Contractarianism and the Moral Equality of Combatants

The purpose of this chapter is to offer a contractarian defence of Moral Equality, the thesis that Just and Unjust Combatants do not wrong each other when they kill and maim each other in war. We concede that the killings of Just Combatants by Unjust Combatants is pre-contractually impermissible. Moral Equality is nevertheless true if an agreement between states that equalize the legal standing of soldiers is fair and also mutually beneficial. By accepting such an agreement, combatants attain a right to take advantage of traditional jus in bello rules, thereby violating no duty against Just Combatants by attacking them.

A Contractarian Account of the Crime of Aggression

The purpose of this chapter is to explain the moral standing of jus ad bellum as it is formulated in the UN Charter. According to the contract that the Charter embeds, any armed violation of a state’s territorial integrity by another state is an instance of prohibited aggression. As we read it, the Charter confers a moral right against aggression even on states whose borders are unjustly drawn, and even on dangerous states whose political society is irrecoverably divided. In return, states gain a right to go to wars whose aim is to defend their territorial integrity even when such wars are pre-contractually unjust.

Contractarianism and the Moral Equality of Civilians

The chapter proposes a contractarian account of the strict prohibition against targeting civilians and of the limited permission to collaterally harm them. It shows that under an arrangement by which states hold armies whose role is self-defence and deterrence from aggression, a contract granting immunity to civilians from direct attack is mutually beneficial to all decent parties. It would immunize even civilians who are culpable for the threat against which the just side is fighting. The permission to inflict collateral damage on civilians is also explained on contractarian grounds. The chapter concludes by discussing the rules of warfare in asymmetrical conflicts.

When the Agreement Collapses

What happens when one of the parties to the war contract deliberately ignores it? This typically occurs when one of the parties violates the jus in bello rules by bombing civilian targets, murdering POWs and so on. This chapter argues that the normative implications of breaching the war contract are themselves part of the contract. In the absence of an international body that can enforce the contract on those violating it, the parties have the right to respond to violations of the in bello rules. These remedies—these counter-violations—should be cautious and restrained, with a constant eye on the goal of reinstituting the parties’ commitment to the broken rules. The in bello violations that call for retaliation are of three general kinds: (a) violating prohibitions whose source is merely conventional, such as those outlawing certain weapons; (b) violating the prohibition against targeting civilians in cases in which the civilians attacked bear responsibility for the enemy war effort, such as politicians or party members; and (c) carrying out indiscriminate attacks on civilians. The chapter argues that retaliation in kind is licensed by the war contract in all three categories. Ex ante, decent and partial parties would see the need to deter disobedient parties and to make them realize that they would pay too high a price for violations of the war agreement. Thus, a war ethic of the kind the chapter proposes will make the world a safer place in which to live.

Introduction

The legal prohibition on aggression was first posited in the 1928 Kellogg-Briand pact (‘The Pact of Paris’), which outlawed ‘war as an instrument of national policy’. The parties to this pact undertook the duty not to use force to resolve ‘disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them’. Later, the United Nations Charter gave expression to the same idea: ‘All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.’...

The Aims of Just Wars and Jus Ex Bello

The chapter discusses the just aims of defensive wars, and, by implication, the duty to end wars, viz., the jus ex bello. It starts with a discussion of the idea of ‘uncompromising wars’ according to which wars may go on until one’s enemy military forces is completely destroyed. We offer a contractarian argument for a rule that categorically prohibits such wars. We then develop two asymmetries between the justice of resort to war and the justice of continuing it. In particular, we show that the conditions of proportionality and of probability of success function differently in constraining resort to war and in constraining its continuation.

Foundations of a Non-Individualist Morality

The purpose of this chapter is to outline an alternative to Individualism and to show that moral rights can be taken seriously while acknowledging the role of organized societies in determining the actual distribution of moral rights and duties. In some cases, the rules accepted by such societies give content to what was indeterminate at the pre-contractual level. In others, they redistribute moral rights and duties among members of society. In both these ways, rights behave in a less rigid manner than that entailed by Individualism. To understand how social rules can determine rights, it is particularly helpful to look at the way social roles provide their holders with a permission to diverge from what would be required from them pre-contractually. In decent societies, holders of public roles typically have a right to fulfil their professional duty without deliberating on the merits of the case; namely, without being guided by first-order reasons that pertain to the cases with which they deal. This applies to combatants as well. In most cases, they have a right to disregard the first-order reasons pertaining to the justness of the war they are sent to fight. The responsibility for launching an unjust war lies on the shoulders of the politicians and not on those of combatants, just as the responsibility for sending an innocent person to jail rests with the court and not with the prison guards.

The Challenge

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.

Concluding Remarks

In this chapter we offer some concluding remarks. We point to the limitations of contractarianism, to its advantages over revisionism, and to its practicality. We show that for contractarianism wars are not necessarily ‘moral tragedies’, as they are for revisionists because wars do not necessarily involve unavoidable wrongdoing. According to contractarianism, combatants participating in war can do so without violating the rights of either combatants or civilians of the enemy side. The chapter also shows how even revisionists rely at times on contractualist premises to justify adherence to rules which they regard as unjustified in terms of ‘deep morality’. We also criticize the way this notion is utilized, especially the distinction between ‘deep morality’ and non-deep morality (associated with compliance with the laws of war). The distinction creates the impression that one should give priority to considerations stemming from deep morality over those stemming from shallow morality. But clearly, even revisionists do not assume such a priority—neither in general, nor in the field of war. Finally, the chapter highlights the ‘realist’ aspect of contractarianism, namely, its scepticism about the termination of wars and warfare. This scepticism has to do with the existence of evil individuals and of rogue states, but also with benign self-interest coupled with epistemic shortcomings and a constant suspicion of others. Given this realist assumption, states would be better off agreeing on rules to regulate war that would, on the one hand, facilitate effective self-defence, while on the other, reduce the killing and harm they cause.