Abstract
This paper offers a non-reductivist account of the requirement of legitimate authority in warfare (RLA). I first advance a distinction between private and public wars. A war is private where individuals defend their private rights with their private means. A war is public where it either aims to defend public rights (e.g., a people’s right to self-governance) or relies on public means (e.g., conscription and taxation). I argue that RLA applies to public war but not private war. A public war waged by a belligerent without legitimate authority involves a form of illegitimate domination of the people. Contra the conventional wisdom that RLA is only an ad bellum principle, I show that RLA is also a vital in bello principle. Relying on the Kantian non-voluntarist account of political authority, I argue that only legitimate states have the right to wage public wars. However, I also contend that RLA is not an absolute requirement, even regarding the justice of public war. Under extremely unfavorable conditions, this requirement may be overridden by weighty considerations in favor of resorting to public war without legitimate authority. In sum, my account of RLA protects ordinary people from illegitimate coercion involved in guerrilla warfare in general yet generates proper permission for responsible, aspiring state founders to secure social justice by coercive means under extraordinary situations.
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Notes
RLA has an impressive pedigree that dates back to Augustine and Aquinas in the western tradition (see Russell, 1975). Confucianism, the mainstream classic Chinese philosophy, holds a similar criterion (Twiss & Chan, 2007). For contemporary elaborations of RLA, see, for example, Coates (1997), Orend (2000) and Johnson (2005).
By extension, the conventional conception of RLA also confers the right to resort to war on coalitions of states and, occasionally, quasi-states that have a credible claim to statehood.
This example is largely adapted from Fabre (2008, 969).
As noted, Oppression could be developed into two variants depending on whether B-population is a minority group under A’s jurisdiction or constitutes an independent state. Since the crucial question examined in this paper is whether non-state agents have a right to resort to war, I assume that B-population is a minority group under A’s jurisdiction in my following discussions of Oppression and related cases unless otherwise specified.
I borrow the term from Parry (2018, 326).
Grotius (2005, 240) first proposes the distinction between private and public war, where he says: “[P]ublick War [is that] which is made on each Side by the Authority of the Civil Power. Private War is that which is made between private Persons, without publick Authority. Mixed War is that which is made on one Side by publick Authority, and on the other by mere private Persons.” Thus, according to Grotius, if we evaluate the nature of war for each side, one side’s war is private insofar as it is waged by private persons. However, I will argue that some wars are inherently public, i.e., wars that fight for public rights or with public means even if they are waged by private persons. My distinction between public and private war is similar to Lazar (2016, 212–213)’s. Indeed, my overall position and Lazar’s converge on some important points, as will be noted throughout the paper. Here I will mention an overarching difference between our approaches. While Lazar understands the right to fight public war in terms of authorization that allows the transfer of reasons from the members of a community to the fighters, I analyze it in terms of legitimate authority to implement univocal decisions for a community amid disagreements. According to my account, an agent acquires the right to wage public war on behalf of a community, not because of the members’ authorization but because it competently administers justice for them.
Benbaji (2018) offers a non-reductivist defense for RLA without relying on the Kantian framework. For reasons of space, I cannot fully compare my argument with Benbaji’s, but I would note one difference. Though Benbaji’s distinction of the actor (the belligerent), the beneficiary, and the bearer (who provides resources) is helpful, I do not find it illuminating to posit—as he does—different sorts of authority (i.e., Political Society Authority, Beneficiary Authority, and Bearer Authority) for a war. As I see it, when the actor, the beneficiary, and the bearer of a war refer to different communities, the issue of legitimate authority may arise within each of them but not between them. For example, when the US intervened to defend South Korea against North Korea, the US’s Korean war had the US as the actor and South Korea as the beneficiary. I take it to be an issue of authority that the US government resorted to war on behalf of Americans, and that the South Korean government consented to the US intervention on behalf of South Koreans. However, I do not think that South Korea exercised authority (Beneficiary Authority in Benbaji’s term) over the US by its consent. As sovereign states with equal standings, South Korea had no authority—general or specific—over the US. Rather, by consenting to the US’s intervention, it lifted a moral constraint that otherwise applied to the US, i.e., not to interfere with other states’ internal affairs.
Reitberger (2013, 68–71) offers more extensive criticism of a restrictive definition of war.
Note that all properly acquired private means constitute private rights, but the opposite may not be true. For example, a person has the right to privacy, but privacy is seldom a means, understood as something used to pursue something else. When something—e.g., a private property—can be construed both as a private right and as a private means, the former emphasizes that it is supposed to be protected against others’ infringement, and the latter emphasizes that it can be used by the right-holder as she sees fit.
Three main positions exist regarding moral liability to defensive forces. The most permissive position holds that direct causal contribution to an unjustified threat is sufficient to render an agent morally liable to defensive force (see, e.g., Anscombe, 1979; Thomson, 1991; Fabre, 2012). The most stringent position holds that only moral culpability for an unjustified threat is sufficient to generate liability to defensive force (see, e.g., McMahan, 1994; Otsuka, 1994). Between the two extremes lies the position that agential responsibility for an unjustified threat renders an agent morally liable to defensive force (see, e.g., Coady, 2008; Rodin, 2008; McMahan, 2009). Under any reasonable construal, state A is culpable for the persistent oppression that it imposes on B-population. Thus, even according to the most stringent position of moral liability, A is liable to proportionate and necessary defensive force. The fact that state A is morally liable to the defensive force does not automatically entail that A’s soldiers are liable to defensive force. Nevertheless, if just war is possible at all, there must be a morally defensible way to generate liability for A’s soldiers based on the fact that they serve on the unjust side. Different theorists try to achieve this in different ways, and I do not intend to settle the controversy here.
The problem of unilateral enforcement of rights plays a crucial role in grounding political authority, especially for both Locke (1988) and Kant (1996). While Locke sees unilateral enforcement as a source of inconveniences, Kant sees it as inherently falling short of justice. Their disagreement should not concern us here, and we will revisit the issue in Part 4.
Indeed, Stilz (2014a, footnote 21) would not endorse such a reading.
A reviewer of Philosophical Studies raises a further concern regarding my qualified endorsement of private war. As will become clear in Part 4, according to the Kantian account that I embrace, people’s private rights are—to a great extent—defined by the legitimate laws of the state. As Kant (1996, 409–410) emphasizes, titles to private properties are conclusive only in a civil condition. In War against Oppression I, since state A persistently and severely oppresses B-population, A’s laws and the property rights established according to those laws seem to lack legitimacy. Consequently, B-members seem to lack conclusive property rights. Thus, how can B-militia rightfully fight against A with its members’ private properties? I believe that this concern can be adequately addressed in ways consistent with the Kantian framework. The first strategy—inspired by Ladenson (1980, footnote 14)—is to deny that A’s laws lose legitimacy wholesale. Among A’s laws, one may distinguish oppressive laws—such as the undue regulations for freedom of speech and freedom of religion—and laws that are not oppressive, which may include laws on property, contract, and so forth. Assuming that the first set of laws lack legitimacy, one may argue that the second set remains legitimate and ratifies private property rights for B-members. The second strategy is to concede that B-members lack conclusive property rights but maintain that they have provisional property rights to their belongings. Stilz (2014b) argues that though provisional rights can be legitimately altered in the future by a rightful public authority, they bind others in the state of nature insofar as they are acquired in some permissible ways. Accordingly, if B-members acquire their belongings permissibly, they are entitled to use them to pursue their ends. The final strategy—inspired by Cornell (2016)—does not appeal to the presumptive binding force of provisional rights. Rather, it contends that insofar as B-members acquire their personal belongings according to A’s laws—e.g., by legal employment, trade, and inheritance—state A and its agents in particular lack moral standing to challenge their ownership. Thus, B-members are permitted to employ their belongings to fight against A. Though I lack space to pursue it further, it is plausible that at least one of the above strategies will work out. Thus, I see no incoherence in my endorsement of private war along with the Kantian framework. Thanks to the reviewer for inviting me to address this concern.
Lazar (2016, 223–224) makes a similar point.
Lazar (2016, 213) also emphasizes that the question of proper standing to fight can arise at least partly due to the employment of public means.
I draw on this assumption in various places but will not defend it until Part 4.
I will argue in Part 5 that lacking legitimate authority does not necessarily render a war unjust overall. Thus, depending on the circumstance, C’s officers may be morally permitted to command C’s troops to intervene in Intervention II despite their lack of legitimate authority.
It is controversial how to define a people qua a collective body that holds the right to self-governance. Two approaches to this question are the statist and the non-statist accounts. According to the statists (e.g., Ripstein, 2009), the people are simply the citizenry of a state constituted by and through the institutions of the state. According to the non-statists, it is possible to identify a people as the bearer of the right to self-governance without referring to an existing state. The non-statist camp is more diverse. While nationalists (e.g., Miller, 2012) rely on cultural and historical ties to define a people, non-nationalists (e.g., Beran, 1987; Moore, 2015; Wellman, 1995) rely on voluntary association based on the shared political aspiration for collective self-determination. Theorists in the latter camp have offered the most liberal conception of the people, but they (Moore, 2015, 49–62; Beran, 1987, 41–42; Wellman, 1995, 161) always add various provisos, which at a minimum include that members of the group are territorially concentrated in an area that they legitimately occupy and are able to sustain a viable independent state. Since even the most liberal conceptions of a people have demanding provisos, it means that belligerents lack absolute liberty to gerrymander their constituents.
A belligerent’s fighting for public rights is compatible with its fighting for certain private rights, e.g., people’s lives and limbs, at the same time.
See also Small and Singer (1982, 215).
Simmons (1979, 72) makes this point as he argues against the attempt to ground state legitimacy on majority consent.
Note that while Kantians agree that South Africans cannot rightfully fight against apartheid, they think that this is because they lack a legitimate state rather than unanimous consent.
While the absence of unanimous consent is often a deadlock regarding collective decisions among private persons standing as equals, the same is not true regarding public decisions made by legitimate states. As will become clear in Part 4, unlike the exercises of private rights, the legitimate exercises of public rights never depend on subjects’ individual consent.
What I have in mind is a quasi-state that has sufficiently acquired the capacities of a legitimate state and has a credible claim to full-fledged statehood.
Ripstein (2004) offers an excellent articulation of this point.
As I use the term, non-state groups do not include quasi-states that have virtually achieved statehood respecting the population on behalf of which it allegedly fights.
Arguments offered in this part, mutatis mutandis, apply to illegitimate states, which, like non-state agents, lack a right to wage public wars on behalf of the people.
Buchanan (2013, 309–314) provides a more elaborate argument for the point. Also, see Lazar (2016, 224). Kutz (2005) argues that combat privileges should be extended to non-state belligerents when they achieve an internal ordering, fight for legitimate political aims, and have a reasonable chance of success. I largely agree with his conclusion but disagree with his attempt to ground combat privileges on combatants’ shared intention to achieve certain political aims (Kutz, 2005, 176). Suppose that a drafted US soldier in combat does not at all share the political goals of the war. For the sake of argument, we can further suppose that this soldier—as a philosophical anarchist—does not even subscribe to his US citizenship. If Kutz is correct, it is hard to see why this soldier should enjoy combat privileges. However, to deny him such privileges is implausible—not to mention that it also contradicts the laws of war. As I have argued, a political community is ultimately united by common laws rather than contingent convergences of individuals’ intentions. When a state wages wars on reasonable grounds, combatants fighting as its agent should enjoy combat privileges regardless of their personal stance. This is—I argue elsewhere—due to the institutionalized moral division of labor where certain officials (e.g., the Congress and the President in the US) are exclusively vested with the power to make war-related decisions and impose their decisions on the whole community coercively. Assume that a non-state group has all-things-considered permission to fight a public war on behalf of a community, i.e., roughly when its war has a just cause and satisfies the pertinent constraints of necessity and proportionality even after considering the illegitimate coercion involved. Its combatants—regardless of whether they share the group’s political aims—should also enjoy combat privileges since the group is permitted to fight on behalf of the community.
Lazar (2016, 224) makes a similar point. However, while democracy plays an important legitimizing function in his account, that role is served by the rule of law in mine. Democracy understood in terms of majority rule has no legitimating power in itself, as Part 3 shows. However, understood in terms of equal political participation, democracy constitutes a regulative ideal that the rule of law should incorporate. As people are coercively subject to the laws, they ought to have an equal voice in shaping the law at a fundamental level.
This is at least true as a pro tanto matter. If legitimate directives have preemptive power (Raz, 1986, 57–69) or presumptive force (Renzo, 2019), citizens’ obligation to obey the state’s war-related decisions may often be conclusive. Here I take no stance regarding how best to understand political obligations.
Parry (2017, 169–189) also emphasizes this effect of RLA.
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Acknowledgements
For feedback on previous versions of this article, I am grateful to D. Black, Daniel Ferguson, Carlos Hernandez, Shelly Kagan, Yao Lin, Andrew Moon, Gideon Yaffe, two anonymous reviewers at Philosophical Studies, and audiences at the 2019 Concerned Philosophers for Peace Conference and the 2019 Yale Summer Session Faculty Lecture Series. I owe special thanks to Stephen Darwall, Scott Shapiro, and Arthur Ripstein for their steady guidance and tremendous support as I worked on this project.
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Yuan, Y. Public war and the requirement of legitimate authority. Philos Stud 179, 265–288 (2022). https://doi.org/10.1007/s11098-021-01659-4
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DOI: https://doi.org/10.1007/s11098-021-01659-4