“Then shall the world, at long last, say its farewell to arms? That unrealized vision, I know, is as old as arms themselves. Is it necessary to add that today, too, the obstacles are mountainous; that the temptations of violence, including the longing for revenge, power, or loot – or, for that matter, visions of heaven on earth or of mere safety – still grip the imagination; that the quandaries facing the peacemakers confound the best minds; that as old forms of violence exit the historical scene new ones enter; that in many parts of the world growing scarcity and ecological ruin add new desperation to the ancient war of all against all; that one day’s progress unravels the next day; that while in some places nonviolence advances, in others barbarism, including genocide, is unleashed with new vigor and ferocity; that both terror and counterterror are escalating; that the callousness of the rich incites the fury of the poor; that the dream of dominion has fresh allure in the counsels of the powerful; and that hardly a single step toward peace takes place without almost superhuman tenacity and sacrifice, including the supreme sacrifice, made by such heroes as Gandhi, King, Jan Palach, Anwar Sadat, and Yitzhak Rabin, to mention just a few? In downtown Grozny, the Congo jungles, Sierra Leone, Kashmir, Jenin, or Jerusalem, it is difficult to make out, even in the distance, the outlines of a world at peace. I shall contend, nevertheless, that quiet but deep changes, both in the world’s grand architecture and in its molecular processes, have expanded the boundaries of the possible. Arms and man have both changed in ways that, even as they imperil the world as never before, have created a chance for peace that is greater than ever before…”1
In his 2003 book, The Unconquerable World, left-wing writer Jonathan Schell discusses the phenomenon of non-violent action, and its ability to bring an end to war in the world. He reviews the history of modern warfare, from Napoleon to Hiroshima to 9/11. He highlights the successes of notable practitioners of non-violence such as Gandhi, Martin Luther King Jr., and Vaclav Havel in resisting and overcoming political power backed by violence. All these leaders relied on a principle, called a “truth force,” or “living in truth,” by which violent power was rendered inert. Referencing Hannah Arendt, Schell proposes that power is action, and willing cooperation is vastly more powerful than violence. The practitioners of non-violence, by working around the state without directly resisting it, overthrew it.
Schell’s aspiration – that humanity will see an end to war – is as noble as his overall premise is insightful. Schell uses the observation that non-violence has a power of its own to propose that the means to world peace is within our grasp. Unfortunately, in his last chapter, he proposes a structural means for peace that uses shared sovereignty and divided political power to prevent war. He refers to the EU as an example of this sort of structure. It’s hard to find a meaningful difference between his proposal and the multitude of calls for world government since the 19th century, despite Schell’s attempt to imagine something different.
World government represents the most commonly held idea for creating world peace, and to some extent it has been tried in the past. However, it suffers a fatal flaw. As a government, it’s most liberal expression has to be democratic, embracing the majority rule principle. Majority rule relies on the subjective preferences of the majority. This presents a very likely chance that the world government’s policies will alienate the minority. A minority, sufficiently alienated, would reject the “social contract” and rebel against the government. The world is too diverse, large and unruly for such a system to work. And if it did it work it would require severe, persistent repression. No matter how cleverly constitutionally constructed this government is, it would be subject to the same pitfalls. Violence and the state’s prerogatives define the exercise of power in a world where government is the sole means used to provide order. Schell proposes formally integrating the power of non-violence with the state’s violent power. This contrasts completely with Schell’s aspirational vision, and highlights the difficulty social scientists have faced trying to answer the question of peace.
War is the use of violence to exercise power. It plagues mankind because, as of yet, mankind has not developed an alternative and consistent means of exercising power non-violently. I believe that such means can exist, in particular because I’m a libertarian. Throughout Schell’s book, his exploration of the power of non-violence happens upon the surface of insights which are common knowledge in Libertarianism. For example, he marvels at the revelation of Vaclav Havel’s use of the civil society as a meaningful power independent from the state. Libertarians commonly discuss the importance of the civil society and lament the state’s antagonism against it. A thorough application of Libertarian ideas to Schell’s insights can reveal a substantive paradigm for achieving world peace.
In 2015, I was serving as an officer of the United States Air Force, and began to question the moral legitimacy of war. The Unconquerable World was an important catalyst which helped me find clarity about the precise role of violence in world affairs. I eventually concluded that war itself is completely morally illegitimate.
Many concede that war is evil, but uphold it as a necessary evil. The institutions of the modern state, and many of the world’s peoples, believe that war absolutely can be justified morally. I will argue that it cannot. Moreover, I will propose a system of international politics that represents a true alternative to war.
The same logic that must be used to conclude that murder is immoral also proves that war is immoral. The same ethics used by civilization to deal with criminality must also be applied to war. Finally, the natural rights premises of Libertarianism offer a procedural paradigm for ethical and cooperative international action even in the absence of world government.
THE MORAL LOGIC CONCERNING KILLING
Why is it wrong to kill? Many people take for granted the idea that it is wrong to take human life. But why is it wrong? People could embrace moral systems that hold killing or murder to be perfectly legitimate. For example, such a system could say that the highest moral act is to struggle to survive, and those who fail in this struggle should be rightly discarded. War’s moral legitimacy can’t be questioned if the moral logic which says killing is wrong is not clearly understood.
The moral philosophies which prohibit killing are diverse. And yet, it is most likely the case that most human beings consider the unilateral taking of human life – murder – to be a moral crime. I will present a few moral paradigms and how they construct a prohibition against taking human life. I will then offer a construction of my own which borrows from Libertarian philosophy.
A common source of moral thinking for many people in the West is the tradition of the Christian religion. The simplest way to explain how religion prohibits killing is to say that it is God who creates life, and therefore it is only God who has the right to take it away. Christianity, specifically, believes in notions of original sin, and salvation by grace. This means that all people are considered sinners – being a lousy person doesn’t make one less deserving of life because according to the Christian paradigm we are all infinitely lousy. Also, since Christians believe that God gave up the life of His Son for mankind, they hold that the human life derives its value from a source which transcends the demands of justice. Life itself is more sacred than whatever ambitions mortal men possess. While this construction is based on dogma, it has metaphorical implications. There is something about life itself that is transcendental. It has a universal quality and its value is above all human endeavor.
Ayn Rand used a logic based approach to morality. She spoke out against the use of physical violence, which includes the aggressive taking of life. She said:
“To interpose the threat of physical destruction between a man and his perception of reality, is to negate and paralyze his means of survival; to force him to act against his own judgment, is like forcing him to act against his own sight. Whoever, to whatever purpose or extent, initiates the use of force, is a killer acting on the premise of death in a manner wider than murder: the premise of destroying man’s capacity to live.
“Do not open your mouth to tell me that your mind has convinced you of your right to force my mind. Force and mind are opposites; morality ends where a gun begins. When you declare that men are irrational animals and propose to treat them as such, you define thereby your own character and can no longer claim the sanction of reason—as no advocate of contradictions can claim it. There can be no “right” to destroy the source of rights, the only means of judging right and wrong: the mind.”2
Ayn Rand frames life in terms of the “capacity to live”. This treats life as a complex construct, rather than a mere factual phenomenon. Her concept of life includes notions of purpose, and means to achieve that purpose. That is, the notion of life – the thing extinguished by killing – is more than just breathing. The exercise of discovering moral laws, and also of acting upon them, requires the consistent application of this construct.
When Rand’s concept is combined with the Christian perspective, a bigger picture emerges. Both moral constructions rely on the existence of a higher principle which enables purposeful moral action, which I will call: life itself. According to religion, the ability to act morally or immorally depends on God’s gift of life, and so to act against that gift is to repudiate action itself. With Rand’s “mind”, violence is regarded as contradictory to the means which enable human life. Both constructions propose that moral action itself must presuppose the value of life, and for that reason killing – as a deliberate act and choice – is an inconsistent and therefore immoral act.
In contrast, there are different ways to construct a prohibition against killing. One could rely on the logic of the categorical imperative. This is the idea that one should live according to principles which, if applied universally, would still be sound and preferable. If a person seeks to prohibit all people anywhere from being morally permitted to kill them, they choose to accept a moral law that says killing is universally wrong. This logic fails on sociological grounds.
People organize into social classes specifically to get around this logic. They create distinctions where few to no natural distinctions exist (such as between the Hutus and Tutsis of Rwanda). They do this to create different moral categories for different people. This is how white Americans in the 18>th> century could claim that they supported the freedom of all men, but of course not that of black slaves. African slaves were considered to be a different type of man. A form of this can be seen in the de facto morality of the American Empire, where many Americans are happy to support wars in places they’ll never visit, which contribute to the deaths of people who are fundamentally culturally, or racially different from them.
The logic of utilitarianism, another moral paradigm, suffers from a similar flaw. Utilitarianism says that whatever is the greatest good for the greatest number of people ought to be what is considered moral. However, this requires someone to define on a contingent basis what the greater good actually is. It’s quite easy to declare that the lives of the many take precedence over the lives of the few, and to discard those lives. Consider any single practical instance of communist politics for an example of the pitfalls associated with this moral paradigm.
I will use logic similar to the Christian and Randian constructions, which also incorporates some of Ludwig Von Mises’s praxeological reasoning, to construct a precise reason why taking life should be considered immoral. Inasmuch as my moral theory is novel, it was created with a critique of the state’s logic justifying war in mind. I call it moral action theory.
Moral action is purposeful action, or human action. In contrast, amoral action is action devoid of choice. A tree acts upon the matter which surrounds it. A tree grows. But a tree only acts in a manner consistent with its basic programming. It doesn’t make choices. Moral action is activity that affects the world based on the principle of choice. Moral action presupposes certain axioms.
First, humans act – they select one alternative from among many. Morality is a moot point without an actor, and without choices. Law is meaningless if it can’t constrain an actor to a prescribed set of choices from amongst a larger set.
Second, some attribute of the actor determines which alternative they’ll pick. I will label this attribute: character. A person’s character is the set of internal processes, which may or may not be logical, may or may not be affected by moral thinking, may or may not be influenced by law, but which ultimately will affect what choice they make. Whether people act morally or not, or even have free will, is not axiomatic. But, the fact that somehow some process results in a choice being made is axiomatic.
Third, morality can meaningfully alter or affect character. Some philosophers argue that free will is an illusion and that subconscious deterministic calculations affect our choices. Whether or not free will exists, however it is defined, the question is whether introducing the logic of morality to the mind can affect whatever outcomes are produced by the mind. I hold that morality matters as an axiomatic principle, otherwise we couldn’t have law, or for that matter government. We couldn’t have this discussion, if ideas couldn’t affect our choice process.
In summary, morality requires that humans presented with a set of alternatives will proceed into a specific action (a “choice”) based on something intrinsic (“character”), and that moral philosophy or law can meaningfully alter or affect character and therefore the choices humans make. We can think of choice as a link between character and outcome. This implies a phenomenon we can label “purpose”. Purpose is the set of outcomes preferred by an actor, an aspect of character. Choice also requires mutually exclusive outcomes. These are what we call alternatives, and having a preference is the definition of choosing.
Morality’s first principle is the ordering of alternatives such that they exist in a hierarchy. Some choices are prioritized above others, and vast sets of preferences are dependent on the realization of prioritized, first order preferences. Character is the product of the organization of preferences hierarchically. Purpose is the preservation and/or refinement of character. Morality is a prescription which coordinates preferences and frames them relative to an ideal.
In this framework, the highest purpose must be life. That is, the highest preference has to be the continuation of the ability to choose and act. To repudiate life is to repudiate action. To kill is to deny to someone else the right to act with moral purpose.
However, why does that matter? Why can’t I prefer my life over the lives of everyone else? Couldn’t I possess a hierarchy of preferences and still conclude that my life is at the top, just a bit higher than the lives of everyone else? It is true that we have the physical ability to act upon such a preference, but I contend that such an action is not moral.
The significance of whether something is moral in the abstract involves a certain amount of nuance. Morality can be thought of as a tool, and so considerations about why morality matters have to incorporate notions of when and how that tool will be used. For example, law relies on consistent moral logic. There’s no requirement to rely on law to settle disputes, but civilization prefers law to conflict because it’s a cheaper alternative.
Morality must represent consistent and perfect logic, to serve justice as an objective alternative to the subjective preferences asserted through conflict. What logic and consistency say about life matters. There is a reason why a moral actor cannot simply hold their life above all others.
Does life have meaning? Why does anything matter? Why isn’t everything arbitrary? Don’t we all die someday? Won’t everything we ever build eventually be washed away into cosmic dust? There’s no clear answer to this question. Indeed, this specific question and the quest for its answer is the purpose of religion itself.
I contend that a specific concept is vitally necessary in order for an actor, with their hierarchy of preferences at the foundation of their character, to grant any meaning to any actions whatsoever. Moral actors must accept the principle of ultimate meaning – that something about life is ultimately meaningful – in order to take any action at all. This meaning can be found transcendentally, but it can also be found in hedonism, sensation, or instinct. It can also be neglected. However, the abstract notion of ultimate meaning is a logical prerequisite for moral action.
The importance of the logic of meaning can be explained in a different way. If I asked you, “Why does life or anything else matter?” I could go on to falsify any response you could give to that answer. For example, do you care about your children? Someday they’ll die, inevitably, and after many years any and all of the happiness they will ever experience will be past and forgotten. Any answer to this question must rely on something ineffable. The answers most people would give might be: “Love,” or, “Faith,” or, “Family,” or, “Ambition.” None of these have a logically identifiable source. They all require the moral actor himself to unilaterally accept their validity and central importance. It may be the case that life actually is arbitrary and meaningless. It may also be the case that God exists and life has transcendental meaning. What matters, in moral terms, is that all actors implicitly accept the meaningfulness of life by choosing to act. Action is a choice which declares that, contrary to ontological appearances, the abstract principle of life has meaning.
The top of an actor’s hierarchy of preferences, then, must include the following: that life is the highest priority, and that it has abstract meaning (or that it is inherently good). The reason why the apex of moral preferences must be life-in-the-abstract is because morality itself is a process of abstraction and logic. Why do humans eat? Usually, to gratify appetite. Yet, people with budget constraints will create meal plans that include foods which don’t really taste that good, or might not even be that satisfying, in order to stay alive. People frequently diet, denying themselves the gratification of appetite. In these cases, people are using abstract reasoning to make choices based on their hierarchy of preferences. This is what morality is: abstract logic necessary for purposeful human action. None of that action “makes sense,” if life itself – action itself – doesn’t resolve to some inherent abstract meaning.
If life is intrinsically meaningful, then a repudiation of any life is a repudiation of meaning. I would argue that the guilt associated with killing is a natural consequence of a basic subconscious understanding of this simple logical truth. If it’s “okay” to kill, then where is the meaning in life? This is the beginning of how killing and war warp morality, moral logic, twist national characters, and destroy lives.
You can kill in a fit of animal rage, or confusion, or social pressure. You cannot kill as a purposeful morally substantive act, unless you have a broken and confused character. Naturally, it is possible to have a broken and confused character. It is almost certainly the case that much of human action is driven by instinct and social pressure. But no man ever designed an airplane, or discovered Penicillin by instinct.
Under moral action theory, when an act is deemed immoral it is because of the need for logical consistency. It is not moral absolutism, saying that it’s God or some other supernatural moral agent that deems some actions as wrong. There aren’t angels watching, standing judgment, ready to swing fiery swords to make sure we all behave. Instead, morality provides an objective means of identifying inconsistency.
Who cares about inconsistencies? No one is obligated to be moral. Morality, instead, is a basis for objective ethics. This is the set of norms of social behavior that rely on neutral and objective principles rather than the subjective preferences of rulers or appointed judges. Societies are not obligated to use objective ethical logic in their laws. However, any society which fails to integrate consistent moral principles into its laws will necessarily have to use violence and conflict to resolve disputes, which is very costly. As economies advance, the cost of conflict greatly exceeds the costs of compromise. Law is a substitute good for conflict over the issue of dispute resolution.
The value of objective ethics can be seen through a strategic paradigm. Society is complex and the product of actors organizing their behavior towards a common end. That effort to organize, call it a political process, is where power is exercised. A powerful entity is one which can rally many other entities towards its preferred outcomes, by force or persuasion.
Objective truths are principles which can be derived from nature or common sense. Entities can arrive at these conclusions independently by exercising logic. Independent entities can organize according to these principles. Since these principles don’t rely on any particular authority, they permit organized behavior without the need for centralized political power. This strongly resists the ability of centralized power to be exercised, and consequently eliminates the abuses associated with centralize power structures. Objective moral law gives moral actors ways of resolving disputes consistently, without a dependence on higher authority.
Though I believe that most people couldn’t easily explain why killing is wrong, they take for granted that it is. I also think that on some intuitive level people perceive the inherent meaningfulness of life in the abstract, even if they can’t articulate the logic of it. They can easily perceive its intrinsic value as a cornerstone of their moral thinking. When instinct, passion, and so forth blow abstract thinking by the wayside, this isn’t an invalidation of morality. Willful rejection of that which is moral is called a “flaw of character”. One of morality’s purposes is to make corrections to character.
I have demonstrated why killing should be considered to be wrong. Consistent with Christian and other systems of ethics, my construction shows that taking life as a choice is inconsistent with the idea of moral action. To take life is to invalidate life, which in turn invalidates action itself.
In order to justify killing as a purposeful and morally substantive action, one must employ ethical logic that is consistent with the basic prohibition against killing. In the next section I will review exactly when and how it could be justified to take life, specifically when it comes to the question of self-defense.
IS WAR MORAL?
The moral legitimacy of war depends on the philosophical justification for using lethal force in self-defense. If self-defense is to be taken to its lethal extreme then a sound and consistent rationale for breaking the moral prohibition against killing must be offered. There is room for the moral use of lethal self-defense, but the conditions which justify it are very narrow. The logic used for making an exception to the moral prohibition against killing must be established in order to define the precise limits surrounding the use lethal self-defensive force. I will argue that war transgresses these limits.
A helpful starting point for this discussion comes from a US Army ethicist. Lieutenant Colonel Pete Kliner is a US Army officer with experience deployed in combat environments, and whose career led to a teaching assignment at West Point. He developed and offered an explanation for when lethal self-defensive force is justified, particularly during war. Before I present his argument, I want to mention that I will be limiting this discussion to the question of lethal force. The same pattern of logic I use can be applied to judge the ethics surrounding the use of non-lethal force, but looking at the question of lethality alone is sufficient to pass judgment on the question of war’s morality.
The following is from LTC Kliner’s personal blog ,a version of which made it into Army Magazine. (disclaimer: Kliner’s views do not represent the official views of the DoD, US Army, or West Point, moreover in my opinion he is a sincere professional trying to pursue his vision for what’s right in the world):
“Rights are intangible, so it helps to use a concrete “visual” when we think about them. Imagine, if you will, the “right not to be killed” as a bubble that surrounds each person (see Figure 1). Each of us possesses the right that no one else “violate our bubble” and harm us…
“Yet we also know that someone can forfeit that right—can “burst his own bubble.” A right is a right as long as it does not violate the more fundamental right of another. Thus, we recognize that if a person intentionally violates (or threatens to violate) the bubble of another, he forfeits his own bubble…
“It’s important to note that a just defender does not forfeit his rights when he attacks an unjust aggressor, as in the scenario above…
“When fighting in a just war, a soldier is a defender. Soldiers continue to possess their bubbles as long as they direct violence only at those who have already forfeited their right not to be killed. Enemy combatants are the ones who have “lost their bubbles” by threatening the rights of those who possess them—non-combatants and/or our soldiers. Even if they are not personally threatening anyone at the time we engage them, combatants for an unjust cause are still morally permissible targets because they are operating as part of a larger organism—the unjust threat. There is a good reason why military uniforms include both the individual’s name and the organization/state in whose name he acts; soldiers act as both individuals and as elements of a collective.
“Consistent with the rules of war, an aggressor’s forfeiture of rights is not permanent. The default setting for a human being is to possess the right not to be killed, so when a person is no longer a threat, he regains his right, his bubble. What constitutes a “threat”? A threat is someone who possesses both the intent and the capability to violate someone’s right not to be killed (see Figure 4). As soon as a person no longer has the intent or the capability to violate the bubble of another, he regains his own bubble and should not be killed. This is why it is morally wrong to kill a detainee or an incapacitated insurgent.”3
I have abbreviated the article to its key elements, but I don’t believe I’ve left out any important context. This ethical construction of the right to use lethal force in self-defense is the clearest and simplest I have encountered. It was also important to me as I explored the moral issues associated with war during my time as a DoD uniformed member.
This construction introduces the basic ethical logic which defends the use of lethal force for self-defense. In my opinion, it also exposes the fatal flaw of using this logic to defend war and the state’s use of violence in pursuit of its political aims. We can pinpoint exactly when and how a person loses their “bubble” of rights by relying on my previous discussion of why killing itself is wrong. Knowing this point, we can examine which situations constitute an actual loss of that bubble, and which don’t. Before this is done, however, the surface failings of Kliner’s construction are easily perceptible. These failings frame key problems with the attempt to legitimize war.
Referencing the article, there’s a key statement that belies the true nature of war and might question its fundamental legitimacy:
“Combatants for an unjust cause are still morally permissible targets because they are operating as part of a larger organism – the unjust threat… soldiers act as both individuals and as elements of a collective.”> 3
Two ideas stand out in this quotation. First, the unclear notion of justice. What is a just or unjust threat? Who decides this? Of course, the answer is the warring political authority. I reject this answer, but couldn’t one argue that this is just the nature of the world? The state is society’s pragmatic solution to the problem of dispute resolution. People disagree, and by uniting within a political society under the dominion of a political authority, find peaceful resolution to disagreements. I contend that this represents only a contemporary and expedient answer. There are other theoretical and potential ways of resolving disputes in society. Whether or not these alternatives are ever implemented does not validate the morality of using the state as a catch-all servicer of justice. An objective and politically independent construction of detailed ethical and legal premises concerning the right to life and how to deal with violations of that right is possible. A monolithic political authority is not required to define what is moral or not.
The second flaw apparent in the quotation is the notion of assigning the logic of rights – which must apply to individuals only – and attempting to extend it to the collective. There’s a very clear reason why someone defending the ethical validity of war would do this. I believe what the principle of collective guilt is really trying to accomplish is related to the notion of the state itself as an entity which is jealous of the prerogatives of individuals.
There is an ethical argument that says that the state grants people their rights. The “bubble” of rights exists for a reason, as Kliner says earlier in his article,
“>Our starting point in justifying wartime killing is the conviction that every person possesses the “right not to be killed.” Some would call this a “right to life,” but we really do not have such a right. If we are struck and killed by lightning or die of cancer, after all, our rights have not been violated. Why not? Because a rights claim is made vis-à-vis another person. No one has wronged us when we are stuck by lightning or develop cancer. Similarly, we do not have a right to speech; instead, we have a right that others not prevent us from speaking on certain topics. In this way, rights claims say something about what others should not do to us.
“>The ultimate source of our human rights is arguable. Some would say God, others cite human reason, still others refer to implicit social contracts or even man-made laws. But I hope we can agree that all persons do possess rights—whatever their source—and that the most fundamental and basic right is the right not to be killed, followed closely by the right not to be enslaved.”
Kliner fails to identify the source of rights in his attempt to justify killing in war. This is a warning flag superficially, but through deeper inspection I would argue that he has actually identified the source of rights implicitly. He clearly is making a pragmatic concession to the fact that not everyone shares the same opinion about ethics, but then he proceeds to draw ethical conclusions anyway. Because the source of rights is not explicitly identified, this creates a logical vacuum which has to be filled somehow. That vacuum will be filled by whatever follows in the argumentation. Kliner references social contract theory, and the law (of the state). This represents a validation of both ideas, a grant of legitimacy, which sets them up as potential answers to the unanswered question, among others. Finally, Kliner places agents of the state into positions to grant or revoke rights “bubbles” based on collective identity.
Supposedly, the US government can only go to war and deem another uniformed collective an enemy (thereby unilaterally revoking the right to life of an entire group of individuals) on the basis of justice. However, justice in this case will never be more that whatever the US government’s official political perspective is. And what process was used to make that judgment? Where is justice weighed in the foreign policy process of the US government? Congress has the unilateral right to declare war as it deems necessary. The only check against this is the martial strength of an enemy. The President himself has broad war powers which can be exercise in spite of Congress.
I don’t think Kliner is being disingenuous in his ethical framework. His purpose is sincere: to rationalize the morality of his profession’s practice: war. The major flaw of this premise is that it might be the case that actually, war is not morally legitimate.
Here is what I think Kliner’s ethical construction – by its omissions and inferences – is saying: that the state grants rights, and is therefore morally entitled to revoke them. There is no clear source of rights that can be identified other than a vague “general will” that they are important. This translates, via the social contract, into the state which is established to defend these rights – thereby creating them. The “bubble” of a right to life is a gift of the state, and it wholly within the state’s prerogative to revoke this bubble.
The state’s moral authority to go to war rests with unidentified justice conclusions which in context have to be the political prerogatives of the state. Justice is invoked in the abstract, but no explicit and clear source of rights or justice is mentioned. The state’s own perspective on whether or how it represents the social contract’s general will is the source of justice.
Most US legal, academic, government, or military officials might concur with this ethical construction as I have just framed it. In contrast to my own opinion, they’d laud this interpretation as civilized and precise. But they’d probably add this: because protecting rights is a general will of Americans, it is structurally embedded into the government via the Constitution.
Yes, they’d say, the government grants rights, but we’ve created a government that must protect them or cease to exist. This principle makes the US government just, and therefore its enemies unjust. It’s only natural for the US to have all the ethical standing in the world to take the lives of enemy combatants. Whether war is moral or immoral, the United States of America has a special right to go to war in the world, and a special duty to win at all costs, because we are just.
This is a deeply troubling premise. It can be blamed on many things, maybe the philosophical expediency of a past era as it grappled with the emergence of modern knowledge, still plagued by the religiosity and superstitions of its time, corrupted by systemic class incentives and the prerogatives of oligarchy. But regardless, it’s provably wrong. There is a precise reason why we cannot say that the state grants rights, and moreover why the state has no right to unilaterally revoke them. Kliner’s use of bubbles to justify killing in war necessarily invests the state with moral authority it doesn’t deserve. To prove this I have to reference the moral logic which prohibits killing.
I will now invoke moral action theory. It’s immoral to kill: To take life is to invalidate life. To invalidate life is to invalidate action, since action depends first and foremost on life. Taking life is an action. Therefore, killing as a deliberate choice is morally contradictory.
What does it matter, however, if something is immoral in the abstract? Simple logic says that we must use force defensively or else aggression would rule the earth. This seems self-evident. But if killing is morally wrong, how do you defend against killers? If it’s for self-defense, can killing be justified?
The “bubble” theory provides the basic formula for self-defense, superficially. Right to life exists, but when an aggressor transgresses against this right of another, they lose their “bubble”, or own right to life. However, there’s a more precise way to approach this conclusion than relying on bubbles and the authority of the state.
Imagine a situation where an aggressor is using lethal force. The victim will die. The only way to prevent this clear moral crime is for the defender to use force, which let’s say will inevitably be lethal given the circumstances. The aggressor will die. In this situation, all alternatives involve the loss of life. That is, an action that repudiates life will occur no matter what. The question then isn’t what will prevent killing, but rather, all being equal, which alternative on the balance is more moral?
Morality is a systematic logic which provides clarity about justice. Justice does not seek perfection. It seeks balance. Justice implies that among a set of alternatives, some are preferable. Morality’s purpose is to be as objective and logically clear as possible, so that justice can be consistent despite the subjectivity of those in society who service justice (courts, police, what-have-you). This is because justice is a less costly means of resolving disputes than the alternative: conflict. There is no requirement that the world conform to perfect morality. Instead, justice is determined by weighing a set of circumstances, which may be far from ideal, against perfect moral logic. If morality can’t be completely logically consistent and unchanging, it can’t serve as a basis for objective justice. Because morality is logically consistent, it can be derived independent of political authority. The state’s will doesn’t establish what is or isn’t moral. The state is only a servicer of justice, and inasmuch as it also codifies morality into law it does so by appealing to moral logic, and it does so for expediency sake. The state might provide the service of creating law, but it creates the law using moral logic, not arbitrary whim. It’s worth pointing out that the DoD in America is essentially a New Deal institution, and that the New Deal was America’s official rejection of the philosophy of individual rights.
In the situation where an aggressor acts to kill, he has already repudiated life through this action. This does not revoke the aggressor’s right to life. A person might not respect life, but this does not overthrow morality. Short of God coming down and granting an explicit exception, life remains valuable and meaningful in the abstract. Nowhere is there any logic that says that certain discrete actions cause life to lose its meaning.
Evil deeds don’t cancel out morality. The victim or defender is still subject to moral laws, and unless they too choose to act immorally, they must obey the prohibition against killing. There is no “bubble”, because the possessor of rights is not the granter of rights, and he cannot overturn his own rights.
The Christian moral paradigm, for those who believe it, states this clearly. God created life, moreover Jesus Christ died to overthrow sin. This means that we, as equally awful sinners, all deserve grace. God chooses to hold our lives as sacred and there’s nothing we can do about it. That’s why, under Christianity, it’s immoral to kill. No mortal has a right to revoke someone’s “bubble”.
In secular terms, a similar logic applies. If we act, we are saying that life has some meaning. If life has meaning, we cannot willingly act to take it without invalidating our own action. This is to say that the right to life comes from something that is universal and abstract. Practically speaking, all moral actors are the granters of rights, by subordinating their actions to morality (which is helped along by having well developed services in the polity or economy that provide justice).
We can’t say that we grant the defender the right to kill by permitting him to repudiate the life of the aggressor. Instead, we grant him the right to repudiate the act of aggression. When all else is equal and killing is inevitable, on the balance the defender has the moral prerogative. Again, he isn’t repudiating the killer’s life, he’s repudiating the act of killing. And the use of lethal force in particular is justified by the circumstance of killing being inevitable, in other words, by the principle of proportionality. The act of self-defense is against an act of aggression, which will happen to end the life of the aggressor in the process as an unavoidable side-effect.
Killing in self-defense requires the application of nuance to the interaction between justice and morality. Morality, as I have stated, is a tool. One of its uses is to establish clear patterns of justice. A person can justly kill in self-defense and still endure moral injury. They, depending on their beliefs about life and meaning, might seek forgiveness from God for their act. But contrary to morality – which is abstract and can be applied completely personally – ethics deals with social norms, and is concerned with preserving justice. Killing in self-defense can be ethically justified.
If self-defensive killing is ethically justified, it is the justice of the situation which permits the exception to normal moral logic. It is not a matter of expediency leading to a suspension of morality. War represents the latter principle. War is the activity by which the state attempts to expand its political power by force. Because the state subordinates justice and morality to its political power, war represents a circumstance where justice and morality must be partially suspended. Moral logic isn’t taken into account, it’s discarded.
There is a contrast between justice and war. Justice can permit the use of lethal self-defense, but only circumstantially. These circumstances are related to the preservation of moral logic under justice. War represents the suspension of moral logic, shelving it to permit battle, and unboxing it once the dust settles.
Justice requires that moral logic remain consistent. The right to use lethal self-defensive force is subject to a very unique set of circumstances. The “stars have to align” for moral consistency to allow killing. This unique set of circumstances can be reduced to three specific principles. These are: provable harm, proportionality, and subordination to a due process of law.
First: provable harm. The aggressor’s act must truly be an act that repudiates life. There is a lot of legal and moral nuance contained in this principle. Some actions constitute clear threats against life, others have to be interpreted as such. For example, pointing a gun at someone doesn’t mean you intend to pull the trigger. It would be too late to for a defender to stop the action, however, once the trigger is pulled. So, the act of pointing a gun at someone is established through social norms as an act which threatens life which can be understood as morally equivalent to taking life. On the other hand, different states in the US have slightly different standards for the use of self-defensive force. Some require the defending parties to make an attempt to flee. Others have a stand-your-ground doctrine which places the moral burden on the potential aggressor. Legal and social norms surround the idea of provable harm, but they all aim to reach the same condition. So long as society understands these norms ahead of time, any person making a lethal threat would reasonably be expected to know that their act would be interpreted that way. This principle can be stretched and abused, and there’s an entire legal industry for that reason. Nothing about this repudiates the basic principle that the discrete threat of lethal harm must be reasonably clearly established before lethal self-defense could be justified.
Second: there must be proportionality. Killing is never moral. However, the unique set of circumstances which juxtapose an act of inevitably lethal aggression against inevitably lethal defensive force qualifies the immorality of killing. This presupposes discrete actions by individuals or sets of individuals. Thus, ethically permissible killing relies intrinsically on circumstantial proportionality.
Finally: the preservation of morality requires a due process of moral litigation. There are many reasons why it would be expedient for a person, organization, or political entity to take someone’s life. Things of consequence in human society are the product of human action, and to kill is to end all action. The power to kill is the power to manage consequences. By default, morality must prohibit killing as an absolute principle. Therefore, the justification for lethal self-defensive force must be an extraordinary exception. A killer, for whatever reason, has committed a moral transgression. They must then prove that this killing was circumstantially justified (from the perspective of morality – I’m not referring to legal procedures nor am I dealing with the issue of “innocent until proven guilty”).
There is a moral hierarchy which justice must take into account. First, we prohibit killing. Then, we make an exception. The second step does not abolish the first, but rather modifies it taking its full logic into account. Again, the alternative is that we prohibit killing until we choose to stop prohibiting it, or in other words, fight a war.
To justify the use of lethal self-defensive force you cannot abolish the original prohibition on killing. It must be maintained and then in context the defensive act is justified. This structurally requires a due process of law. I don’t mean any particular legal system (such as what we understand due process to mean in America). Instead, what matters is mere ability to litigate a discrete act of killing. To not do so is to abolish or ignore morality. If self-defense can’t be litigated, then it’s not moral.
This is in stark contrast to the way the state treats war.
In war, there is no litigation. The state’s implicit perspective is that it is the granter of rights and establisher of morality through its justice. Its political squabbles with foreign powers or domestic challengers outside its chain of command represent a breakdown of the state’s ability to grant rights through its structure. Thus, the state chooses to regard these circumstances as – in my opinion – morality free zones.
It’s true that modern states have feigned to limit these morality free zones as much as possible under a paradigm known as the “law of armed conflict”. But within the parameters of this law is the creation of an open battlefield, in which indiscriminate killing is permissible. As much as each faction of a war would like to invoke notions of collective guilt or justice (already a dubious proposition), the fact is that the determining factor of “justice” on the battlefield, completely codified into the law of armed conflict, is that justice belongs to the victor. Or, might makes right.
The British, in a sad attempt to paper over this reality, and the brutal reality of the naked power and exploitation involved in establishing their empire, created an inversion: “right makes might.” A saying attributed to Benjamin Franklin plays on this mentality. Regarding British outrage over the colonial insurrection, Franklin is thought to have sarcastically admitted the moral failing of the Boston rebel fighters who drove the British from Boston Harbor: “The militias forget the fundamental rule of civilized warfare: always let the British win.”
Likewise, the American military professional who struggles to defend the morality of the Empire premises the notion of morality in war on the idea that the “good guys” will win. It is good for America to fight because fighting means freedom will live (but what if we lose?). Even just war theory incorporates such a principle, saying that war can’t be justified if there’s no possibility of victory.
All of this is just a way of saying that war is nothing other than the expedient suspension of morality. That may be fine, there’s nothing wrong with pragmatism per se. It doesn’t excuse us from admitting that war is immoral, or from the moral duty to develop an alternative. Claiming that there simply isn’t one is no excuse. This is easily compared to slavery.
As slavery came to its end in America, a common argument was that it would be impossible to allow all black slaves to be freed all at once. The French colony of Saint Domingue (now Haiti) saw a slave uprising in 1791 which led to the overthrow of slavery there. This insurrection of black slaves against their white masters led to a mass killing of French whites in the country. This slaughter terrified whites in the American South. Irrespective of some of their contemporaries’ racist theories about black intelligence or tendency to violence, most Americans during the mid-1800s believed that the conditions of slavery – the lack of education, the mistreatment, and the intergenerational cultural habits that resulted from this – would not allow blacks to successfully integrate into free American society. While some Southern racist intellectuals began to defend slavery as a moral necessity towards the institution’s end, most Americans and many Southerners conceded that the practice was immoral. The arguments which defended the institution relied on expediency and pragmatism to defend it, not morality.
Some might contend, in this context, that it took war to end slavery. However, I would argue that the war aims of the Union were political and economic. Ending slavery was explicitly not a goal of the effort at first. In the chaos of war and its aftermath, the effort to reassert order, to institute law, and to bring meaning to the conflict resulted in a consensus that slavery must end.
Any number of outcomes was possible at the war’s end, given the many issues that led to the war. There was an issue of a nationalist economic platform. Also, that of Southern political reforms. Slavery didn’t have to end, and in certain ways de facto slavery didn’t end (with widespread black codes and Jim Crow laws). Nevertheless, the fact of slavery’s status as a clearly recognized moral crime meant that it couldn’t, as a formal institution, endure the change induced by the conflict. Morality matters in a civilized society.
Expediency serves the institutional framework of the day, but morality shapes the direction of change. The problem is that, contemporarily, many people believe that war can be justified on a moral basis. The DoD believes that war is fundamentally ethical.
I’d argue that the law of armed conflict is both unethical, and immoral. It is no law at all. All of the problems that we have traditionally solved by war must be solved in the same way we solve violent crime: through a due process of justice.
Consider a battlefield where the soldiers are in a standoff. One fires, and their bullet lands near you. To defend yourself, you fire back. This goes astray and lands near another, they then fire back to your side. The situation begins with clear notions of proportionality and self-defense. However, after a short time a clear accounting of who is firing at whom becomes impossible. The only remaining moral principle is “kinetics”. This is the physical, violent defeat of the other “team.” That is, the physical prevention of their ability to fire (the severe maiming of the other side to the point of their physical inability to fight). Inasmuch as people form teams, these are political acts. Inasmuch as battles comprise a consistent set of actions towards a discrete set of goals, this represents a political prerogative. Indiscriminate killing in this context is entirely immoral. War is the physical maiming of human beings, the willful destruction of life, to achieve someone’s power prerogative.
There doesn’t seem to be any way to discuss war as a moral construct, from the official perspective, beyond admitting that it represents the expedient suspension of morality until a political conflict is settled. War is worse than that, though. It’s the subordination of morality to the state and its purposes.
Imagine three different ways to qualify war. First, there’s a principled opposition to all war, which for the sake of simplicity and this argument I’ll equate with my idea. This is that all acts of violence have to at least be subject to some sort of litigation of discrete cause and effect for every bullet fired, invoking precedent, provable harm, proportionality, and due process.
Second, there’s the idea of justifying armed conflict only in pure self-defense. This is the idea that one “team” chooses to use war to achieve a political aim, and the other has organized only to oppose this aggression.
Finally, there is the notion of war as policy, where all sides, or at least “your” side, is using armed conflict to achieve a desired political outcome.
I could countenance the argument that the second paradigm of pure self-defense might be tolerable as a stepping stone to the first paradigm, but the third paradigm that rationalizes war as politics by other means is completely immoral. As far as I know, only Japan comes close to the second, with strong qualifications. But the UN, post-war “ban on aggressive wars” world order still permits selective war as a means to “defensive security”. That is, war as an aggressive political act is morally justified so long as the “world community” accepts it as necessary for long term world security. In any event, the major powers who enforce the UN world order are completely hypocritical. This hypocrisy can best be explained by pointing out that war itself is a moral black hole, and it can’t be contained by process. Amorality is home of society’s worst villains, and it’s only natural that they would scramble to live there. That is, it’s only natural that the rats and weasels of political corruption would universally praise and desire permanent war. Moral consistency can only be achieved once war is formally abolished.
What the state is really doing when it tries to rationalize its right to go to war is that the state would like to have the prerogative of being the granter of rights. It would like to interpose itself between man and God, between society and morality. What is the benefit of this position? Opportunities for graft.
War is profitable, and as politics by other means it can sometimes be an effective tool to support the prerogatives of powerful factions and classes. And frankly, this is what will happen always no matter how “constitutional” or “just” the country, until war itself is rejected as fundamentally immoral, and armed conflict is subordinated to the same law as everything else.
The state can’t grant bubbles of rights because rights are derived from moral logic, which is universal and objective. Morality establishes justice by applying logical abstractions to discrete situations. If justice is dependent on the whims of the state, it is overthrown and invalidated. If an individual’s discrete actions don’t matter, and their rights are contingent upon their membership in a collective, then morality itself is invalidated. Morality applies to moral action, which requires individual moral actors. There’s no collective morality, only the interposition of the state between individuals and justice – which it does for its own benefit.
Defending the state’s right to go to war is like defending the King’s right to absolute political authority. The state argues that it can kill enemy soldiers indiscriminately because it is necessary to establish the system of justice that grants rights in the first place. A King argues that he can order anyone to be killed, if it’s necessary, because God gave him a divine right to rule. American politics utterly rejects the latter idea, and it must also reject the former.
War is indiscriminate killing for expediency’s sake. It is the state’s prerogatives asserted in preference to human life. It requires the suspension of justice. It stands in contrast to the ethical justification for using lethal self-defensive force. It is not morally legitimate.
Consider the paradigm I’m advocating. What would it mean for the Army to conduct its business by subjecting all acts of killing to a process of litigation? It would mean some meaningful and drastic differences from how war functions today.
First, any act the Army takes would have to be subject to due process of law. So, in other words, something similar to a warrant system would be necessary for the Army to act legally and morally. Perhaps the Army could raid a town full of “terrorists” in the middle east apprehending enemy combatants. But, some sort of provable harm needs to be established. The Army would have to bring evidence to a judge with some sort of sense of who the individual culprits are, what their specific crimes are, what sort of punishment is proportional, and what sort of actions the Army is justified in taking. This is similar to what police have to do.
It’s entirely possible for a squad of police to engage in a “pitched battle” with a criminal gang. But they have to answer for every discrete action, for every bullet fired, to the greatest extent possible.
It’s true that the question of policing itself isn’t fully answered. The state uses similar logic for the police as it does with the military, qualifying that rejection of police authority can represent a person relinquishing their “bubble” of rights. I’d say that’s not exactly morally right either. Nevertheless, I think one can claim that what the Army does and the legal restrictions it’s subject to differs from the police substantially.
Concerning Iraq and Afghanistan, many American military commentators complain that excessive “Rules of Engagement” procedures during Barack Obama’s presidency, which require soldiers to think twice before killing, put soldiers’ lives at risk. How could the Army, already plagued by “RoE restrictions,” survive under even stricter impositions in places such as Afghanistan and Iraq?
Fundamentally, we have to regard the occupation of these countries as illegitimate. Under the new moral paradigm, such occupations wouldn’t occur. The soldiers, therefore, wouldn’t face the same risks. Yes, rejecting war as immoral means that most of what we call war today could not occur in the first place. Instead, under the new paradigm, a government could reject the law of armed conflict and war as immoral, but still theoretically use force internationally to defend the rights of its subjects. “Pacifism” in this case isn’t inherently “passivity.”
This might seem dubious. How can one government use force in the territory of another government? Wouldn’t that be war, or lead to a political dispute and then war? Why would a government bother following a criminal legal process to deal with those who are subjects of other governments? Doesn’t the Westphalian order say that governments have legal authority over their subjects, relate to other states via diplomacy and war, and outside of that context leave the subjects of other states to the legal systems of those states?
It does, but I’m proposing an alternative. Consider this: the Westphalian system forces states to use war as a means to deal with matters that would represent mere criminality within their own borders, just because they happen beyond their borders. Yes, diplomacy exists, but diplomacy is a softer form of war, as diplomacy treats the prerogatives of the state – or the “Prince” in the Westphalian concept – as absolute. The United States might believe that its own subjects should benefit from a due process of law, but the international order grants the United States the ability to make unilateral judgments to selectively apply these same values or not upon international persons. The Westphalian system is outdated and totally wrong.
Even today, there are legal precedents which reject the logic of the Westphalian system. First of all, foreign subjects who commit crimes overseas are still afforded constitutional protections if they are tried in the US. When it comes to law enforcement, the US federal government is established with certain limits which apply in all cases of the execution of law. War is the exception to this rule. The state has used the loophole of keeping subjects in “constitution free zones” where their legal status is ambiguous, specifically to get around this. “Enemy combatants” plucked from the legal “battlefield” are held in places like Guantanamo Bay so that they never fall under the basic protections offered by the Constitution to all who are prosecuted by the US government. Here the nasty and immoral logic of war is expanded through the use of disingenuous legal technicalities.
There’s also a precedent for subjecting US government international actions something like a due process of law. Ron Paul, former Congressman from Texas, proposed a method of dealing with international terrorism that didn’t require war: letters of marque and reprisal. This is a formal authorization of US agents or other entities to act on behalf of the US government to apprehend foreign enemies and bring them into a legal process which can prosecute them for specific crimes. This is precisely the sort of system I would propose as a substantive alternative to war, although perhaps only an embryo of what I envision.
The “law of armed conflict” is invalid from an objective moral standard. It’s not moral for states to employ it to justify their unjust killing during war. What then can they do about international disputes? I will answer this in the next section, and also explain how to reconcile this approach to the fact that different states are bound to disagree with each other even if they agree upon this method generally as an alternative to war.
AN ALTERNATIVE TO WAR
In order to examine how a state could subject its relationship with international persons and entities to a moral and legal paradigm, consider the United States as the subject of a thought experiment.
Consider how the United States deals with legal and moral problems domestically. The Constitution establishes a government with 3 separate branches, and then limits those branches in terms of their powers and also proscribes them from certain actions with the Bill of Rights. Before a crime is ever committed, the duly elected representatives of the people have to define what a crime is. Moral issues are debated, and an abstract behavioral proscription is made via the passing of a bill into law. Only after the law is passed, then the separate executive branch of the government may apprehend by force those who have violated the law. Finally, the judicial branch oversees a due process of law to determine if the person apprehended by the executive has indeed violated the law passed by the legislature. There are many provisions in this system for ensuring the law is upheld and closely adheres to a neutral and objective standard. Some examples include: the right to an attorney, the need on the part of the executive to obtain a warrant, prohibitions against undue or unusual punishment. Altogether, the government’s ability to use force is greatly constrained by law and reason. Moreover, individual citizens’ ability to use force is subject to the same law and similar constraint.
Contrast this with how the United States deals with foreign enemies. The Constitution grants Congress the right to declare war. Congress may unilaterally conclude that some international actor has acted unfavorably, and declare them to be an enemy. The President then has broad power to apprehend, imprison, maim, even kill this enemy as is more or less necessary to prosecute the war’s objectives. Though voluntary treaty obligations subject this behavior to relatively humane standards, the system itself does not require these restrictions. Even large civilian populations have been legally targeted if it’s the will of the military chain of command and has Presidential approval. While the judiciary might rule on procedural elements, they have no role in evaluating the guilt of an enemy. The enemy didn’t transgress some particular law of Congress which was passed beforehand, but rather invoked Congress’s general ire who instead imposes punishment ex post facto. It’s the Westphalian system, and it grants the US Government the prerogatives of a prince internationally, which prerogatives it does not have domestically.
Imagine how this system would work if applied domestically. In this scenario, Congress authorizes the President to suspend law or declare martial law for a given purpose. Perhaps Congress disapproves of alcohol consumption and many major cities have large populations of alcohol consumers. Martial law is declared, and all alcohol producers, distributers, providers, and consumers are considered the enemy. The President now judges how to deal with this enemy such that the phenomenon of alcohol consumption is eliminated from society. He sends the Army to march into the streets of a city, disrupting everyone’s lives with random inspections. Those caught with alcohol are imprisoned or whipped. Those who resist or attempt to flee are executed on the spot. Once Congress is satisfied that the problem is solved, they revoke martial law. The Supreme Court grants reprieve to some citizens imprisoned during the army’s withdrawal, for procedural reasons – since technically at that point the “war” had officially ended.
A domestic application of war powers would be a ridiculous nightmare, and US jurisprudence has numerous protections against this from the 3rd amendment to the Posse Comitatus Act. However, the fact that the US Constitution is designed to establish a government that works the way it does – with checks and balances – is precisely because that way of doing things is more legally and morally correct. What if the spirit of the Constitution domestically was applied in the international realm?
From the perspective of political libertarians, the state does not create rights or morality. They pre-exist, and the state is a tool created by the people as one among many possible means of defending these rights and upholding morality. This is clearly embedded deep in the American conception of government from before 1776. American constitutionalism relies less so on social contract theory. The American state doesn’t emerge from the mists like Venus, all-powerful and beautiful. The American state is a mundane creation with a specific purpose, and it has the ability to transgress the limits of its founding and be worthy of dissolution.
Government is a tool made to implement a due process of law to uphold rights and morality. It’s a service provider. Why would a people instituting such an entity grant it any legitimate institutional means to suspend or abolish morality? If such an institution suspended morality, that act would abolish its own legitimacy. It would create an immediate need for some replacement. It would have no right to use conflict to preserve its existence. It’s only natural that all actions of this entity – across its entire scope of purpose – should be subject to the same general moral and legal standards. That includes its activities internationally.
There is therefore room for a theoretical American constitutional order in which the act of declaring war is considered to be immoral and illegal, and is not a power given to the government. This government would subject its agents to a due process of law, under the balance of powers, when defending the rights of US persons from criminal actors internationally, including other states that make war. This could be done unilaterally.
Given US wealth and power alone, this concept has a lot of room for success. Terrorism is a big issue in foreign policy, but terrorists are non-state criminals. There’s no reason why warrants couldn’t be obtained using intelligence – this could be done in a classified court. Enemies could be arrested, brought to trial, and after a due process subject to legal punishment. If the apprehending of these criminals results in conflict using arms, then it’s no different than when the police have to deal with a similar situation. The terrorist apprehending team would be liable if they use disproportionate force, didn’t follow rules of due process, or caused collateral damage.
As novel as this approach sounds what it represents is the conclusion of the American revolution. It is the long-delayed application of American principles of government to the international arena. I would contend that the American republic is not a Westphalian state. The federal government is not the same sort of entity as a Sovereign Prince. We call the peoples of a Westphalian state its “subjects”. Americans are “citizens”. American government is a tool, a means to enforce pre-existent rights. It is established by the people who also have the right to abolish it. Those principles don’t at all exist in the concept of a Westphalian state.
Applying the American idea to the international arena means rejecting the Westphalian system once and for all. It means declaring that all people everywhere have certain god-given rights that the popularly established US government has to respect no matter where its agents act and no matter with whom they deal. It means that the US government assumes these rights to exist among other peoples even if their own governments don’t. It means that common ground between nations can be made over objective legal and moral principles rather than subjective and transitory treaty arrangements.
The US government would treat other governments as some version of what it is: a tool being used by the people to deal with political concerns. As a consequence, there would be no expectation for various governments to always agree with each other. International relations would still exist, but the medieval struggle for dominance and territory, the use of war to achieve political aims, and the moral supremacy of the state would all go out the window.
It might be appropriate to expect the United States government to reflect upon its constitutional principles, and reject the Westphalian system, but what can it do about other states that are not the same? What happens when, as the US tries to deal with international persons through a due process of law, other powers disagree, and seek conflict with the United States?
There are many ways of seeking order in a multipolar world with no central authority. One very innovative set of ideas comes from libertarian thinkers. David Friedman, a libertarian writer, proposed a system for resolving disputes in a stateless society using arbitration in his book, The Machinery of Freedom. The international realm is, after all, a stateless society.
Friedman begins his exploration of multipolar law by assuming what it would be like if there was no government at all. In this environment, people still desire security from those who would use violence against them. To this end, they would establish and join security firms which would provide protection services. These include the physical apprehending of criminals who have wronged you, and subjecting them to some process of judgment towards a redress of grievances. The stumbling block of this system comes when two such firms come into conflict. If a robber is hunted by a victim’s security agency, can’t he hire his own agency to protect him? Friedman suggests that its cheaper for all involved to appeal to principles of law to settle such cases, rather than having battle after battle between security firms. The question is, how can two competing agencies decide on a mutually acceptable set of laws and judges without government?
According to Friedman, law is created as a product of a process of arbitration. That is, the two security agencies enter into a process – not of conflict or even negotiation – but of arbitration. In arbitration both parties commit voluntarily to the process, and are willing to accept the outcomes of arbitration. The mutually beneficial nature of arbitration – in the long run (it’s cheaper than always fighting) – is why it works.
Arbitration differs from negotiation in that it relies on objective principles and logic for dispute resolution. Negotiating seeks compromise, and mutual benefit. It is based on the immediate and unregulated preferences of both parties. Unlike negotiation, arbitration can produce outcomes that represent short-term disappointments for both parties. Arbitration subordinates all negotiation to objective principles, creating instead long-term benefits for everyone involved.
A common arbitration method involves appointing three judges to decide a dispute. Each of the two parties to the arbitration selects one judge whom they trust. Each party then agrees upon a judge whom they mutually trust. In this context, trust means both a respect for the general integrity of a judge as a fair arbiter, but also the notion that the judge understands and sympathizes with the party’s needs and objectives. For example, in a rape trial, the female victim’s security firm might insist that the neutral judge – whatever else is true about her – is a female.
These judges then hear the case. Law and precedent are applied in conjunction with proper standards of evidence. The judges then rule in favor of one party or the other. A majority vote wins, and has the possibility of establishing new precedent. Different judges can claim to adhere to different precedence sets or standards. This would affect who is selected to be a judge.
It’s completely reasonable to imagine a world where two governments with a dispute engage in a process of arbitration to resolve it. Nevertheless, a final question remains. What if one government refuses to cooperate or is unsatisfied with the outcomes of arbitration? Friedman, again, has an answer.
In Friedman’s stateless society, law is created as a market function. That is, supply and demand affect what the law will be – not political fiat.
This concept might seem very strange to some readers. Friedman imagines a “marketplace of law”. For those interested in it, there is an abundance of literature in the libertarian community discussing the idea. For the purposes of this article, suffice it to say that the use of arbitration as an alternative to war does not require a “marketplace of law”. In my proposed world order, states still exist at the national level, and are political entities which are producing legal norms through the traditional means.
Friedman’s conceptualization of law as a market function can at least serve to grant metaphorical understanding of the benefits of arbitration in international politics. What Friedman proposes as a solution to security firms that refuse to accept arbitration is pretty simple: pay-outs. One firm can pay the other money to accept arbitration where otherwise they wouldn’t, which makes sense since the purpose of a firm is to make money. These security firms make arbitration decisions based on cost calculation. Their source of revenue comes from their customer base: those whose security they protect. If they sell out their customers, and don’t protect them, they’ll lose money. If a competing firm tries to arrest their client (because that client is a criminal), then the first firm has to consider the cost-benefit analysis of what it would take to have a battle with the competition versus alienating their customer base. For most crimes, arbitration is an easy answer, since most customers wouldn’t mind if their security firms gave up on clients who have clearly committed crimes. Some cases are more complicated.
Friedman mentions the fact that some people believe in the importance of capital punishment while others morally oppose it. Some consumers might sign up with firms because they enforce capital punishment, while others would sign up with firms specifically because they are against it. Assume that the pro-death penalty firm’s client is killed by someone subscribed to the anti-death penalty firm. Here is a case where there’s an apparent irreconcilable difference. This is where either firm decides how much their stance on the death penalty is worth to their clients. The anti-death penalty firm can pay a compensation fee to the pro-death penalty firm to arbitrate with only anti-death penalty judges. This might alienate some of the pro-death penalty firm’s client base, but it would be made up for by the pay out.
This thought experiment might seem like a nightmarish peek into a libertarian dystopia to non-libertarians, but what’s important is to recognize the process. Arbitration is a method which differs fundamentally from traditional law. Arbitration uses objective standards, law, and morality – but it’s goal is not to uphold these in an absolute sense. Arbitration’s goal is to seek the best possible negotiated compromise while preserving a context of law and morality.
If nations used arbitration to settle disputes instead of war, the world would be fundamentally different. The most powerful consequence of using arbitration is that international disputes would now be circumscribed by legal and moral standards rather than by strategic power considerations. Under arbitration, nations would still have disagreements, and still compete greedily and selfishly for resources. It might be necessary for nations to bargain, to engage in something very similar to diplomacy. There might even still be conflict and war. Some nations might get bullied by others, and be forced to engage in a practice very similar to old-time tribute payments. However, the context for all this is an effort to rely on objective law as the fulcrum for dispute resolution.
Imagine a scenario where Turkey leans on Bulgaria to grant it some (hypothetical in this case) access rights to Black Sea oil reserves that are technically within Bulgaria’s normative sea claims. Turkey has no right to these reserves in the absolute sense, but is intent on having access to them. Bulgaria could get Turkey to agree to an arbitration over these claims. Turkey would not agree to an arbitration unless it could guarantee itself access. Rather than have Turkey ignore arbitration altogether, and lean on military might and hegemony to achieve its ends, instead Bulgaria only has to present an arbitration which favors Turkey’s interests.
Hypothetically, a precedent of law could exist to formalize what used to be called a protectorate arrangement. This law wouldn’t be valid in an absolute or universal sense. Instead, it would be a way of framing this sort of scenario in a way that could as closely as possible abide universal legal norms. The arbitration could formally acknowledge that the sea claims remain Bulgaria’s, but grant Turkey access to them as a formal “thank you” out of “respect” for Turkey’s greatness. As asinine as that seems, such an arbitration process could include other issues such as fishing rights – which might be important to Bulgaria but not Turkey. Or access rights generally. Turkey might be happy to get formal, enduring, and easy permission to pursue their interests with less international backlash or the need for conflict. In the long run, this process allows for great powers to claim “peace dividends” and save on military spending. Smaller militaries, all else being equal, means less harmful wars. In other words, the goal is to take the same situations and outcomes war and diplomacy deal with and produce, except in this case law and precedent circumscribe outcomes and mitigate the harm caused by conflict.
A world order founded on arbitration achieves something remarkable: framing war itself – uninhibited unilateral violence for the purpose of political dominance – as illegitimate. Over time, outright war will be seen as more and more dissonant with international frameworks. Even with great power bullying and the possibility of war not fully abolished, the costs of war relative to the costs of arbitration would inevitably rise as arbitration becomes a more common solution.
There are more benefits to arbitration. Arbitration takes some of the wind out of the sails of the state. No longer can a state engage in diplomacy explicitly to achieve its prerogatives. Instead, though the state’s interests are represented in the arbitration process, they are subordinate to the attempt to impose some sort of legal frame around a dispute. Instead of diplomacy as a means to seek compromise between competing state interests, arbitration becomes a means to subordinate state interests to a standard of law. This has the effect of creating international legal precedent without a formal world government. The “correct” answer to common international questions will emerge organically, and become a force that states have difficulty resisting.
In addition to its benefits to states, arbitration can also interface with non-state actors. Corporations, NGOs, even private persons can enter into arbitration with states or other non-state international actors. The same legal precedents that affect states can apply to non-states and vice versa. This sort of environment is capable of producing an actionable principle of universal human rights, as international legal precedent established by arbitration, backed by the world’s political and economic powers, comes into force.
Arbitration and a resolute rejection of war’s moral legitimacy don’t represent a fundamental change to the world, just a re-framing of it. There would still be gun fights, political competition, and plenty of aggression. But the arbitration paradigm mitigates what makes war so awful. At the very least, it provides a way for people to affirmatively declare that war is definitionally immoral.
War, for sake of expediency, suspends morality and then “bets” civilization against the chances of winning the war, which makes victory all the more important, and the lengths which must be then be pursued to obtain victory all the more extreme. It’s why suffering fire-bombed Japanese mothers had to endure their last minutes before death with their dead infants physically melted to the flesh of their backs, or why Jews in Europe were forced to sweat digging the very ditches that would be their graves.
My effort to emphasize the idea of consistent ethical logic can be compared to the little dutch boy with his finger in the dike. Violence, immorality and conflict will always spurt and leak out of the dam. God help us, however, if we cease in our desperate effort to plug it up wherever we can. If we don’t make the effort, with a sincere commitment to basic principles, then a leak can become a breach, and then a deluge. We’ve seen dozens and dozens of millions needlessly killed by war in the last century and a half. More recently, at least a few million have died in the Middle East for vague notions of “security” and “strategy”. And, in the near future a few button presses could see billions die. War’s evil is a particular thing.
War is a race to the bottom, because of the desperate need to win. If you take that away – the need to win – you mitigate most of the harm caused by war. If you frame the disputes that lead to war in a way which doesn’t inherently require conflict, in which some semblance of reason and morality always remains on call, then war becomes utterly unnecessary and unaffordable.
The world order I have proposed is not one without conflict or imperfection, but inasmuch as it impedes the demons of war it is because it relies on truth. Certain truths are universal. The value of life, the need for it to mean something, and the pursuit of individual purpose define all human lives. It’s why and how we all continue to stay alive. It’s even why we ever have any incentive to kill each other. It’s why we’re able to develop civilized standards that allow cooperation without killing.
Action is choice, and it presupposes some commitment to the idea of life. Politically speaking, action is consent. A person can go along with others, or go against them. We support one party or another. We fight for this nation or that nation. Once we understand that morality – truth – cannot allow for war, it becomes impossible to grant it our consent. Once we understand how those grievances and concerns we traditionally address with war can be addressed by other means, we have no need for war.
The world has had many wars. People have suffered immensely as an ironic consequence of the aggressive pursuit of life to its full measure. People have fought for security, and resources. They wanted a meaningful life. In the process, they conflicted with others. To guarantee a good and meaningful life, they built empires, and dominated their enemies.
Today, we live in a “Pax Americana.” The top minds of the academy propose that this is the source of modern peace and progress. A military empire which has killed millions, which stood against evil by dominating evil with unprecedented violence, and by punishing evil’s women and children with cruel bombs. They say that this is necessary, that only power can make room for peace.
Without power, the need to compete will lead inevitably to war, with all its excesses. Only the hegemony of a just power – by grace and providence – can guarantee the future, they say. But there is a power which transcends bullets, bombs, and flags.
The military endeavor of the United States, the widest most successful attempt at World Empire in history, has yet to secure complete dominion. It may destroy itself, or the World, to fulfill its ambitions. But there’s an alternative.
In the place of the empires of the past, we can create an empire of volition and truth. We can take the Bible’s Kingdom of God, which lies within, and see its expression without.
<pTruth plus consent represent a world power. Truth is the universal value of human life. Consent is independence, and the willingness to act consistent with moral principles. Consent exercised by the people of all nations, empowered by process, girded by truth and law, can become a World Empire of peace.
1 – Schell, Jonathan. (2003). The unconquerable world. Power, nonviolence, and the will of the people. New York, NY: Metropolitan Books. Pg.10.
3 – Kliner, Pete. (2010, Jan 23). A moral justification for killing in war. Retrieved from http://soldier-ethicist.blogspot.jp/2010/01/moral-justication-for-killing-in-war.html