Christopher Kutz

This commentary on Arthur Ripstein’s Tanner Lectures takes up several principal concerns with Ripstein’s powerful argument. First, the author suggests that Ripstein understates the tension, verging on contradiction, of the _ius ad bellum_ and the _ius in bello_, where the former (in modern thought) treats wars as a great evil to be avoided at nearly all costs, while the second treats war as a legitimate form of interpersonal conflict. Second, the author queries whether Ripstein’s focus in Lecture I on the wrong of perfidy causes him to place too much emphasis on the specific value of a negotiated peace, as opposed to further, intrinsic concerns with the breach of trust and lack of honor. And third, the author questions whether formal features of an aggressor’s intention can make any difference to the (im)permissibility of killing civilians. Last, the author strongly endorses Ripstein’s conception of the ethics of war as grounded in politics, not individual, interpersonal morality.

The contemporary emphasis in political thought on the special value of democracy, as an institution to be cherished at home and exported abroad, has put pressure on traditional conceptions of sovereignty that create rights of non-intervention for democracies and non-democracies alike. Put crudely, the worry is that the special value of democracy will tend to support a troubling level of international intervention to fill democratic deficits in other states, limited only by pragmatic considerations. This chapter offers an account of the moral standing of political communities lacking full democratic pedigrees—an account that entails both (qualified) rights of self-defence and (qualified) duties of other states to forbear from intervention. Following similar arguments by John Stuart Mill and Michael Walzer, the chapter urges a doctrine of non-intervention that requires standing back as would-be democratic peoples stumble and fall, resisting the instincts of the cosmopolitan heart.

This paper critiques the ‘Trolley Problem’ tradition in moral philosophy as simplistically reductive and dangerous in its applications. Beginning with Philippa Foot’s abortion arguments and evolving through Judith Thomson’s and Robert Nozick’s work, trolleyology abstracts moral decisions from social context, masking a politics of extreme individualism. This decontextualized approach, masquerading as objective moral science, has pernicious real-world consequences. The paper traces how trolleyology has influenced ‘Revisionist’ Just War theory, which reduces collective political conflict to individual self-defense scenarios. This reductive framework has helped justify contemporary drone warfare and targeted killing by treating complex military decisions as simple moral calculations. I argue that genuine ethical thought requires engagement with social context, relationships, and political complexity rather than abstract thought experiments.

This article examines Massimo Renzo's important argument regarding the moral responsibility of soldiers fighting in unjust wars. Renzo proposes a middle position between, on the one hand, traditionalist views that absolve soldiers of moral culpability when following orders within the law of armed conflict and, on the other hand, revisionist positions that hold individual soldiers morally responsible for participation in unjust wars. Renzo argues that soldiers in legitimate states have a pro tanto duty to obey orders unless the presumption of obedience is clearly rebutted through independent moral reflection—what he terms “peeking” at underlying justifications. While acknowledging the theoretical sophistication of Renzo’s hybrid approach, this response identifies critical instabilities in his framework. The analysis reveals that in practice, soldiers of generally just states rarely have sufficient grounds to overcome the presumption of obedience, effectively collapsing Renzo's position into a traditionalist absolution of individual combatant responsibility. Furthermore, the article argues that Renzo’s model creates a paradoxical situation in which soldiers can be simultaneously justified and unjustified in their actions. This paradox means that the account cannot fully address the tragic dimensions of political membership and the interpersonal nature of moral responsibility in warfare.

Arguments about the ownership of natural resources have focused on the claims of cosmopolitans, who urge an equality of global claims to resources, and resource sovereigntists, who argue that national peoples are the proper owners of their resources. This focus is mistaken: Whatever one believes about the in-principle claims of the global community, there remains the practical question of how the national surplus is to be distributed. And in addressing this question, we must look at a distinction heretofore ignored in resource discussions—that between resident workers and citizens. I argue that the extracted value of natural resources should benefit all residents of the states in which they are found, not merely all citizens. By contrast, control of natural resources should be vested in a democratic citizenry, who are nonetheless normatively constrained by the distributive principle described above. I illustrate the argument with data showing the gap, especially in the Gulf States, between principles that allocate benefits to all citizens vs. to all resident workers. My argument is grounded in a broader theory of collective agency as it applies to questions of distributive justice, and it is aimed not only to criticize practices in the Gulf but to support the more inclusive resource policies found in democracies.

I. INTRODUCTION Ian McEwan’s Enduring Love opens with a scene as powerful as any novel has given us in recent years: The pilot of a hot-air balloon, down in a field, is struggling against a sudden gust to get control; the balloon’s basket contains a child, perhaps the pilot’s son. The novel’s narrator, lunching in the countryside, realizes with horror that the pilot cannot gain control, that the balloon will be lifted up by the wind and almost certainly blown into high-tension lines nearby. Fortunately there are some others who have also spotted the problem, and the narrator and they converge on the balloon to help the pilot secure it. They are eager but uncoordinated; as McEwan says: “There may have been a communality of purpose, but we were never a team.”

We live in a morally flawed world. Our lives are complicated by what other people do, and by the harms that flow from our social, economic and political institutions. Our relations as individuals to these collective harms constitute the domain of complicity. This book examines the relationship between collective responsibility and individual guilt. It presents a rigorous philosophical account of the nature of our relations to the social groups in which we participate, and uses that account in a discussion of contemporary moral theory. Christopher Kutz shows that the two prevailing theories of moral philosophy, Kantianism and consequentialism, both have difficulties resolving problems of complicity. He then argues for a richer theory of accountability in which any real understanding of collective action not only allows but demands individual responsibility.

Introduction : war, politics, democracy -- Democratic security -- Citizens and soldiers : the difference uniforms make -- A modest case for symmetry : are soldiers morally equal? -- Leaders and the gambles of war : against political luck -- War, democracy, and sSecrecy : secret law -- Must a democracy be ruthless? : torture and existential politics -- Humanitarian intervention and the new democratic holy wars -- Drones and democracy -- Democracy and the death of norms -- Democratic states in victory : vae victis? -- Looking backward : democratic transitions and the choice of justice.

Two partners plan to rob a bank. The first recruits a driver while the second purchases a shotgun from a gun dealer. The driver knows he’s taking part in a robbery, although not a bank robbery. The gun dealer should have checked his customer’s police record before the sale, but failed to do so. The bank is robbed, a guard is killed, and the robbers escape, only to be caught later. “They committed bank robbery,” a prosecutor will say. But does “they” include the gun dealer, whose lax standards made the robbery possible? “They conspired to rob the bank”—but does “they” here include the driver, who didn’t know it was a bank they were robbing? “They killed a bank guard”—but does it matter which robber inside the bank pulled the trigger?

A large and impressive literature has arisen over the past fifteen years concerning the emergence, transfer, and sustenance of political norms in international life. The presumption of this literature has been, for the most part, that the winds of normative change blow in a progressive direction, toward greater or more stringent normative control of individual or state behavior. Constructivist accounts detail a spiral of mutual normative reinforcement as actors and institutions discover the advantages of normative self- and other evaluation. There is also now much interesting research focused on the question of how to predict the emergence of future norms.I focus, however, on a different issue here: the death of norms that had once seemed well internalized and institutionalized. The issue arises in relation to one of the most dramatic features in the defense policy of the United States since 2001: the crumbling of highly restrictive normative regimes prohibiting interrogatory torture and assassination as part of the “global war on terror.” My aim here is to sketch what I take to be the central features of cases in which even norms that are clearly defined and apparently well internalized in a democracy nonetheless lose their grip on policy. The ultimate lesson, however, is an unappealing irony: While democracies surely do better than authoritarian regimes in adopting and internalizing certain kinds of constraints, in part because of a greater sensitivity to public mobilization around normative questions, that same sensitivity makes the long-term survival of these norms precarious. In particular, I suggest that force-constraining norms are most effectively internalized by coherent and relatively insulated professional cadres who see themselves as needing to act consistently over time. But in a democracy the values and arguments of those cadres are susceptible to being undermined by a combination of public panic and the invocation by policymakers of a public interest that can override the claims both of law and pragmatic restraint. Democracy, hence, can be at the same time both fertile and toxic: fertile as a source of humanitarian values and institutions, but toxic to the very institutions it cultivates.The model I will describe may be of predictive use in helping us to see the special vulnerability of normative orders in democracies. But my hope is that it is also constructive in showing us how states and institutions committed to maintaining a certain normative order, especially democratic states, might best try to entrench those norms. While my argument is conceptual and philosophical, it draws on this recent history. I also add two qualifications to this article's title. First, I am not addressingallnorms, but specific norms concerning the state use of force in national security policy. I therefore do not make claims about the generalizability of the conflict I describe to other norms, for example, norms of racial, sexual, or religious orthodoxy or hierarchy, or norms of reciprocal interaction. Second, reports of a norm's death are frequently exaggerated, since norms can be latent, then resurrected. Arguably, the anti-torture norm was resuscitated by President Obama in 2009 when, as one of his first official acts as chief executive, he moved to prohibit cruel, inhuman, and degrading treatment of detainees. I write here about the path of decay, whether or not that path is unidirectional, and why previously salient norms no longer seem to govern policy choice among political decision-makers.

This leading anthology contains essays and cases written by some of the most influential figures in legal philosophy, representing the major theoretical positions in the field. Its primary focus is to relate traditional themes of legal philosophy to the concerns of modern society in a way that invigorates the former and illuminates the latter. This classic text is distinguished by its clarity and accessibility, balance of topics, balance of positions on controversial questions, topical relevance, imaginative use of cases and stories, and the inclusion of only lightly edited or untouched legal classics. This revision is distinguished by its inclusion of new material on law and economics, international law, distributive justice, religion and freedom of expression, feminist legal theory, and critical race theory, as well as a greater emphasis on concrete legal problems.

Abstract. Revelations in the United States of secret legal opinions by the Department of Justice, dramatically altering the conventional interpretations of laws governing torture, interrogation, and surveillance, have made the issue of "secret law" newly prominent. The dangers of secret law from the perspective of democratic accountability are clear, and need no elaboration. But distaste for secret law goes beyond questions of democracy. Since Plato, and continuing through such non-democratic thinkers as Bodin and Hobbes, secret law has been seen as a mark of tyranny, inconsistent with the notion of law itself. This raises both theoretical and practical questions. The theoretical questions involve the consistency of secret law with positivist legal theory. In principle, while a legal system as a whole could not be secret, publicity need not be part of the validity criteria for particular laws. The practical questions arise from the fact that secret laws, and secret governmental operations, are a common and often well-accepted aspect of governmental power. This paper argues that the flaw of secret law goes beyond accountability and beyond efficiency to the role that law plays, and can only play, in situating subjects' understanding of themselves in relation to the state. Secret law, as such, is inconsistent with this fundamental claim of the law to orient us in moral and political space, and undermines the claim to legitimacy of the state's rulers.

I argue, contrary to standard claims, that accomplice liability need not be a causal relation. One can be an accomplice to another’s crime without causally contributing to the criminal act of the principal. This is because the acts of aid and encouragement that constitute the basis for accomplice liability typically occur in contexts of under- and over-determination, where causal analysis is confounded. While causation is relevant to justifying accomplice liability in general, only potential causation is necessary in particular cases. I develop this argument through the example of the role of U.S. legal officials in abetting the acts of unlawful interrogation that have taken place since 2001. I also suggest that there may be a limited justification for ex post ratificatory accomplice liability.