I Say “Preventative,” You Say “Precipitive;” Let’s Call the Whole Thing…?
When Does Anticipation Become Instigation?
A just fear of an imminent danger, though there be no blow given, is a lawful cause of war.
-Francis Bacon, “Of Empire” Essays (1625)
It’s easy to lose scope in the midst of a war. From within, a conflict can seem interminable. Michael Walzer, seeking to re-establish perspective, notes, “War is only a temporary rupture in international society and it is a recurrent rupture. For both these reasons, it ought never to be a total rupture.” Over the millennia, disputants who’ve sensed the advantages of the limits that are rules have refined guidelines which we’ve come to know as the Just War Tradition. These refraints aim at making war slowest to come, mildest in character, quickest to end and slowest to return. Because after all the killing is done, we still have to live with one another.
One of the counsels to keep arms’ arrival at arm’s length is to be long suffering; not to fight ‘just because,’ but only when there be just cause. Common wisdom is that a just cause exists when an opponent has already - or is on the verge of - committing a transgression which can only be answered - or interrupted with - resort to force. The latter situation is the focus of pre-emption.
It’s a good rule of thumb to be slow to take insult, loth to see assault in the offing, because an abundance of anticipation tends to spill over into instigation, and then not only is the feared situation at hand, but by our own hand. The erring presumption of violence precipitates inadvisable wading into a Rubicon which swift, confusing current steals footing and threatens our advancement toward some hoped far shore, as well as blocking return to the relative solidity of the diplomatic road too recently abandoned.
However there’s also prudence in acting earlier rather than later, checking an opponent’s movements before their designs gain time’s gift of overwhelming momentum. Occasions when this counsel has been sacrificed bolster the cynicism that ‘nice guys finish last.’ The moral high road has not always proven to be the road to success.
In short, the various goals of the Just War Tradition don’t always compliment each other. Arriving later, conflict may enter ravenous and be hard persuaded to leave. Conversely, in hopes of keeping it mild we might have to invite it sooner. Minimizing war doesn’t occur through maximizing any of its individual aims, but optimizing them in tandem; artfully juggling (in the case of pre-emption) just cause, proportionality of ends and reasonable hope of success.
The example which looms largest in my mind is
As is often said, timing is everything. The pre-emptor, painfully aware that “a stitch in time saves nine”1 but also that anxious measures squander treasure, sits on the fence between dragging his heels and rushing in headlong. Not so much wanting to throw the first punch as just wanting to avoid receiving it, they’re left wondering how far forward-leaning we can be without falling on our faces. At what point do we cross the fine line between anticipating a conflict at the hands of another and instigating it by our own?
Proponents of pre-emption hold that we can, in good conscience, lean so far as to throw (perhaps even land) a blow of our own before an opponent has landed (perhaps even thrown) one of theirs. This paper is an exploration and espousal of that opinion.
The Argument Against Pre-Emption
A monument to William Tecumseh Sherman in view of the White House portico echoes Hugo Grotius when it instructs, “War’s legitimate object is more perfect peace.” In the sculptor’s use of ‘legitimate’ I read ‘moral.’ Pope Pius XII further noted, ‘Justice is the servant of Peace.’2 Justice personified holds aloft a set of scales. The symbolism of that instrument is rich. While they don’t literally bring peace, what they do effect is synonymous; a state of balance, equanimity, which is visible for all to see, no matter where they stand.
The scales, as initially cast, are empty and at equipoise. An injustice is one’s removal of or heaping on of a tipping weight, driving another to seek recompense for diminished or encumbered station. (Any second, answering act, if in kind and quantity, has the potential to be balancing.3 Accordingly, the self-congratulation of those who would be morality’s champions is never, “We’re Number One!” but always, “We’re Number Two!”)
Aggression is such an imbalancing act – the unprovoked attempt to deprive others of freedom, of behavior or thought, by the threat or the taking of blood or treasure.
Keying in on the term “unprovoked” in that description brings to mind the concept of first use of force. By its primacy in the material matters of war, first use of force appears as doppelganger to aggression.
And, as pre-emption champions that first use of force, it falls under the pall of suspected injustice.
A simple argument provides few fronts to attack, and such is the case here.
As definitions, the first two premises are couched conservatively enough to avoid argument. The third, product of the two, inherits their strength. The sixth claim is equally unassailable, since pre-emption simply does, in fact, commit one to first use of force.
If the argument has any Achilles’ heels, then, the candidates are claims four and five. As number four, if proven false, promises greatest impact (eliminating five as an inference) it gets the nod.
Is first use of force synonymous with aggression, equally guilty as an inherently provoking practice? Complicating the question, as matters of opposition involve multiple parties, there are at least two first uses of force which must be measured against aggression’s standard.
A world of difference separates the aims of the agonizing, reluctant fearful from those of slavering, would-be conquerors. But while pre-emption isn’t the bald-faced aggression the architects of the just war tradition surely had central in their sights when they framed the prohibition of first use of force, it doesn’t fall far enough from that tree to avoid condemnation by association. While its intent isn’t to commit injustice but to avoid it, not to perpetrate some theft but to prevent one, the chronological compression of activity which comes with pre-emption has two people’s opposing behaviors tripping over each other in a race to each be the first expressed and squeezes the two so tightly together in a moment as if to render them judicially indistinct.
In the potentially fast-paced unfolding of an aggressive act, unraveling the “action-reaction-threeaction…” snarl to determine where guilt lies and who it lies with requires us to chronicle the life cycle of an aggression, drawing out that action and slowing it down in hopes of capturing, frame by frame, what in experience is only a blur of motion. Only by doing so can we hope to discern the various stages in the evolution of an offense and assess the truth of the suspect claim that aggression-the-unjust first takes the stage at the sponsoring hand of force.
Lifecycle of an Aggression
By my reckoning, there are five successive steps which populate the path to aggression. At its near end, the timeline which terminates in enmity’s concrete expression begins with enmity’s opposite (affinity) or, at the least, its absence (indifference). At this first stage, an other’s feelings run the gamut from concern for our well-being to apathy, neither positive nor negative; being cognizant of another’s situation but not regardful of it.
From there an other’s state proceeds to the forming of an ill will. This isn’t to be taken as an inclination or likelihood by the ill-willing to go out of their way to harm another, but at the same time, in the event they see another in trouble, there’s disinclination to go out of their way to help. At this stage, the ill-willing don’t seek, aid, or even necessarily act to remove themselves from the path of another’s misfortune, but that’s not to say they wouldn’t delight in it should it come.
Next is the forming of an ill intent. Arriving at this point marks the transition from a desire to see another adversely affected into desire to be the effecting agent. And not simply a desire, but an inclination to that end; the nascent swells of an impetus, forming a will to bring it into being.
After that comes the throwing of the blow, the conversion of mental energies into physical ones. If intention is engine, this stage is transmission, gifting outwardly observable animation to what, prior, was in doubt if not indiscernible.
Full fruition comes with the landing of the blow, the culmination in expression of what was, up to this point, always still merely inchoate.
Those are the five time frames in the descent from being regarded least to being least regarded. The final four, representing steps down from the status quo, can be expressed with a shorthand slang of, “You’ve made me angry,” “I’m going to hit you,” “Here it comes…” and “…there it is.”
Each a stepping stone in an ever-degenerating situation elicits status quo-seeking behaviors by a second party. The term “counter,” rather than “response” or “reaction” is used to describe these, because those carry connotations of precedent physical occurrences which beg the issue. Further, the names of these counters have been appropriated from the language of jurisprudence out of a belief that moral war - in its essence the opposing of bad behaviors by actors on the global stage - is “merely” an agent of jurisprudence writ large.
The first of these counters is “habilitation.” At its most, it consists of efforts to develop fellow-feeling in another, a fostering of mutual good will. At its least, it aims at gaining sufficient familiarity to minimize misunderstanding and establish credible assurances of non-interferences by us, in exchange for equal consideration from others.
I take habilitation to properly come into play at the point another has achieved, at the least, indifference, and lose efficacy at the point ill-intent has formed.4 It isn’t viable prior to indifference, because, as this two dimensional layout is of a cycle of aggression, apathy-indifference will be preceded by the rift which brought us to blows, and attempting the quiet work of habilitation while still enmired in the heat of exchange or sought recompense would be premature.
Conversely, it has no place after ill-intent arises, because at the point an other has set the goal of hitting you, the time for keeping them from entering a frame to nurture that notion is past. As example, there’s risk in holding out your hand to a growling dog. And, insofar as there’s little percentage in extending it to one who is already barking, habilitation may even be past the point of any utility by the time another has formed an ill will.
Next in the series, “deterrence” consists of efforts to dissuade an other from developing the impetus for action, from nursing a general discontent into a specific opposition. Initially, it strives to keep others from forming an inclination to do us harm. Failing that, it seeks to motivate them (positively or negatively) to not act on the inclination.
At the earliest, deterrence comes into its own at the point an ill-will is formed. It would be out of place before that time, because before that point there’s nothing tangible to be turned from, nothing even potentially opposing to be opposed.
It may even be premature up until the point an ill intent is formed. In the absence of dark inclinations, encouragements not to develop any might be viewed as veiled threats and have unintended consequence of spurring an other from dormancy to action.
At the point a blow is thrown, deterrence’s usable life expires. Once an other is engaged in action, encouragements not to become moot. There would be limited utility, for instance, in phoning the Russian Premier and informing him there will be consequences for his actions, when his ICBMs are ten minutes into their polar flight.
The successor to deterrence is “incapacitation.” Whereas the work of deterrence is to dispel an other’s desire to harm, incapacitation seeks to remove their ability to do so. Either counter, if effective, will ease a situation, since neither desire nor ability by itself constitutes a threat. But incapacitation, being the more invasive conduct, is held in reserve.
As perhaps emulated by deterrence, incapacitation has no place before an
other’s ill intent exists. Summarily removing an other’s means to aggress
is likely to foster their desire to do so, no matter the will they bore us
previously. Surely fear of the threat from the fifth column, in the wake
At the other extreme, a blow landed is the definitive pronouncement of incapacitation failed. Tackling the running back once they’ve entered the end zone merely demonstrates one’s frustration at that.
It’s not even likely incapacitation has utility once a blow has been thrown. That’s closing the barn door after the horse is out. Consider taking away someone’s ability to throw a rock at you after one has left their hand. In the event it fails to find its mark, you might still have opportunity to remove their ability to repeat the process, but as for the missile in flight, that opportunity’s flown.
Where incapacitation fails to check an unfolding occurrence, “deflection” is looked to. At the point one is already being struck at, last best thing is to not have any of the attempts strike home. Least desirable position, the last resorted to in hopes of frustrating a foe’s ultimate aim, it does nothing to diminish their drive or capacity to act.
Deflection must wait for a blow to be thrown to find purpose. If, for instance, one anticipates a punch and begins a counter too soon, at the moment the fist arrives the blocking arm is past the point of negating it.
Hesitation, though, is equally hazardous. Only in cartoons is it humorous to watch Wile E. Coyote’s parachute deploy seconds after he impact the bottom of a ravine.
If deflection is unsuccessful, the only remaining recourse is “punishment;” repayment of, or, more accurately, exacting of payment for that which has been taken in the commission of an aggression; recompense.
To say punishment is the only recourse after a blow is landed isn’t to say our only recourse to it is at that time. Again, couched in broad terms to avoid defining the issue out of existence, punishment is applicable anytime after an unprovoked offense has occurred. Certainly after an antagonist’s blow has landed and the greatest possible evidence of an aggression is available. Less obviously but no less surely, at the point that blow has been thrown. And, if intent has the power of prescience, at the point one of those has been birthed.
The point where an intent to aggress is formed is a watershed of sorts. The counters which precede, it, habilitation and deterrence, have the potential to be accomplished with just a look, a word. They’re not yet the matters of arms which constitute force. But all counters beyond that point are. As such, they’re the true focus and deserve amplification.
To distinguish them, deflection, occurring in the process of another’s aggression becoming manifest, aims at nullification, freezing the offense in configuration. Punishment, at least that occurring in the post-impact phase, if matching in kind and quantity, constitutes retribution.5 Incapacitation, if occurring in the time frame indicated, before another’s first use of force, is pre-emption.
All parties’ possible first uses of force are now laid out for viewing, and the heart of the frustration is made graphically clear. What leaves pre-emption an itch we can’t easily scratch is our tendency to view behavior as bifurcated, an indivisible marriage of intention and action. But if this whole dissection of an aggression is accurate, that union’s been riven by incapacitation, which has firmly entrenched itself between the alpha and omega of another’s behavior, carving out Time Frame C. Given the limits of an otherwise adequate nomenclature, by which everything is neatly tagged “before” or “after,” this “trans” phenomenon defies easy classification. Like electromagnetic energy in the realm of physics, which plays the field between the otherwise mutually-exclusive categories of particle and wave, a cautious reading must treat pre-emption likewise; as occurring both after action of another (is begun) and before (it is done).
That complexity’s captured by the two action counters that are at play in this timeframe, incapacitation and punishment, pointing, as they do, in opposite directions.
Like its predecessors habilitation and deterrence and its successor deflection, incapacitation is forward-looking, aimed at preventing justice’s scales from leaving their level orientation at another’s hand.
Punishment, in contrast, is backward-looking, responding to another’s previous offense, working to return the scales to level once they’ve been thrown out of kilter.6
Between them, they offer two ways to explain (and possibly exhonerate) pre-emption.
At this point a return to discussion of justice will be helpful. Its scales were used to broach the argument against pre-emption. They also serve to introduce the counters to those arguments.
There are two ways to enjoy balance in our collective behaviors. One is to return the scales to a level condition once they’ve been tipped, by return of what was taken or removal of the thing heaped on.7 The other is to prevent the scales from being upset in the first place, by denying the person who is seeking to relieve us of something or impress something upon us the opportunity to do so.
The detractor’s claim that first use of force is an instance of aggression, imbalancing injustice, is a claim that it can’t serve in either of these capacities, as a leveling influence to right the scales of justice in any way. In essence, the opponent of pre-emption is denying the viability of punishment or incapacitation within Timeframe C, presumably arguing that, at the least, they should both be advanced one frame to the right.
Answering those criticisms comprises the counter-argument in defense of pre-emption.
The Argument from Principle
Why claim that pre-emptive use of force can’t serve as an agent of punishment? Because as mentioned earlier, proportionate punishment, retaliation, is the seeking of replacement, in kind and quantity, for that which has been that taken, or removal of what has been piled on.
However when we try to shoehorn retaliation into Timeframe C, it seems oversized by half, given that the offense being repaid hasn’t fully occurred. Punishment in full is premature and, worse still, to some degree speculative. Pre-emption brings war’s first fog.
To give that criticism its due, retaliation in Timeframe C is only promissorily so, pre-payment for what is coming rather than repayment for what has occurred, putting the pre-emptor on tenuous ground. What guarantees that promissory note, assuring us, in the time before another’s intent has been made manifest by outwardly visible signs, that attack truly is on the horizon? What makes its imminence eminent?
If anything, the belief that an intent to aggress, at the point it’s drafted, before displayed, will mature into an expression of aggression, that intents are pregnant things and will ultimately birth acts. Such is the force of will, which behavior-the-bifurcated enjoys before it assumes the force of physics. And while Sir Isaac Newton crafted his first law of mechanics in the context of physics, it has equal application in all discussions of force, the concrete and intangible alike. The tendency of bodies (and intents) in motion is to maintain a straight-line path. The tendency of intentions is to put bodies in motion. Inclination to act, in the absence of any opposing force, will come to fruition, and the intent to strike, barring any blockage, is a foregone contusion.8 That conviction gains momentum as another’s aggression looms ever larger.
As evidence of this thread running throughout a behavior, take an example from domestic criminal law - murder. Soliciting, attempting, and committing it are all crimes. The mere asking of another to murder a third party is an offense. The apparatus for punishment, acknowledging the subtle sublimation over time of a behavior, operates on a graduated scale, building over the three time frames in which (I claim) it is a viable counter, with solicitation being a lesser crime than attempted murder, and an attempt less heinous than a completed homicide.9
Sadly, we do have to concede that, no matter how high the probabilities are piled up, the argument from principle will always be, at best, an inductive one. The phrase “it’s likely things would have been this way,” no matter how loudly uttered, will never carry the finality of a deduction’s quiet “it’s impossible they could have been otherwise”.
It’s a frustrating limitation. By their action, the pre-emptor consigns anticipated events to the scrap heap of counterfactuals, erasing another’s pending footprints with their own, the evidence which otherwise would have exhonerated their actions. Having inverted the one-way flow of time’s traffic by putting effect before cause, the punishment they suffer is inversion of the principle of innocent until proven guilty, such that they will ever bear the burden of proof. Until some deus ex machina such as Tom Cruise enjoyed in Minority Report finds its way into our hands, an ability to fashion windows in the door to the future, the case for pre-emption will always reside in the shadow of that doubt.
The Argument from Practice
Why the claim that first use of force can’t serve to prevent pending harms? Again, it’s a question of timing. Opponents of pre-emption can agree with its advocates that prevention doesn’t gain purpose until another’s aggressive intention comes to light, but the skeptic of justified first force holds that until first physical steps to give the action form have been taken, intent doesn’t exist, or, what’s the same thing for every second party, for the purpose of setting a course of action, every third one for the purpose of adjudicating, can’t be proven to exist.
While there’s little harm in bringing the inevitable early, the pre-emptor makes real what was in no way foregone. Rather than mitigating, perhaps preventing something already in progress, they precipitate what hadn’t yet and wouldn’t necessarily have begun.
The temptation to focus on behavior’s physical expression is understandable. The heart of morality, intention, residing in the inscrutable heart of others, leaves us wanting something tangible, unequivocal, to point to. The most defensible position for those who would prosecute, be exonerated, or be exonerated in prosecuting, is to point to acts as the manifestations of intentions. The circumstantial case that alone can be built is strongest when some body of evidence can be presented. The inverse of the writ of habeas corpus is at work here. Without the presence of a body (of other’s prior aggression) the pre-empting defendant isn’t easily acquitted.
There’s no tidy Socratic argument to dispatch that criticism, only observation that sometimes in the time before another tips their hand, our instincts, hopefully our best ones, tell us events are already in motion and our options have dwindled to the point that what happens to is no longer negotiable, only when.
While we praise the blindness of justice, we lament our own. So we do our best and hope we’ve read all – and read correctly – the few signs available, and come to the same conclusion that all others, in their best moments and with the added reflection of remove they enjoy, would have.
And we try to avoid the temptation to let the future adjudicate the present, to Monday-morning quarterback the calls made by the referee who, at the time, wasn’t privy to the instant replay and the locker room disclosures of all the players. Much as it galls our thirst for certainty, pre-emption is properly (and proper) in the eye of the reasonable deliberator, not the omniscient one.
So arguments against pre-emption have been made, and hopefully answered. The critic’s contention is that first use of force cannot serve in a justifying capacity, either to mend or forfend another’s rents in the fabric of society. Their ultimate position requires they establish both claims.
I maintain pre-emption can serve in both capacities, and my stance requires I succeed by half. If one or the other of the counter-arguments is persuasive, the remainder of the critic’s assertions fall like dominoes. First use of force, either to punish or prevent aggression, perhaps both, is justified. And, as pre-emption is in the employ of at least one of those purposes, it follows that it is justified.
The two arguments outlined above are attempts to answer the questions, “What does it really mean to intend to do something?” and “How can we know when another is doing it?”
One’s a question of ontology, the other an issue of epistemology. I call them the arguments from principle and practice respectively, because gaining satisfactory answer to the first is a function of how well we conceive the mental processes taking place within us, and to the second is a matter of how well we perceive the events going on all around us.
As to principle, undervaluing the weight of intentions leads to misplaced accountability in cases of pre-emption, misattributing to one the transgressions of another. Focusing primarily, or worse, solely on the experiential component of our and others’ behavior limits our deliberative diagnostics to a simple chronology of events, which cannot, with its single dimension, capture the full complexity of predictive, human affairs. A rote transcript of occurrences, being oblivious to the intents which underlie them, doesn’t admit entertainment of an essential point, that first use of force is not always unjust because first injustice is never the use of force, rather its serious entertainment.
Regarding practice, rightly assessing the point to which another’s behavior has progressed is the most crucial and difficult aspect of timing in every phase of war, perhaps most of all in the prelude. Pre-emption’s advocates and detractors wield this criticism in equal measure. The one accuses the other of authoring a host of ills. The other counters they’ve merely edited another’s ill-begun work. The one claims the other has plunged us into the unavoidable. The other replies they’ve simply attenuated the inevitable.
The tightrope walked by the pre-emptor is the fine line stretched between the dimly glimpsed situations a potential opponent might occupy, hoping to discern whether they currently inhabit a state of benign apathy or enmity growing material. Bending over backward to assure just cause - if fears be warranted - usually does not foster (and likely diminishes) reasonable hope of success. On the other hand, anxiously stretching to grasp success threatens our moral footing. The straight and narrow is called for, as too far in either direction risks the fall of either our immediate protection (our ability to meet force) or our lasting protection (our principles).
We hope our communications will bring us ever back from the precipice, we hope our judgements will keep us from it in the first place.
As far as the consequences of not getting this all right, principally speaking, what’s at stake if we lack a common conception of pre-emption (and by that I mean an appreciation of who’s doing what and when, as laid out in exploded view earlier) is wrongly calling a “counter” an “aggression” and ‘justicing’ each other to death in an impossible quest to return those scales to a position of balance they already enjoy.
Practically speaking, what we risk if we fail to properly assess, to be exhaustive in our attempts to rightly read others’ minds and know their true proximity to or distance from violence, is - worst case, granted - starting down the frenzied, ever-tightening spiral of beating the other to the punch which, with each iteration, is more assuredly coming, until we’ve devolved beyond hitting the other guy before he hits us, to hitting him before he even thinks about it.
On the uncertain ‘play’grounds of our earliest days, erring on the side of caution sometimes had us sitting in the Principal’s office. Erring on the side of exculpability sometimes had us suffering the bully’s fists. The key observation is that the word “erring” was present in both sentences. As in tightrope walking, over-corrections aren’t. Thus the imperative that we get it right.
1 Benjamin Franklin
2 citation not yet located
3 The utility of the metaphor might be called into question by some. Consider Martin Luther King Jr.’s echoing of Immanuel Kant when King said, “The means we use must be as pure as the ends we seek.” ‘Answering in kind and quantity’ smacks of returning ill for ill in order to render two contenders ‘even-steven,’ and Mr. Kant’s credo of “Do no evil that good may come” sets all like-minded at odds with that notion.
In light of Mr. Kant’s admonition, what’s in question is whether the means must be as the ends in order for the ends to obtain, whether the machinations of justice, perhaps demanding an eye for an eye and rendering two half-blind in the process, fall short of the ideal peace to be found in returning both to fully-sighted status.
I’m sympathetic to that tug. However I take thousands of years of recourse to violence as expressions of doubt as to the possibility of gaining remuneration for the fungibles that most losses we suffer constitute. At the same time I take the reluctance which has attended our resorting to force over those thousands of years as testament to a universal desire to realize such a world.
4 The convention of solid and dotted lines: solid ones denote the most effective/least contentious timeframes for a given counter. Dotted lines represent peripherally viable/questionably relevant timeframes in which to engage in a behavior.
5 (if exceeding in kind or quantity, it stands as vengeance).
6 If it doesn’t sit well to think of counters running in two directions, consider punishment as also forward-looking, simply far forward-looking; a secondary deterrence. Whereas deterrence, incapacitation and deflection are concerned with heading off today’s transgressions, punishment – by validating the threat of consequences – looks to preclude tomorrow’s.
7 This is the ideal course, the least disruptive, being return to the initial configuration, a bonafide undoing of a wrong. In biblical terms, rather than an eye for an eye, this would constitute a return of the wronged individual to full sight.
If return to or removal from the affected pan isn’t possible (as is too often the case, given the fungibility of most of the things taken from us), the only recourse for levelling is to effect a new balance, by placing or removing something from the other pan – the eye for an eye which unfortunately renders two half-blind.
8 If that claim sounds overblown, it may be because in daily speech we’ve long made intent do double-duty. We rightly use it to mean ‘aspiring to bring about a situation’ and wrongly, as merely ‘desiring that it come into being,’ to the extent the full proper import of the former has been diluted by their mixing.
9 If nothing else is persuasive, perhaps the above leaves me consolation of a rhetorical question. If the conventions crafted through the ages reflect such a complexity in domestic interactions, is it realistic to hope that international affairs could offer tidier solutions?