential calculations about the costs of intervening, the probability of winning, and the likely aftermath are morally necessary… It would not have been just, for example, for the United States to risk a nuclear war in Hungary in 1956 notwithstanding the justice of the Hungarian revolution. We were bound not to impose that kind of risk on the people of Hungary or on Europe generally… Prudential considerations are integral to the judgment that we have to make. It does not help to imagine some grand conflict of consequentialist and deontological arguments (2004 39).

Walzer’s very important contribution here is to assert that morality and strategy are naturally intertwined and can never be wholly separated: whether one “ought” to do something is very much a function of whether one can succeed in doing it.

The interplay of morality and strategy is not new: Clausewitz flatly stated in his magnum opus, On War, that “no one starts a war – or rather, no one in his senses ought to do so – without first being clear in his mind what he intends to achieve by that war and how he intends to conduct it” (579). From this a pragmatist infers that we should dispense with distinctions between jus ad bellum and jus in bello, that we should discard the notion that a war can be justly declared but poorly waged in the event. It is not enough that military action seeks to right a wrong or intends to bring about a state of security and stability; it must as well be reasonably capable of doing so, without bringing about a worse state by its unintended effects.

As we now see, when stripped of the veneer of truth, moral considerations in waging war become wholly prudential. Building upon this perspective, a pragmatist war convention will have to exercise greater restraint both in identifying threats to security and in addressing them. Certain traditional fixtures of just war theory will occasionally have to be ignored, while others will take on a greater importance. For example, when a state considers whether to prosecute unpopular actions in civilian-rich areas, the rule of double-effect or unintended consequences, which absolves an army of guilt for collateral damage caused in the pursuit of a military objective, will have to take a back seat to the rules of proportional response and immunity for non-combatants – for, even if heavenly justice absolves an army of responsibility, the court of public opinion still holds forth on the issue, and popular support is critical to the success of anti-terrorist and counterinsurgency efforts. “Foreign assistance and a determined effort to persuade hostile publics that the United States does not want to be an enemy are crucial, not because they are likely to reduce the number of potential terrorists to a safe number, but because they are likely to make it possible for a friendly state to do that” (Heymann 2001, 27). As in Walzer’s Hungarian example, if an action is likely to exact substantial human and material costs – especially costs that can be witnessed by an international audience via mass media – to achieve its tactical successes, the attacker risks too much in terms of the moral power he will need to achieve ultimate victory, and the action should be dismissed as strategically undesirable.

The consequences of this philosophical turn for preemptive war are enormous. On the pragmatist view, it is simply not enough to believe that a grave security threat exists, especially if a global consensus cannot be reached on the threat’s imminence and gravity. An actor considering preemption must carefully weigh that threat not only against the material costs of intervention, but against the costs assigned to it by the prevailing moral sentiments of the day. But as it was just suggested, even if intervention is warranted by the nature of a threat, and even if that action is tolerated by the international community, such toleration can turn quickly against the intervening power if its actions exact too dear a cost on civilians, property, or global sensibilities by their effects, intended or otherwise. No matter what a particular account of justice or international law has to say about preempting such a threat, if the action taken is unpopular, expensive, and borne by only a few actors, its prospects for success are likely so limited that it would be imprudent to act with overwhelming military force.

This is not to say that a prudent posture would leave us wholly defenseless when a threat against us is not recognized by a larger international community. For if pragmatists are serious about working free of truth-obsessed, foundational thinking, they “would facilitate thinking in terms of ranges rather than oppositions in regard to questions about persons, states and the scope of ethical claims” (Cochran 166). Foundational thinking is more likely to yield static notions of what constitutes a clear threat and what a clear response to it might look like. Just war theory has always approached these critical terms of preemption in sterile and largely unhelpful ways, assuming that state sovereignty, individual freedom, or some other virtue is always the highest value and then focusing on obvious military threats to it. The predictable result is a preoccupation with large-scale (though proportional) military preemption. Such a perspective rarely solves the common “hard cases”, where the nature of a threat, the proper means to address it, indeed the core ethical presumptions that lead to threat assessment, are all open to debate. Pragmatism, rather than dodging conflicts of values, attempts to incorporate them into a prescription for political action. Hence pragmatist theorists can offer a range of preemptive measures for a range of perceived threats.

Walzer gives us an example of this sliding scale of preemptive justice when he encourages us to distinguish between states that actively partner with terrorists and states that harbor them (or are rumored to do so). The right response in the latter cases “involves measures short of war, which are likely to be most effective if they are organized multilaterally. In fact, it should be a goal of US foreign policy to mobilize international support for diplomatic, political, and economic pressure on states that allow terrorist organizations to work from their territory” (Walzer 2004, 38). Cultural diplomacy, economic incentives, sanctions, blockades, covert action, and even isolated strategic air or ground strikes can all be seen as preemptive instruments, each of which can address a variety of situations and each of which is more likely to garner valuable global support than the deployment of hundreds of thousands of troops to a trouble spot.

Nor is Walzer alone in this call for moderation in choosing ends and means. Some of the most recent popular books by political scientists have pressed for the United States to rely more heavily upon its “soft power” (Nye 2004) to pursue national security and support an “emerging global normative synthesis” on issues of justice (Etzioni 2004). Academics, foreign ministers, and military professionals worldwide are calling for greater empirical honesty and global consultation to distinguish between grave threats and international nuisances and to address each in a manner proportional to the danger. “Granted,” states one academic, “it takes time and a particular context that can afford the slow, plodding process of persuasion and argument, but in casting aside the arrogance of foundational thinking it may work to provide the strongest basis available for long-term efforts towards the expansion of moral inclusion” (Cochran 167).

Any military officer worth his or her salt will agree with Mao that it is asinine generalship to limit one’s options unnecessarily in a struggle. But we do precisely that by viewing morality as a reflection of truth rather than as a powerful instrument for compelling others to accept our will. A far-sighted war convention that favors American interests will hold the latter view. Its advocates will call for restraint, consultation, and deliberation in threat assessment, even and especially when preemptive action is considered. By adopting such a convention, we will enhance our moral standing in the world, increasing our “soft” power and lessening the need for “hard” military action as a primary tool of foreign policy.

References

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Larmore, Charles. 1996. The Morals of Modernity. New York: Cambridge University Press.

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Wendt, Alexander. Anarchy Is What States Make of It: The Social Construction of Power Politics. International Organization 46: 391-425.