Seth Lazar

Killing in War presents the Moral Equality of Combatants with serious, and in my view insurmountable problems. Absent some novel defense, this thesis is now very difficult to sustain. But this success is counterbalanced by the strikingly revisionist implications of McMahan’s account of the underlying morality of killing in war, which forces us into one of two unattractive positions, contingent pacifism, or near-total war. In this article, I have argued that his efforts to mitigate these controversial implications fail. The reader is left stranded: to reach plausible conclusions, Walzer deployed an implausible conception of our rights to life; McMahan’s more rigorous account of those rights generates untenable conclusions. Absent new developments, it seems that the prospects for grounding the ethics of war in individual rights are poor: any theory of our rights to life that is sufficiently indiscriminate to work in the chaos of war is not discriminating enough to be a plausible theory of our rights to life. Perhaps by rejecting the ideal of the rights-respecting war altogether we might develop an alternative theory of justified warfare, which marries theoretical soundness with conclusions that we can more confidently support.

This paper explicates a conception of injury as right-violation, which allows us to distinguish between setbacks to interests that should, and should not, be the concern of theories of justice. It begins by introducing a hybrid theory of rights, grounded in (a) the mobilisation of our moral equality to (b) protect our most important interests, and shows how violations of rights are the concern of justice, while setbacks where one of the twin grounds of rights is defeated are not. It then looks more closely at the substantive moral components of injury, namely harm—damage to one’s interests—and wrong—disrespect for one’s moral equality. It argues that, on the hybrid conception of rights, harm and wrong are individually necessary and jointly sufficient components of injury, and the disvalue of neither is reducible to the other—in particular, it is a mistake to construe the disrespect identified by wrong as another damaged interest. Finally, it distinguishes between the public and private dimensions of harm and wrong, and makes some preliminary suggestions as to whether the remedy for these different dimensions should lie in criminal, distributive, or corrective justice.

This paper asks whether we can defend associative duties to our compatriots that are grounded solely in the relationship of liberal co-citizenship. The sort of duties that are especially salient to this relationship are duties of justice, duties to protect and improve the institutions that constitute that relationship, and a duty to favour the interests of compatriots over those of foreigners. Critics have argued that the liberal conception of citizenship is too insubstantial to sustain these duties — indeed, that it gives us little reason to treat compatriots any differently from how we treat foreigners, with all the practical consequences that this would entail. I suggest that on a specific conception of liberal citizenship we can, in fact, defend associative duties, but that these extend only to the duty to protect and improve the institutions that constitute that relationship. Duties of justice and favouritism, I maintain, cannot be particularised to one's compatriots

In this paper, I ask how – and whether – the rectification of injury at which corrective justice aims is possible, and by whom it must be performed. I split the injury up into components of harm and wrong, and consider their rectification separately. First, I show that pecuniary compensation for the harm is practically plausible, because money acts as a mediator between the damaged interest and other interests. I then argue that this is also a morally plausible approach, because it does not claim too much for compensation: neither can all harms be compensated, nor can it be said when compensation is paid that the status quo ante has been restored. I argue that there is no conceptual reason for any particular agent paying this compensation. I then turn to the wrong, and reject three proposed methods of rectification. The first aims to rectify the wrong by rectifying the harm; the second deploys punitive damages; the third, punishment. After undermining each proposal, I argue that the wrong can only be rectified by a full apology, which I disaggregate into the admission of causal and moral responsibility, repudiation of the act, reform, and, in some cases, disgorgement and reparations, which I define as a good faith effort to share the burden of the victim’s harm. I argue, further, that only the injurer herself can make a full apology, and it is not something that can be coerced by other members of society. As such, whether rectification of the wrong can be a matter of corrective justice is left an open question.

It is generally agreed that using lethal or otherwise serious force in self-defense is justified only when three conditions are satisfied: first, there are some grounds for the defender to give priority to his own interests over those of the attacker (whether because the attacker has lost the protection of his right to life, for example, or because of the defender’s prerogative to prefer himself to others); second, the harm used is proportionate to the threat thereby averted; third, the harm is necessary to avert that threat. The first and second conditions have been exhaustively discussed, but the third has been oddly neglected. Meanwhile a prominent school of thought has arisen, in the ethics of war, which seeks to ground the justification of killing in war in principles of individual self-defense. They too have failed to offer any substantive analysis of necessity, while at the same time appealing to it when it suits them to do so. In this paper, I attempt a detailed analysis of the necessity constraint on defensive force, and explore the implications of that analysis for the attempt to transpose principles of individual self-defense into the context of warfare.

Soldiers sign contracts to obey lawful orders; they also swear oaths to this end. The enlistment contract for the Armed Forces of the United States combines both elements: '9a. My enlistment is more than an employment agreement. As a member of the Armed Forces of the United States, I will be: (1) Required to obey all lawful orders and perform all assigned duties … (4) Required upon order to serve in combat or other hazardous situations.' We standardly think that these oaths and contracts give soldiers new moral reasons to fight. Many also think that soldiers who are ordered to fight by legitimate states have moral reasons to obey those orders, just in virtue of their provenance. We generate these reasons through our voluntary decisions—to sign the contract or swear the oath; to form the institutions and give the orders. They are therefore additional moral reasons, on top of the reasons that we have prior to those voluntary decisions. Simply because they are additional, these reasons seem limited in force and scope. In particular, they arguably cannot override pre-existing commitments. For example, if I already have a duty not to kill an innocent person, my promising to breach that duty seems irrelevant to whether doing so is permissible. Similarly for orders issued by legitimate states: the citizens of a legitimate state have pre-existing moral reasons not to kill the innocent; by what alchemy could their state's orders allow combatants to override those reasons? If additional reasons could make prohibited acts permissible, as Sidgwick observed, ‘we could evade any moral obligation by promising not to fulfil it, which is clearly absurd’ (Sidgwick 1981). We might conclude that the contracts soldiers sign, the oaths they take and the orders they receive have weight only when they pertain to acts that soldiers are already allowed to do. Perhaps these additional reasons can require actions that would otherwise be merely permissible, but they cannot license otherwise prohibited actions. If this is right, then it radically limits the relevance of contracts, oaths and authority to the ethics of war, since almost all conflicts involve soldiers breaching some pre-existing moral duties. This is obviously true for soldiers fighting on the unjust side in a war, since almost all the killing they do is unjust. But in all actual wars soldiers on the just side also kill at least some innocent victims, whether as part of an unjust subordinate aim, as ‘collateral damage’, or simply because their adversaries are not sufficiently responsible for unjustified threats to be liable to be killed. If additional reasons cannot make otherwise prohibited acts permissible, then they are practically irrelevant to the ethics of killing in war, at least in this sense: if fighting is impermissible without regard to the contract, oath and authority of their state, then fighting is simply impermissible. This is a tempting conclusion. In this paper, however, I argue that even if it is true at the level of objective permissibility, it is false for subjective permissibility. And since subjective permissibility is where (at least some of) the action is in the ethics of war, this is a significant result. I explain first why additional reasons can make otherwise subjectively prohibited acts permissible, then why just war theorists should care more than they seem to about subjective permissibility. Although I focus throughout on the ethics of war, my arguments generalise to all kinds of additional reasons.

Killing civilians is worse than killing soldiers. Although this principle is widely affirmed, recent military practice and contemporary just war theory have undermined it. This article argues that killing an innocent person is worse the likelier it was, when you acted, that he would be innocent: riskier killings are worse than less risky killings. In war, killing innocent civilians is almost always riskier than killing innocent soldiers. So killing innocent civilians is worse than killing innocent soldiers. Since almost all civilians are innocent in war, and since killing innocent civilians is worse than killing liable soldiers, killing civilians is worse than killing soldiers.

Why does it matter that those who fight wars be authorized by the communities on whose behalf they claim to fight? I argue that lacking authorization generates a moral cost, which counts against a war's proportionality, and that having authorization allows the transfer of reasons from the members of the community to those who fight, which makes the war more likely to be proportionate. If democratic states are better able than non-democratic states and sub-state groups to gain their community's authorization, this means that some wars will be proportionate if fought by democracies, disproportionate if not

Recent work on the ethics of war has struggled to simultaneously justify two central tenets of international law: the Permission to kill enemy combatants, and the Prohibition on targeting enemy noncombatants. Recently, just war theorists have turned to collectivist considerations as a way out of this problem. In this paper, I reject the argument that all and only unjust combatants are liable to be killed in virtue of their complicity in the wrongful war fought by their side, and that noncombatants are not permissible targets because they are not complicit. I then argue that just combatants have some reason to direct force against unjust combatants rather than unjust noncombatants, because they should respect the reasonable self-determining decisions of other political communities, when those communities settle on the distribution of a negative surplus of cost for which they are collectively but not individually responsible. These collectivist reasons will not fully justify the Permission and the Prohibition, but they can contribute to that justification.

Modern analytical just war theory starts with Michael Walzer's defense of key tenets of the laws of war in his Just and Unjust Wars. Walzer advocates noncombatant immunity, proportionality, and combatant equality: combatants in war must target only combatants; unintentional harms that they inflict on noncombatants must be proportionate to the military objective secured; and combatants who abide by these principles fight permissibly, regardless of their aims. In recent years, the revisionist school of just war theory, led by Jeff McMahan, has radically undermined Walzer's defense of these principles. This essay situates Walzer's and the revisionists’ arguments, before illustrating the disturbing vision of the morality of war that results from revisionist premises. It concludes by showing how broadly Walzerian conclusions can be defended using more reliable foundations.

Contemporary just war theory is divided into two broad camps: revisionists and traditionalists. Traditionalists seek to provide moral foundations for something close to current international law, and in particular the laws of armed conflict. Although they propose improvements, they do so cautiously. Revisionists argue that international law is at best a pragmatic fiction—it lacks deeper moral foundations. In this article, I present the contemporary history of analytical just war theory, from the origins of contemporary traditionalist just war theory in Michael Walzer's work to the revisionist critique of Walzer and the subsequent revival of traditionalism. I discuss central questions of methodology, as well as consider the morality of resorting to war and the morality of conduct in war. I show that although the revisionists exposed philosophical shortcomings in Walzer's arguments, their radical conclusions should prompt us not to reject the broad contemporary consensus, but instead to seek better arguments to underpin it.

Arthur Ripstein’s article draws on more resources than I can deploy in this response to it. I will restate what I take to be the central claims of the article, then present a reply. Ripstein does not strictly argue for his view of proportionality in defensive force. Instead he paints a picture of a moral system that one might adopt, and indicates the role of the proportionality constraint therein. So after outlining how I understand that picture, I will draw an alternative one. I’ll then suggest that my alternative has a few virtues that Ripstein’s lacks. I should emphasise that mine will be a lightweight reconstruction of Ripstein’s view, without much of the Kantian architecture. Perhaps that architecture is fundamental to its plausibility, as part of a broader worldview. Nonetheless, I cannot address the totality of a Kantian system in a short commentary, so I’ll concentrate on the elements most pertinent to the problem at hand.

Interest in just war theory has boomed in recent years, as a revisionist school of thought has challenged the orthodoxy of international law, most famously defended by Michael Walzer [1977]. These revisionist critics have targeted the two central principles governing the conduct of war (jus in bello): combatant equality and noncombatant immunity. The first states that combatants face the same permissions and constraints whether their cause is just or unjust. The second protects noncombatants from intentional attack. In response to these critics, some philosophers have defended aspects of the old orthodoxy on novel grounds. Revisionists counter. As things stand, the prospects for progress are remote. In this paper, we offer a way forward. We argue that exclusive focus on first-order moral principles, such as combatant equality and noncombatant immunity, has led revisionist and orthodox just war theorists to engage in “proxy battles.” Their first-order moral disagreements are at least partly traceable to second-order disagreements about the nature and purpose of political theory. These deeper disputes have been central to the broader discipline of political theory for several years; we hope that bringing them to bear on the ethics of war will help us move beyond the present impasse.

Many of us believe (1) Saving a life is more important than averting any number of headaches. But what about risky cases? Surely: (2) In a single choice, if the risk of death is low enough, and the number of headaches at stake high enough, one should avert the headaches rather than avert the risk of death. And yet, if we will face enough iterations of cases like that in (2), in the long run some of those small risks of serious harms will surely eventuate. And yet: (3) Isn't it still permissible for us to run these repeated risks, despite that knowledge? After all, if it were not, then many of the risky activities that we standardly think permissible would in fact be impermissible. Nobody has yet offered a principle that can accommodate all of 1-3. In this paper, I show that we can accommodate all of these judgements, by taking into account both ex ante and ex post perspectives. In doing so, I clear aside an important obstacle to a viable deontological decision theory.

Suppose that you are trying to pursue a morally worthy goal, but cannot do so without incurring some moral costs. At the outset, you believed that achieving your goal was worth no more than a given moral cost. And suppose that, time having passed, you have wrought only harm and injustice, without advancing your cause. You can now reflect on whether to continue. Your goal is within reach. What's more, you believe you can achieve it by incurring—from this point forward—no more cost than it warranted at the outset. If you now succeed, the total cost will exceed the upper bound marked at the beginning. But the additional cost from this point is below that upper bound. And the good you will achieve is undiminished. How do the moral costs you have already inflicted bear upon your decision now?

The revisionist critique of conventional just war theory has undoubtedly scored some important victories. Walzer’s elegantly unified defense of combatant legal equality and noncombatant immunity has been seriously undermined. This critical success has not, however, been matched by positive arguments, which when applied to the messy reality of war would deprive states and soldiers of the permission to fight wars that are plausibly thought to be justified. The appeal to law that is sought to resolve this objection by casting it as a practical concern, a pragmatic worry about implementation, which while germane to debates over the laws of war, need not undermine our convictions in the fundamental principles the revisionists advocate. This response is inadequate. Revisionists have not shown that soldiers should obey the laws of war, in practice, when they conflict with their other moral reasons – our worries about application remain intact. Moreover, a theory of war that offers only an account of the laws of war, and a set of fundamental principles developed in abstraction from feasibility constraints, is radically incomplete. We need to know how to apply those fundamental principles, and whether, when applied, they lead to defensible conclusions. Only two options seem to remain. Perhaps the revisionists’ arguments for their chosen fundamental principles are sufficiently compelling that we should stick with them, and accept their troubling conclusions – in other words, accept pacifism. Alternatively, we need to revise our fundamental principles, so that when applied they yield conclusions that we can more confidently endorse. Though it does not save the revisionist view from the responsibility dilemma and cognate objections, the appeal to law does raise an important, and previously inadequately theorized, question – or, rather, resurrects a neglected topic, discussed in depth by historical just war theorists such as Grotius and Vattel. There are good grounds for distinguishing the laws of war from the morality of war, and for adjusting the former to accommodate predictable noncompliance, that should not impact on our account of the latter. Nonetheless, I have argued that there are some profound moral insights underlying both combatant legal equality and noncombatant immunity: specifically, we cannot infer from a combatant’s side having not satisfied jus ad bellum that he may not justifiably use lethal force; and other things equal, it is more wrongful to harm a nonliable noncombatant than to harm a nonliable combatant.

this paper advances a novel account of part of what justifies killing in war, grounded in the duties we owe to our loved ones to protect them from the severe harms with which war threatens them. It discusses the foundations of associative duties, then identifies the sorts of relationships, and the specific duties that they ground, which can be relevant to the ethics of war. It explains how those associa- tive duties can justify killing in theory—in particular how they can justify overrid- ing the rights to life of some of those who must be killed to win a war. It then shows how these duties can be operationalised in practice: first, showing how soldiers who fight on behalf of their community can act on reasons that apply to the members of that community; second, showing that the argument from associative duties does not prove too much—in particular, that it does not license the intentional killing of noncombatants in war.

The principle of non-combatant immunity protects non-combatants against intentional attacks in war. It is the most widely endorsed and deeply held moral constraint on the conduct of war. And yet it is difficult to justify. Recent developments in just war theory have undermined the canonical argument in its favour – Michael Walzer's, in Just and Unjust Wars. Some now deny that non-combatant immunity has principled foundations, arguing instead that it is entirely explained by a different principle: that of necessity. In war, as in ordinary life, harms to others can be justified only if they are necessary. Attacking non-combatants, the argument goes, is never necessary, so never justified. Although often repeated, this argument has never been explored in depth. In this article, I evaluate the necessity-based argument for non-combatant immunity, drawing together theoretical analysis and empirical research on anti-civilian tactics in interstate warfare, counterinsurgency, and terrorism.

The burgeoning literature on jus post bellum has repeatedly reaffirmed three positions that strike me as deeply implausible: that in the aftermath of wars, compensation should be a priority; that we should likewise prioritize punishing political leaders and war criminals even in the absence of legitimate multilateral institutions; and that when states justifiably launch armed humanitarian interventions, they become responsible for reconstructing the states into which they have intervened – the so called “Pottery Barn” dictum, “You break it, you own it.” Against these common positions, this chapter argues that compensation should be subordinate to reconstruction, with resources going where they are most needed and can do the most good, rather than to the most aggrieved. Just punishment, meanwhile, presupposes just multilateral institutions – the victor cannot be trusted to mete out punishment fairly. And just interveners, who have already taken on such a heavy burden, are entitled to expect the international community to contribute to reconstruction after they have made the first and vital steps. After presenting each of these objections in greater depth, the chapter proceeds to draw some tentative inferences from the threads running through each, and suggest that they illustrate a distinctive flaw in the way in which jus post bellum is addressed by many just war theorists, who not only see the war as the grounds of post bellum duties, but also take it to specify their content: Specifically, they take the rights violations with which wars are imbued to be the basis for post-war action, but take the content of post-war duties to be focused on rectifying those rights violations, rather than the more forward-looking goal of establishing a lasting peace. This backward-looking orientation unduly confines these theorists to making attributions of fault, to a limited palette of normative concepts, and to a focus on the belligerents rather than the international community as a whole. Undoubtedly warfare creates a distinctive normative relationship between belligerent states (though we must question how much of this devolves to the citizens of those states). War does generate grounds for post-war duties – but there are other grounds for those duties too, moreover the grounds should not determine the content. It of course matters that the citizens of two states harmed one another in violation of their rights. But when the war is done, peacebuilding should be the priority, not raking over the wrongs of both sides. Sections 2–4 present the objections, Section 5 offers the tentative analysis and proposes a shift in focus toward an ethics of peacebuilding, and Section 6 concludes.