A Semi-Kantian Just War Theory

2021 ◽  
pp. 13-31
Author(s):  
Yitzhak Benbaji
Keyword(s):  
Just War ◽  
Just War Theory ◽  
Legal Order ◽  
Law Of War ◽  
The Law ◽  
In Virtue Of ◽  
Kantian Philosophy

The chapter explores the Kantian philosophy of the law of war and how it is based on two normative claims. First, states are independent of each other in virtue of their duty to provide a legal order in a territory that they rule. Second, any use of non-defensive force by a state in a territory that it does not actually rule is illegal. Benbaji shows that there is a deep tension between these claims, and he sets out to offer a contractarian theory of the crime of aggression, which he characterizes as semi-Kantian: states are fully legitimate only if their right to rule over their territory is recognized by all other states. Semi-Kantians argue that Ripstein’s Kant misconstrues the standing of states vis-à-vis the territories over which they rule.

The Law of War and its Many Distinctions

2019 ◽  
pp. 201-250
Author(s):  
George P. Fletcher
Keyword(s):  
Rome Statute ◽  
General Structure ◽  
War Crimes ◽  
International Perspective ◽  
Legal Order ◽  
Law Of War ◽  
International Legal Order ◽  
Police Action ◽  
The Law ◽  
The Mind

This chapter focuses on the law of war and its many distinctions. The supreme distinction in this book is between lawful and unlawful. However, in the law of war, the distinctions multiply beyond control. Whether troops fighting abroad constitutes war is itself a disputed question; there has been a tendency in recent years to use “armed conflict” or “police action.” For the purposes of analyzing the Rome Statute and, in particular, Article 8 on war crimes, one has to assume an international perspective. Most countries in the international legal order are not democracies, and the internal allocation of power is not relevant to whether they violate Article 8. The complexity of Article 8 challenges the mind, with at least 50 distinct offenses. The chapter then elaborates on the perspectives necessary to grasp the general structure of war crimes in the international legal order.

The Paradox of “Just War” in Rousseau's Theory of Interstate Relations

2015 ◽  
Vol 109 (2) ◽  
pp. 314-325 ◽  
Author(s):  
BLAISE BACHOFEN
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Just War ◽  
The State ◽  
Interstate Relations ◽  
Law Of War ◽  
The Rule Of Law ◽  
External Relations ◽  
The Law ◽  
Utopian Theory

In theSocial Contract, Rousseau declares that he has given up the idea of discussing the “external relations” of states. Yet numerous texts—including a recently reconstituted work about the law of war—show that he thought very seriously about the question of the nature and origin of war and of the possibility of making war subject to the rule of law. Rousseau, in contrast to Hobbes, links war's appearance to that of the sovereign states; the state of war is therefore the necessary result of international relations. Moreover, he considers the international law as chimerical. How can he then conceive a non-utopian theory of “just war”? My hypothesis is that his conception of the law of war is deduced from principles of internal political law and arises from pragmatic necessity. The state that discredits itself in its manner of waging war weakens itself while believing that it is reinforcing itself.

Reading Kant’s Rechtslehre: Some Observations on Ripstein’s Kant and the Law of War

2021 ◽  
pp. 43-51
Author(s):  
Thomas Mertens
Keyword(s):  
Just War ◽  
World History ◽  
Anglo Saxon ◽  
Law Of War ◽  
Legal Problems ◽  
Just War Tradition ◽  
The Law

The chapter puts forward a semantic observation which he claims reflects not only Ripstein’s Kant interpretation, but also his own perspective as a long-term reader of Kant. Mertens observes that Kantian scholarship has become to a large extent an Anglo-Saxon affair, and Kant is read and interpreted against the background of political and legal problems of that world. History has shown that several readings of Kant are possible, and Ripstein presents a new, powerful reading of Kant which is indebted to that Anglo-Saxon background. Mertens discusses several intriguing questions, inter alia, Ripstein’s interpretation of Kant’s view on the law of war is the distinction between the just war tradition and the regular war tradition and Kant’s departure from both traditions.

Extremism and Confusion in American Views about the Ethics of War: A Comment on Sagan and Valentino

2019 ◽  
Vol 33 (4) ◽  
pp. 451-463 ◽  
Author(s):  
Jeff McMahan
Keyword(s):  
United States ◽  
Public Opinion ◽  
Just War ◽  
Just War Theory ◽  
The United States ◽  
Moral Equality ◽  
Ethics Of War ◽  
The Law ◽  
Moral Equality Of Combatants

AbstractIn their article “Just War and Unjust Soldiers: American Public Opinion on the Moral Equality of Combatants,” Scott Sagan and Benjamin Valentino have revealed a wealth of information about the views of contemporary Americans on the ethics of war. Virtually all they have discovered is surprising and much of it is alarming. My commentary in this symposium seeks mainly to extract a bit more from their data and to draw a few further inferences. Among the striking features of Sagan and Valentino's data are that the views of Americans tend to cluster at the extreme ends of the spectrum of possible views about the ethics of war, that an apparent sympathy for pacifism coexists with harshly punitive views about the treatment of soldiers, and that few of those surveyed appear to have given any thought to the implications of the views they expressed for what it might be permissible for enemies of the United States to do to captured American soldiers. The commentary concludes by arguing that Sagan and Valentino's findings do not, as they argue, support the fear that is sometimes expressed that a wider acceptance of revisionist just war theory, and in particular its incorporation into the law, would make the practice of war even more barbarous than it already is.

The Public Uses of Coercion and Force

2021 ◽  
Keyword(s):  
Rule Of Law ◽  
Just War ◽  
Focal Point ◽  
Just War Theory ◽  
The Rule Of Law ◽  
The Public ◽  
Perpetual Peace ◽  
Constitutional Level ◽  
The Law ◽  
Key Questions

The Kantian project of achieving perpetual peace among states seems (at best) an unfulfilled hope. Modern states’ authority claims and their exercise of power and sovereignty span a spectrum: from the most stringently and explicitly codified—the constitutional level—to the most fluid and turbulent acts of war. The Public Uses of Coercion and Force investigates both these individual extremes and also their relationship. Using Arthur Ripstein’s recent work Kant and the Law of War as a focal point, this book explores this connection through the lens of the (just) war theory and its relationship to the law. The Public Uses of Coercion and Force asks many key questions: what, if any, are the normatively salient differences between states’ internal coercion and the external use of force? Is it possible to isolate the constitutional level from other aspects of the state’s coercive reach? How could that be done while also guaranteeing a robust conception of human rights and adherence to the rule of law? With individual replies by Ripstein to chapters, this book will be of interest to students and academics of constitutional law, justice, philosophy of law, criminal law theory, and political science.

War, Resistance, Revolution

2017 ◽  
Author(s):  
Marco Barducci
Keyword(s):  
Just War ◽  
Common Law ◽  
Glorious Revolution ◽  
Law Of War ◽  
Natural Right ◽  
Ancient Constitution ◽  
Resistance Theory ◽  
The Law ◽  
The Republic ◽  
The Glorious Revolution

This chapter examines the uses of Grotius’ resistance theory primarily based on the analysis of the natural right of punishment and the law of war devised in De Iure. After an outline of Grotius’ view of resistance, the chapter moves on to examine its multifaceted reception in England until after Locke’s re-elaboration in the Two Treatises of Government, during which time it provided an intellectual and legal groundwork for negotiation between Whigs and Tories around the exclusion of James II and the ascension of William and Mary. In this regard, Grotius not only brought to England a theory of conquest that filled a gap in the shared tradition of common law and ancient constitution, but his attempt to reconceptualize resistance theory in terms of just war fit particularly well in the justification both of the Republic in 1649 and of the Glorious Revolution.

scholarly journals War and Peace in The Law of Peoples: Rawls, Kant and the Use of Force

2018 ◽  
Vol 23 (4) ◽  
pp. 661-680
Author(s):  
Peri Roberts
Keyword(s):  
International Politics ◽  
Just War ◽  
International System ◽  
Use Of Force ◽  
Just War Theory ◽  
The Other ◽  
War And Peace ◽  
Law Of Peoples ◽  
Nation States ◽  
The Law

AbstractWhere Rawls’s The Law of Peoples addresses war and the use of force then his position has often been identified closely with Walzer’s restatement of just war theory, as both positions appear to take nation-states, and the conflicts between them, to be the bedrock of the international system. On the other hand, Kant’s notion of a peaceful federation of states presents us with the notion of a world without war and where the international system is transformed. This article argues that Rawls’s account of the use of force is better understood if we read it with an eye to its resonances with Kant rather than with Walzer. Doing so rewards us with a clearer understanding of central aspects of Rawls’s account of just war and vision of international politics.

KANT'S CONCEPT OF INTERNATIONAL LAW

Legal Theory ◽  
2010 ◽  
Vol 16 (4) ◽  
pp. 229-257 ◽  
Author(s):  
Patrick Capps ◽  
Julian Rivers
Keyword(s):  
International Law ◽  
Just War ◽  
Just War Theory ◽  
Legal Order ◽  
Federal State ◽  
Institutional Characteristics ◽  
Logical Framework ◽  
Global State ◽  
Law Of Nations ◽  
International Legal Order

Modern theorists often use Immanuel Kant's work to defend the normative primacy of human rights and the necessity of institutionally autonomous forms of global governance. However, properly understood, his law of nations describes a loose and noncoercive confederation of republican states. In this way, Kant steers a course between earlier natural lawyers such as Grotius, who defended just-war theory, and visions of a global unitary or federal state. This substantively mundane claim should not obscure a more profound contribution to the science of international law. Kant demonstrates that his concept of law forms part of a logical framework by which to ascertain the necessary institutional characteristics of the international legal order. Specifically, his view is that the international legal order can only take a noncoercive confederated form as its subjects become republican states and that in these circumstances law can exist without a global state. Put another way, Kant argues that if we get state-building right, the law of nations follows.

The Challenge

2019 ◽  
pp. 9-36
Author(s):  
Yitzhak Benbaji ◽  
Daniel Statman
Keyword(s):  
Just War ◽  
Just War Theory ◽  
Traditional View ◽  
Law Of War ◽  
Moral Equality ◽  
Enemy Combatants ◽  
Main Ideas ◽  
Individual Self ◽  
Morality Of War ◽  
Self Defence

The chapter presents the main ideas of traditional just war theory; the separation between the principles governing the resort to war (ad bellum) and those governing its conduct (in bello); the wide permission granted to combatants of both sides to target enemy combatants (‘moral equality of soldiers’); and the almost absolute prohibition on the intentional targeting of enemy civilians. It then introduces Individualism, which is the view that underlies the critique levelled by philosophers known as ‘revisionists’ against the traditional view, on both the ad bellum and the in bello levels. According to this critique, the attempt to anchor the morality of war in the principles of individual self-defence fails. The problem with the revisionist view is that it is unable to offer an alternative to traditional just war theory and to provide a satisfactory justification for the rules that govern the ethics (and law) of war, on both the ad bellum and the in bello levels.

scholarly journals Iraq, the U.N. and the Law

1969 ◽  
pp. 560
Author(s):  
L. C. Green
Keyword(s):  
United Nations ◽  
International Law ◽  
Armed Conflict ◽  
Just War ◽  
Just War Theory ◽  
Legal Issues ◽  
Law Of Armed Conflict ◽  
The United Nations ◽  
The Law ◽  
United Nations Charter

This paper discusses the international legal issues arising out of the Iraqi invasion of Kuwait and the United Nations response to the conflict. The author frames his analysis considering just war theory, international law and the United Nations Charter. After looking at the historical relations between Iraq and Kuwait, Professor Green examines the United Nations response to the conflict considering the related U.N. resolutions. Reference is made to the law of armed conflict and international law on the treatment of civilians and diplomats. Finally, the author briefly discusses legal problems faced by some of the states aligned against Iraq.

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