# Rights from the Standpoint of Hell **URL:** **By** Daniel Shapiro **Published:** January 1, 1980 --- “Walzer's account of justice in war is largely on the right track.” _Just and Unjust Wars_, by Michael Walzer. Basic Books, 361 pp., $15; 5.95. For people who are concerned with individual rights and justice, libertarians have paid little attention to the moral complexities of warfare. In a way this is understandable: most wars involve massive violations of individual rights, and who wants to spend their time mucking around in such a realm, making distinctions and evaluations concerning degrees of evil? Furthermore, libertarian theorists are more comfortable in the realm of ideal political theory, i.e., those principles which specify how people’s rights will be protected in a genuinely free society. But the neglect of critical thinking about warfare is not justified. First, there is a point to judgments about degrees of evil: if rights are routinely violated in war, then we should endeavor to avoid as much rights violations as possible. Second, attention to warfare can sharpen one’s theory of rights: to try to work out a consistent, coherent, theory of rights in this difficult area can only deepen one’s understanding and make one’s theory more plausible. Third, war, unfortunately, is very close to the norm: to trace the history of violent inter and intra state conflicts is almost to trace the history of the world. To direct one’s moral/political vision away from war is to neglect to apply one’s critical faculties to the real world. Fortunately we don’t have to begin ex nihilo in order to make judgments about warfare, for there is a whole tradition of just war theory going back to ancient times. The theory has two parts: justice of war (_jus ad bellum_)—those principles which evaluate the reasons states go to war—and justice in war (_jus in bello_)—those principles which are concerned with how wars are fought. This theory should be of interest to libertarians because it (more or less) takes individual rights seriously. Michael Walzer, a professor of government at Harvard, has written a book which follows in this tradition: the book proceeds on the assumption that there are (close to) absolute rights to life and liberty, and accordingly Walzer radically downplays considerations of utility. The postulation of individual rights holds him in good stead when discussing _jus in bello_. Walzer does a good job of showing that the traditional rules against the intentional killing of noncombatants—“traditional” may not be the right word since they have been often violated in the twentieth century—are rooted in individual rights, and that rules which constrain the conduct of war should be in effect _no_ matter what the justness of one’s cause. The latter is part of what I shall dub the separation thesis: namely that judgments about _jus in bello_ and _jus ad bellum_ are logically independent. Surely Walzer is correct that judgments about the just way to fight a war are independent of the justness of one’s cause: for to take individual rights seriously means that they cannot be overridden or disregarded for the sake of good consequences—in this case the good consequences of helping the just side to win or helping to prevent the unjust side from winning. Thus Walzer argues against proposals all of which come down to the claim that in the name of “military necessity” or a righteous cause the prohibitions of _jus in bello_ can be partially or totally overcome. Such claims have been made, with varying degrees of specificity, by such people as the English utilitarian Henry Sidwick, Winston Churchill, and the Truman administration. Walzer also uses the standard of individual rights to attack those traditional rules of war which _do not_ respect those rights: e.g., the obscene idea that it is permissible to lay siege to a city and try to starve it to death, and the claim that reprisals against innocent people are justified on the grounds that one is merely engaged in legitimate “punishment.” Walzer’s arguments here are carefully set out and generally libertarian, but lack of space prevents any detailed discussion of them here. It is all well and good to assert that specious claims of “military necessity” and the like cannot push aside individual rights, but what if violations of individual rights _really was necessary_—not for promoting a victory or a just cause, but to avoid some horrible catastrophe? There is an old expression: do justice even if the heavens fall. fall. But is this right? To speak of individual rights with regard to warfare is in a way to talk about rights with hell in the background: wars, even those that may be justified, are terrible human tragedies and the point of insisting on justice in warfare is to limit the tragedy as much as possible. But suppose rather than hell being in the background, we are in it, so to speak: an enemy committed to world wide genocidal destruction is on the loose and the only way to stop him from imminent victory is to violate (some of) the individual rights of his subjugated people. Walzer, in light of this, amends the old slogan to: do justice unless the heavens are (really) about to fall. This seems correct in form: if such a situation as the one just described existed, individual rights could be overridden to prevent a catastrophe. Whether it is right, _in fact_, that is, whether this argument could be applied to a real war is a different matter: Walzer’s book is subtitled “A Moral Argument with Historical Illustrations” and I am not competent to judge the latter. Whether one agrees with Walzer in his justification for the terror bombing of Germany during World War II, for example, depends on a host of presuppositions about the war itself, none of which, in Walzer’s case, are beyond questioning. Walzer’s account of justice in war is largely on the right track; his account of justice of war is, however, another matter. For rather than using the standard of individual rights, Walzer’s discussion of jus ad bellum revolves around mythical rights of states—namely territorial integrity and political sovereignty. Territorial integrity refers to the fact that states generally protect a certain land area where individuals share a common life and values; the state, says Walzer, protects a common territory rather than a mere aggregation of individual claims within the state boundaries. Political sovereignty refers roughly to the protection that states give to their members’ lives and liberties, and to the abilities of citizens to choose and influence their form of government. But even if we agree that something like political sovereignty and territorial integrity are important values, why in the world can these be considered rights, and rights of states, no less? Walzer claims that these rights of states “derive ultimately from the rights of individuals” (p. 53), but if so, where do the former come from? Walzer mentions a process of “collectivization” of rights, but rights aren’t the sorts of things that can be added up into an aggregate, creating a new right! Perhaps Walzer’s socialism—he is an editor of _Dissent_—makes him blind to the fact that rights are always the rights of individuals; perhaps his attempt to write a book of “practical morality” divorced from any foundation steered him wrong. But whatever the reason, Walzer’s account of justice of war is seriously flawed. A just war for Walzer is one which is undertaken to defend political sovereignty and territorial integrity—assuming peaceful means have been tried and found wanting. This of course justifies a defensive war against an aggressor but it also justifies some interventions, since some states do not uphold political sovereignty and territorial integrity in the slightest. Interventions which aim to uphold or restore such “rights” are therefore just wars for Walzer: specifically, he thinks some cases of forceful border crossings when the intention is to aid a national liberation or secessionist movement, or to counterbalance a previous intervention by a different state, or to rescue people from genocide or enslavement, are permissible. But since there aren’t any collective “rights” to political sovereignty or territorial integrity these wars will only be just—if Walzer is to be consistent within his rights oriented theory—if their aim or intention is to uphold individual rights. Is the aim or intention of the interventions which Walzer applauds to uphold individual rights? One may well doubt it, if included in such an aim or intention is the consideration that the very act of starting a war may violate individual rights. Suppose the war requires a draft? Suppose the war requires, as many do, massive taxation, inflation, stifling of dissent, and restriction of civil liberties? Suppose the type of weapons required for the war will be unable to be used in a way that will avoid killing civilians? Walzer either doesn’t discuss this issue—outside of the draft, which he opposes, there is no mention of the ravages war can cause domestically—or tends to place them in the category of justice in war, since they concern how the war is conducted. But this seems ad hoc: heads of state know, or can be expected to know, that certain wars will require rights violations practically from the very beginning (e.g., an unpopular war requires a draft). None of these criticisms are meant to detract from the value of _Just and Unjust Wars_, which is well worth reading for a number of reasons, besides the theoretical and practical importance of subjecting warfare to philosophical analysis. The arguments are cogent, even where they fall short they are illuminating and interesting, Walzer is willing to address difficult and complicated issues, and the book is superbly written. To make philosophy interesting is itself commendable; to write sensitively about warfare—where the temptation to sermonize or write detachedly must be strong—is a remarkable feat. Here is Walzer at his best: War kills; that is all it does; even its economic causes are not reflected in its outcome; and the soldiers who die are, in the contemporary phrase, wasted . . . When soldiers die in small numbers, in encompassable battles, they can attribute some meaning to their deaths. Sacrifice and heroism are conceivable notions. But the slaughter of modern warfare overwhelms their capacity for moral understanding; cynicism is their last resort . . . But it is not our last resort . . . In an age when human sensibility is finely tuned to all nuances of despair, it still seems important to say of those who die in war that they did not die in vain. And when we can’t say that, or think that we can’t, we mix our mourning with anger. We search for guilty men. We are still committed to a moral world. Passages like this—which have a kind of haunting loveliness about them—reflect the general tone of _Just_ and _Unjust Wars_. They indicate, so it seems to me, a person who faces agonizing moral questions in the best way possible: aware of the difficulties, aware of the sheer overpowering horror of it all, yet unafraid to pronounce judgment and to stick to one’s principles. Walzer is clearly a man with a passion for justice: it’s a shame he isn’t a libertarian, and it’s a shame that not all libertarians share his passion. Danny Shapiro is completing his Ph.D. in philosophy at the University of Minnesota.