Abstract
David Rodin denies that defensive wars against unjust aggression can be justified if the unjust aggression limits itself, for example, to the annexation of territory, the robbery of resources or the restriction of political freedom, but would endanger the lives, bodily integrity or freedom from slavery of the citizens only if the unjustly attacked state (or someone else) actually resisted the aggression. I will argue that Rodin’s position is not correct. First, Rodin’s comments on the necessity condition and its relation to an alleged “duty to retreat” misinterpret the law, and a correct interpretation of the law is not only compatible with, but implies a permission to resist the “bloodless invader,” and this is also the correct view from the perspective of morality. Second, Rodin’s remarks on the proportionality of self-defense against conditional threats focus on physical or material harm but implausibly ignore the severity of the violations of autonomy and of the socio-legal or moral order that such conditional threats involve. Third, I will address Rodin’s claim that (“often”) defensive wars against “political aggression” are disproportionate because they risk the lives of those defended in an attempt to secure lesser interests. I will argue that this take on proportionality misses the point in an important respect, namely by confusing wide and narrow proportionality, and makes unwarranted assumptions about the alleged irrationality or impermissibility of incurring or imposing lethal risks to safeguard less vital interests. Next, I will also show that while Rodin talks of a “myth of national self-defense” and of the necessity of moving beyond traditional just war theory and international law, it is actually his interpretation of just war theory and international law that weaves myths. Finally, I will argue that Rodin’s views on national self-defense on the one hand, and “war as law enforcement” on the other, are incoherent.
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Notes
The first reason refers to the fact that combatants in war are allowed to use force also against non-imminent threats (Rodin 2002, 127). I agree with Rodin that such use of force can indeed not count as self-defense and must therefore be justified in other ways; see Steinhoff (2007, 98–101). However, pointing out that certain uses of violence in war are not defensive is not the same as showing that forms of killing in war that are defensive are unjustified: in other words, it is not the same as showing that there cannot be justified self-defense against political aggression.
Sangero defends the duty to retreat in the end (with certain severe qualifications incompatible with Rodin’s position). Since I do not share his proportionality assessments (and certain other elements of his analysis), I disagree with his conclusion. This need not concern us here.
It should be noted that exactly this argument, although in other terms, had already been made before Rodin by Richard Norman (1995, 134–135). There Norman also distinguishes between what Rodin calls the reductive strategy on the one hand and the analogical strategy on the other.
I thank the German law professors Christoph Enders and Jan Sorth for kindly answering questions of mine on this issue.
Incidentally, Rodin’s talk about “imminence” is misleading. If the mugger is willing to act on his threat, then the threat to the victim’s life is imminent if the victim will not give in. The point is simply that the threat is conditional, whether imminent or not.
See on this also Øverland (2010).
See, to give only one example, Locke’s discussion in the Second Treatise, Ch. II. I am not aware of any natural law theorist not embracing the dual theory.
Rodin knows that, and acknowledges it towards the end of War and Self-Defense (Rodin 2002, 174): “The idea that defensive wars may be a form of law enforcement has a long and distinguished history.” Indeed, it has. However, in his whole preceding critique of war as self-defense he simply ignores this long and distinguished history.
Rodin, unfortunately, fails to mention Norman, Narveson or my humble self in that context.
See on this also Uniacke (2011, 254).
Compare McMahan’s (2009, 20–21) distinction between “narrow” and “wide proportionality”. As my final distinction shows, I prefer to distinguish between two kinds of “wide proportionality.”
David Rodin, “The Myth of National Self-Defence,” unpublished ms., on file with author, p. 11, my emphasis. He explains: “A conditional threat is one that has the structure of the old highwayman’s cry: ‘your money or your life!’ Analytically it consists in two distinct components—a direct threat to a lesser interest (the money) and a contingent threat to a greater interest (the life). The antecedent of the contingent threat is resisting the direct threat to the lesser interest.” Ibid, p. 11. Rodin’s paper should appear in Cécile Fabre and Seth Lazar, The Ethics of Defensive War (Oxford: Oxford University Press, forthcoming). Since I have published a paper entitled “The Moral Equality of Modern Combatants and the Myth of Justified War” (Steinhoff 2012), I should emphasize the difference between Rodin and me: while I argue, ex post, as it were, that in reality there are (virtually) no justified wars, Rodin tries to provide an a priori argument for the claim that wars of national self-defense (against political aggression) are impossible in principle.
Rodin, “The Myth of National Self-Defence,” p. 13.
For a discussion of war pacifism or “contingent pacifism,” see Steinhoff (2007, 52–59 and 76–101).
Rodin, “The Myth of National Self-Defence,” pp. 11–12.
Ibid., p. 10.
Ibid., p. 17.
Ibid., p. 16.
Ibid.
Ibid., p. 14.
Ibid. Incidentally, Rodin does not mention the “familiar problems” with consent when he himself relies on it to support his account of punishment. See Rodin (2002, 176–177).
For a related application of this idea of the fair imposition of an ex ante risk to life, see McMahan (2010, esp. 363).
Rodin, “The Myth of National Self-Defence,” p. 2.
Ibid., p. 4.
Ibid.
Ibid., p. 5.
Ibid., p. 2.
Ibid., p. 8.
A prime example—and a quite representative one for the views of traditional just war theorists on this matter—is of course section 3 of Francisco de Vitoria’s “Of the Indians Lately Discovered,” for easy access, see http://en.wikisource.org/wiki/De_Indis_De_Jure_Belli/Part_2.
Rodin, “The Myth of National Self-Defence,” p. 16.
A right to self-defense was, based on the Decretum, taken for granted by traditional just war theorists, including, of course, Suarez and Vitoria. Molina, in turn, can almost count as precursor of possessive rights-individualism. See Kaufmann (2007, 205–226). As regards the centrality of rights in Hugo Grotius’s theory, refer to the entry on rights in Grotius (2005, 1946–1947).
Rodin, “The Myth of National Self-Defence,” p. 17.
Rodin has commented on a draft of Ilsaas’s article and is thus aware of Blair’s challenge, as Ilsaas’s acknowledgements confirm.
While Rodin’s (2002, 175–179) exclusion of the moral possibility of private punishment amounts to little more than stipulation, it is at least correct that private punishment as law enforcement is legally prohibited in Western jurisdictions. However, other forms of private law enforcement are legally expressly permitted, including crime prevention, citizen’s arrest and, of course, self-and other-defense. As this fact undermines Rodin’s whole argument, it might perhaps explain why he prefers to focus on punishment.
See the previous note.
Rodin, “The Myth of National Self-Defence,” p. 5.
I thank the participants of the conference “Pacifism: Still the Issue?”, 12th International Law and Ethics Conference Series (ILECS), University of Belgrade, 21–23 June 2012, for useful comments on some arguments further developed in this paper. I also thank my colleagues from the Department of Politics and Public Administration of the University of Hong Kong for comments on this paper during a departmental presentation. I owe special thanks to Bernhard Koch, Michael Neu, and William H. Shaw for helpful written comments.
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Steinhoff, U. Rodin on Self-Defense and the “Myth” of National Self-Defense: A Refutation. Philosophia 41, 1017–1036 (2013). https://doi.org/10.1007/s11406-013-9452-3
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DOI: https://doi.org/10.1007/s11406-013-9452-3