Restraining the fox: Minimalism in the ethics of war and peace

Abstract

Peace plays a central role in the ethics of war and peace, but this proves to be an enormous challenge. In a recent article, Elisabeth Forster and Isaac Taylor grapple with this important topic. They argue that certain concepts in just war theory—aggression, legitimacy, and peace—are essentially contested and susceptible to manipulation. Because the rules are interpreted and applied by the very states that wage war, it is as if the fox is asked to guard the chicken coop—a recipe for disaster. To avoid manipulation of the theory and make the goal of peace attainable, they defend “minimalism” in the ethics of war and peace. This paper responds to and builds on their article. After nuancing the analysis, I will argue (a) that their minimalism does not solve the problem since the proposed alternative concept is equally prone to misuse, and (b) that their minimalism is mistargeted. What I propose is to specify and ground the rules of war without raising the standard too high, to disentangle jus ad bellum and jus post bellum and see peace as guiding principle for jus post bellum, and to interpret that in a minimalist way.

Introduction

Securing peace after war is an enormous challenge. In recent years, there have been ample examples of wars with a disastrous aftermath: Iraq, Afghanistan, Kosovo, Libya, and Syria. In 2016, the Iraq Inquiry report stated that the British planning and preparation for post war Iraq “were wholly inadequate” (Chilcot, 2016: 122). While it was relatively easy to “win the war” and remove Saddam Hussein from power, neither the UK nor their coalition partners were prepared for the subsequent task of peacebuilding (see also Walzer, 2004: 163–168). Peace may play a central role in the ethics of war and peace, most notably just war theory, but it proves to be a challenging goal.

Forster and Taylor (2021) grapple with this often overlooked, but hugely important topic: the goal of peace in the context of just war theory. The above examples do indicate that more often than not, “noble aspirations have not been realized” (Forster and Taylor, 2021: 2). The failure to achieve peace might be due to a lack of political will, but also, according to Forster and Taylor, because peace is a pre-eminently complex and vague concept. They point out that it is, like other important concepts in just war theory, such as aggression and legitimacy, essentially contested. Consequently, it is unclear how these concepts ought to be interpreted when assessing war related permissions and obligations. Forster and Taylor argue that it is this flaw that (at least partly) explains why states have poor track records when it comes to securing peace. To wit, because these contested concepts are central in just war theory, but are open to interpretation, the theory is susceptible to manipulation and subversion (Forster and Taylor, 2021: 2). In the absence of an authoritative global arbiter, the rules are interpreted and applied by the very states that wage war. In that way, it is as if the fox is asked to guard the chicken coop (Forster and Taylor, 2021: 9)—a recipe for disaster. ¹ To avoid misuse of the theory, Forster and Taylor defend “minimalism” in the ethics of war and peace. More specifically, they propose to replace the principle of “aggression” with the principle of “direct harm to individuals” as a way to reduce manipulation and to make the goal of peace attainable.

This paper responds to and further builds on their article. While I share their worries regarding the risk of misuse of the theory and underline the importance of defining central concepts in just war theory, their analysis can be nuanced in various ways. In doing so, I will focus on the concepts of aggression and peace. Furthermore, there are two major problems related to their defense of minimalism. I will argue (a) that their minimalism does not solve the problem since the proposed alternative concept is equally prone to misuse, and (b) that their minimalism is mistargeted. What I propose in this article is to specify and ground the rules of war without raising the standard too high, to disentangle jus ad bellum and jus post bellum and see peace as guiding principle for jus post bellum, and to interpret that in a minimalist way.

Aggression and self-defense

When addressing the concepts of aggression, legitimacy, and peace, Forster and Taylor focus on jus ad bellum, the justice of the war. The just cause criterion is central to the moral analysis of war. Which wrong(s) are severe enough to justify the use of force? While the historical just war tradition was rather permissive, ² Forster and Taylor note that international law took a restrictive view after the two World Wars: the just cause was limited to defense against military aggression. ³ Michael Walzer (2015) provided the philosophical interpretation of that view. Indeed, much of contemporary just war theory is “aggression-centered” (Valentini, 2016: 145): the only just wars are those in response to aggression, constituting self- or other defense against an unjust armed attack or in response to mass atrocities (humanitarian intervention). ⁴ Walzer puts the moral norms governing individual self-defense center-stage with his legalist paradigm and the domestic analogy on which it is based. Many contemporary just war theorists follow him in this respect. ⁵ But while individual self-defense informs the rules of war, how it informs these rules differs quite significantly.

This difference, sometimes portrayed in the literature as a distinction between reductivism and exceptionalism, is important for Forster and Taylor. ⁶ While this distinction is debated, the gist of it revolves around the way in which the rules of war ought to be justified. ⁷ Either one can assume, as does Walzer, that war is such an exceptional situation that it constitutes a distinct moral domain, which is why the rules for the individual and the global sphere are different. States are like individuals, in Walzer’s domestic analogy, but national defense is not exactly the same as individual defense. Or one can assume that war is not an exceptional situation, which is why the rules for the individual and the global sphere are the same; national defense is completely reducible to individual defense. On this “revisionist” view, ⁸ Walzer’s domestic analogy is rejected because it is assumed that literal killing (by and of individuals) must be justified in war, not analogous killing (by and of a state).

According to Forster and Taylor (2021: 2–4), it is because of the adjustment made to the “simple” individual self-defense model that the concept of aggression has become so vague. It may, therefore, “be suggested that a move toward something like revisionist principles in international law would avoid the problems of traditional theories that we have identified. Since the essentially contested concepts we discussed all enter the normative vocabulary of warfare on account of the dominant theories of armed conflict departing from a simple self-defense model, it might be thought that the revisionist move would eliminate these concepts” (Forster and Taylor, 2021: 13). In other words, one might be inclined to think that a return to the individual self-defense model—seeing permissible war as “self- (and other-) defense writ large” (Forster and Taylor, 2021: 3)—would do away with the vagueness and prevent the subversion of the theory. ⁹

That initial analysis, however, can be nuanced. Exceptionalism does not necessarily render the theory vague, and reductivism is not necessarily simple. That is probably because the underlying assumption is questionable: theories of individual self-defense are actually far from simple. Rather, the debate on the justification and scope of individual self-defense is extensive and sophisticated. ¹⁰ It is not at all clear, for example, that the rights violation, which triggers the justification for lethal individual self-defense, is to be equated with the use of physical violence against an individual. It seems you can lethally defend yourself against someone who non-violently blocks access to your food needed for survival. ¹¹ As such, “key adjustments to this simple self-defense model” (Forster and Taylor, 2021: 3) are not making a simple concept complicated. If anything, Walzer’s equation of the just cause for war with a response against aggression, any kind of aggression that amounts to a violation of sovereignty, seems to make things more straightforward.

When referring to international law, Forster and Taylor (2021: 4) rightly state that the contours of the definition of aggression were unclear in the first decades after the First World War. However, the UN General Assembly adopted the Definition of Aggression with consensus in 1974: “aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” ¹² This definition is widely accepted in legal doctrine. ¹³ The related concept of an armed attack is especially relevant for the use of force in self-defense. The inherent right of states to self-defense is an exception to the prohibition on the threat and use of force in international relations (art. 2.4 and art. 51 UN Charter). ¹⁴ It is permitted only as response to an armed attack; narrowly defined as a grave use of force, depending on the scale and effects. ¹⁵ There are certainly discussions on specific applications of international law and the scope of permissible self-defense, but in general, the concepts of aggression, use of force, armed attack, and self-defense are quite well defined. Terry Gill states: “While controversy exists in relation to certain aspects of the right of self-defence under international law, there is nevertheless a considerable degree of agreement regarding its core nature as a legally sanctioned forceful response to an unlawful resort to force and the requirement of a prior or imminent armed attack as a threshold for its exercise” (Gill, 2015: 738).

So whilst aggression and self-defense are less vague in Walzer’s just war theory and international law than Forster and Taylor (2021: 4) picture it to be, individual self-defense, conversely, is not at all straightforward. This means that it is unlikely that a justification for the use of military force that relies on the not-so-simple individual self-defense model removes complexities. And indeed Forster and Taylor (2021: 13–14) acknowledge that while revisionists reduce the morality of war to the morality of individual self-defense, they no not thereby remedy the problem. Instead of eliminating contested concepts, they replace one contested concept (aggression) with another (wrongdoing). ¹⁶ We would then, they rightly note, have to define wrongdoing. ¹⁷ Yet revisionists take themselves to be discussing the ordinary morality of individual self-defense and to be directly applying it to war. In other words, the revisionist debate only shows that individual self-defense is not simple but in fact highly complicated and controversial, with the revisionist account of individual self-defense being one among others.

Furthermore, and more problematic, the solution that Forster and Taylor propose does not eliminate contested concepts. They contrast revisionism with their own “possible remedy,” namely with what they call “minimalism.” According to this approach, “the laws governing the resort to force in international law” should resemble “an even simpler self-defense model than even the revisionists had in mind,” namely one that “largely outlaw[s] the use of force except in cases of direct physical violence against individuals” (Forster and Taylor, 2021: 14). But this minimalist just cause for war can also be contested. What kind of violence would justify war? How much? And against how many individuals? If any kind of violence—against even a few individuals—would be the threshold, that could justify a lot more wars than they would be willing to account for in their defense of minimalism. Moreover, direct life-threatening harm to individuals can also be inflicted by non-violent means. Forster and Taylor discuss the changed character of war, and indeed in this day and age, individuals can be directly harmed without the use of military force, for example, by way of a devastating cyber-attack or violation of subsistence rights. Their proposal might be too permissive in some ways, and too restrictive in others.

Also, in relation to the distinction between exceptionalism and reductivism, it is unclear how their proposed just cause criterion is justified. Do they think that revisionists do not reduce the morality of war to the morality of individual self-defense in the right way? That would mean that the revisionist conception of the self-defense model is not correct and that their “even simpler self-defense model” is the ordinary model (Forster and Taylor, 2021: 14). Or rather, do they think that the individual self-defense model is not simple enough and in need of simplification for the global sphere? That would amount to an alternative form of exceptionalism. Moreover, if the rules of war were to be based on an artificially simple alternative to the (correct but complicated) self-defense model, then this raises the question why one should accept it and apply it to war. For a full and convincing account, they would have to specify the scope of their minimalist just cause for war, explain why this excludes direct harm to individuals inflicted by non-violent means, and provide a solid foundation and justification for it.

These nuances show that not all that is supposedly simple is that simple, and not all that is supposedly vague is that vague. But while their analysis oversimplifies things, central concepts are definitely contested. In fact, in a field as popular as just war theory, basically every rule and concept is debated and contested. It might be impossible to completely avoid contested concepts. Nonetheless, since the action-guiding ability of a theory depends on it being sufficiently specific, it is important to try to clarify these rules and concepts as much as possible. Such clarification could reduce the risk of misuse, but their proposal does not yet seem to achieve that at this point, as this alternative just cause criterion seems to be equally open to interpretation.

Now suppose that the criterion does further limit jus ad bellum and “justify far fewer wars than the status quo does” (Forster and Taylor, 2021: 14), setting a very high threshold for when war is justified. It might be that while specifying rules can increase compliance in general, significantly raising the standard for the justification of war does not. Just war theory is an action-guiding theory, and therefore the divergence between what is feasible and what is morally required should not be too great (Lee, 2012: 292). When that is the case, for example, when a rule poses a large obstacle to the pursuit of national interests, the rule is likely to be ignored. Effectively regulating war in the global sphere requires a certain balance between feasibility and desirability. Circumstances (such as politics, institutions, and culture) and psychological motivations (such as national interests and humanitarian considerations) must be incorporated in just war theory insofar as they constrain the practical feasibility of limiting war and achieving peace in the real world. In order to have practical impact, just war theory needs to offer norms which are both achievable (not overly restrictive or demanding) as well as. ¹⁸ One can wonder, then, whether a very restrictive just cause criterion would perform well in preventing unjust wars. ¹⁹

Peace and jus post bellum

Another contested concept that Forster and Taylor discuss is peace. While many just war theorists would agree that a “just peace” is the goal of just war theory, they fundamentally disagree on what constitutes such a peace (Peperkamp, 2020a). Forster and Taylor delineate a negative peace and a positive peace (Galtung, 1969); the former is characterized by the absence of violence, and the latter by the absence of structural violence and an improvement in terms of justice (Forster and Taylor, 2021: 7). Walzer adopts a rather negative conception of peace, and although that is not “just any peace,” the relationship between peace and justice is understood in a rather minimal way (Walzer, 2012: 37). It is a “peace-with-rights, a condition of liberty and security,” and that means that post-war behavior is restricted to resistance, restoration, and reasonable prevention (Walzer, 2015: 51). However, Forster and Taylor are right in recognizing that many other theorists “employ a morally-laden notion of peace” (Forster and Taylor, 2021: 8).

In addition to Anthony Coady and AJ Coates, who occupy the conceptual middle ground between a negative and positive conception of peace (Coady, 2008 and Coates, 2016), there are others who endorse a fully positive peace. Working in the Catholic tradition, Mark Allman and Tobias Winright state that there is a very strong connection between peace and justice (Allman and Winright, 2010: 13). They defend a just peace that entails a certain political regime, robust human rights, and “social, political, economic, religious, and cultural conditions that allow citizens to flourish, to pursue lives that are meaningful and worthy” (Allman and Winright, 2010: 159). And Cécile Fabre, one of the revisionist theorists that Forster and Taylor refer to, also equates a just peace with a positive peace. Peace is “a state of affairs where all individuals actually enjoy their human rights to the freedoms and resources they need to lead a flourishing life” (Fabre, 2016: 12). The capability to flourish means that individuals are autonomous (able to pursue their own conception of the good) and includes bodily integrity, basic health, emotional and intellectual flourishing, and control over material resources and political environment (Fabre, 2012: 19). This leads to comprehensive rules on post-war behavior.

Forster and Taylor oppose such a positive conception of peace. While we must certainly be careful to integrate such a concept of peace into just war theory, it is not because “it will lead these theorists to endorse more wars than they otherwise might” (Forster and Taylor, 2021: 8). If that would be the case, pursuing peace in this expansive and positive sense would definitely undermine the prospect of a peaceful word. This is precisely part of the problem that Forster and Taylor identify: the failure of just war theory to advance its own central goal. However, those who endorse such a morally-laden notion of peace do not adopt that same notion as a just cause for war; it is not even the case that a positive peace necessarily goes hand in hand with a permissive jus ad bellum. This has two reasons.

First, it is important to draw attention to the proper place and function of the goal of peace in just war theory. Peace as “the proper object of war” (Forster and Taylor, 2021: 2) does not refer to the abolishment of war altogether. While just war theory indeed limits war, it also specifies the conditions under which war can be justified, how it should be waged, and how the transition from war back to peace is best shaped. These respective issues make up the three branches of just war theory: jus ad bellum, jus in bello, and jus post bellum. The assumption is that some wars can be justified. The goal of peace in the context of just war theory, then, is the peace after war, whereas peace in the general sense is central in preventive peacebuilding or jus ante bellum. Just war theory itself “does not shoulder an entire morality of peace building” (Evans, 2012: 36).

Second, and more specifically, it is important to disentangle jus ad bellum and jus post bellum. Since the goal of peace in the context of just war theory refers to the post-war situation, shaping the transition from war back to peace, it particularly influences jus post bellum. Aiming to realize a negative peace after war leads to minimalist jus post bellum rules (characterized by a short timeframe, mostly negative obligations, and a small variety of tasks), whereas a positive peace after war requires maximalist jus post bellum rules (characterized by a long timeframe, negative and positive obligations, and a large variety of tasks) (Peperkamp, 2014). While there are some links between jus ad bellum and jus post bellum, for example, since the post-war peace is relevant when assessing the jus ad bellum criterion of likelihood of success and because the cause for war (repelling aggression or humanitarian intervention) gives rise to specific post-war obligations, the two branches are conceptually distinct. They are independent in that they consist of different sorts of action-guiding rules, govern different activities, and are often applicable at distinct periods in time. They are judged separately, and ultimately add up to make the war overall more or less justified (Peperkamp, 2020b).

I would like to suggest that the minimalism that Forster and Taylor propose be applied to jus post bellum instead of jus ad bellum. Rather than aiming to abolish war and secure world peace, just war theory can help bring about a just peace after war. A just peace after war, then, does not need to be a fully positive peace. If lessons can be drawn from the Iraq Inquiry report, an important one is that caution and limited objectives are preferable to idealistic and overly optimistic objectives (Chilcot, 2016: 134–136). Post-war situations, such as those that ensued in Iraq, indicate that peacebuilding after war is often far more difficult than expected. The challenge really is enormous. Therefore, it is wise to be humble, deliberate, and careful, for example, by considering the risks and consequences, setting realistic goals, making a feasible plan, reserving funds, and acknowledging that actions can create responsibilities. ²⁰ Again, setting a moral standard that strikes a good balance between feasibility and desirability can increase compliance with jus post bellum rules.

Additionally, given the place and function of peace in just war theory, it seems that integrating a positive peace exceeds the limited nature of just war theory. It will make jus post bellum an ongoing process with no clear end in sight, guided by an ideal of a just world in the distant future. Given the specific situation to which just war theory applies, and the coercive context in which states generally act outside their own territory, potentially impeding the self-determination of their (former) adversaries, this overstretches the theory’s boundaries. Just war theory is there to protect the most fundamental human rights in the messy reality of war and its aftermath, it is not a vector for the realization of human rights broadly perceived (Peperkamp, 2020a). Instead of pursuing the ideal of human flourishing in the aftermath of war, all the examples mentioned in the introduction of this article would look dramatically better if a modest middle of the road peace was realized; a somewhat stable peace in which people are secure and see their most basic human rights protected. Obviously, there are many desirable values that would be realized when peace and justice are strongly connected, but steps towards a positive peace should take place outside the domain of just war theory. ²¹

Conclusion

According to Forster and Taylor, most wars are unjust wars. Adopting “direct physical violence to individuals” as just cause for war should restrict the occurrence of unjust wars. They address a very real problem, which divides into three more specific problems: (1) the vagueness of rules and the risk of the theory being abused; (2) the occurrence of unjust wars; and (3) the difficulty of securing peace after war. In this article, I have expressed doubts that the proposed remedy actually solves these problems. Indeed, it seems that the risk of manipulation and misuse can be reduced by making the rules as specific as possible. This generally improves the action-guiding ability of a normative theory. Rules are most stable when they are well-formulated and leave little room for various interpretations (Forster and Taylor, 2021: 16). ²² As I have shown, their proposed just cause rule would require further specification and grounding to be the “powerful barrier to dubious justifications that play on the vagueness of these concepts” (Forster and Taylor, 2021: 14). As it stands, their just cause for war is equally susceptible to various interpretations, and thus leaves the door to manipulation open. This elaboration would also make clear whether or not the rule actually is minimalistic; it might rather allow more “just” wars, for example, under the heading of humanitarian interventions to protect individuals abroad from direct violence far below the threshold of mass atrocities. Also, while they address the concept of peace, they fail to connect peace to the branch that it is most relevant for: jus post bellum. Adopting a modest middle of the road concept of peace to shape jus post bellum and set a realistic standard for post-war behavior could improve the likelihood of realizing peace in the aftermath of war. In this context, peace is best perceived as a modest peace where the most basic human rights are secure, and not one in which all individuals are capable of leading flourishing lives.

To warn against “asking the fox to guard the chicken coop” refers to the risk of assigning a job to someone who is eager to exploit the situation, to assign a protective task to someone who can be identified with the threat, and/or to put someone in charge of enforcing rules against him/herself. While Forster and Taylor (2021) claim that “only by adopting more minimal, and better specified, rules can we prevent the situation” (p. 16), it is hard to see how their proposal could prevent that. So long as there is no authoritative global arbiter to pass objective judgment on the use of force or permissible behavior in international relations, nor an authoritative global police force to enforce the rules, the fox will guard the chicken coop. Replacing one concept for another changes the job description, but removes neither the fox nor the chickens. The risk will remain. We might, of course, try to restrain the fox. The clearer the rules, the more difficult it is to get around them. Moreover, when these rules strike a good balance between feasibility and desirability, they are easier to comply with and hence more likely to be followed. To increase the likelihood that the fox will protect (not eat) the chickens, we must strive for clear, specific, and feasible rules of war and post-war peacebuilding.