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Legitimate Authority and the Ethics of War: A Map of the Terrain

Abstract

Despite a recent explosion of interest in the ethics of armed conflict, the traditional just war criterion that war be waged by a “legitimate authority” has received relatively little attention. Moreover, of those theorists who have addressed the criterion, many are deeply skeptical about its moral significance. This article aims to add some clarity and precision to the authority criterion and the debates surrounding it, and to suggest that this skepticism may be too quick. The first section analyzes the authority criterion and reveals that there are at least two distinct moral claims associated with it, each requiring separate evaluation. The second section outlines an increasingly influential “reductivist” approach to just war theory, explaining how this approach grounds powerful objections to the authority criterion. The third section sketches the most promising strategies for providing a qualified defense of authority, while acknowledging the further questions and complications these strategies raise. Importantly, the article aims to rehabilitate the authority criterion from within a broadly reductivist view.

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1 See Russell Frederick, The Just War in the Middle Ages (Cambridge: Cambridge University Press, 1977); and Wilson Heather, International Law and the Use of Force by National Liberation Movements (Oxford: Oxford University Press, 1988), ch. 1.

2 For a detailed list of references, see my “Civil War and Revolution,” in Helen Frowe and Seth Lazar, eds., The Oxford Handbook of Ethics of War (Oxford: Oxford University Press, forthcoming). In addition, see Fabre Cécile, “Cosmopolitanism, Just War Theory and Legitimate Authority,” International Affairs 84, no. 5 (2008), pp. 963–76; Yitzhak Benbaji, “Legitimate Authority in War,” in Frowe and Lazar, Oxford Handbook of Ethics of War; Reitberger Magnus, “License to Kill: Is Legitimate Authority a Requirement for Just War?International Theory 5, no. 1 (2013), pp. 6493 ; Heinze Eric A. and Steele Brent J., eds., Ethics, Authority, and War (New York: Palgrave Macmillan, 2009); Lang Anthony F. Jr., O'Driscoll Cian, and Williams John, eds., Just War: Authority, Tradition, and Practice (Washington, D.C.: Georgetown University Press, 2013); Blair Robert and Kalmanovitz Pablo, “On the Rights of Warlords: Legitimate Authority and Basic Protection in War-Torn Societies,” American Political Science Review 110, no. 3 (2016), pp. 428–40; Stilz Anna, “Authority, Self-Determination, and Community in Cosmopolitan War,” Law and Philosophy 33, no. 3 (2014) pp. 309–35; Steinhoff Uwe, On the Ethics of War and Terrorism (New York: Oxford University Press, 2007), ch. 1; and Kutz Christopher, On War and Democracy (Princeton: Princeton University Press, 2016), ch. 3.

3 I defend these claims in much more detail in Parry Jonathan, “Just War Theory, Legitimate Authority, and Irregular Belligerency,” Philosophia 43, no. 1 (2015), pp. 175–96. In his contribution to this special section, Pål Wrange argues that, as a matter of international law, the notion of authority in war may in fact be much more diverse than I have suggested.

4 For similar interpretations, see Fabre Cécile, Cosmopolitan War (Oxford: Oxford University Press, 2012), p. 160; Finlay ChristopherLegitimacy and Non-State Political Violence,” Journal of Political Philosophy 18, no. 3 (2010), pp. 287312 ; and Reitberger, “License to Kill.” See also Coates A. J., The Ethics of War (Manchester: Manchester University Press, 1997), ch. 5.

5 For a recent endorsement, see Brunstetter Daniel, “ Jus ad Vim: A Rejoinder to Helen Frowe,” Ethics & International Affairs 30, no. 1 (2016), pp. 131–36.

6 See Reichberg Gregory M., “The Moral Equality of Combatants – A Doctrine in Classical Just War Theory? A Response to Graham Parsons,” Journal of Military Ethics 12, no. 2 (2013), pp. 181–94.

7 As George Fletcher points out, “Until the Statute of Henry VIII, passed in 1532 . . . there was no theory of self-defense that rendered a killing fully lawful, justifiable and therefore free of the taint that affected excusable homicide.” Fletcher George, “Defensive Force as an Act of Rescue,” Social Philosophy and Policy 7, no. 2 (1990), p. 171.

8 For discussion, see, Kutz, On War and Democracy, ch. 3.

9 McMahan Jeff, Killing in War (New York: Oxford University Press, 2009); Fabre, Cosmopolitan War; and Frowe Helen, Defensive Killing (New York: Oxford University Press, 2014). See also Draper Kai, War and Individual Rights (New York: Oxford University Press, 2016).

10 Here I draw on Lazar Seth, “National Defence, Self-Defence, and the Problem of Political Aggression,” in Fabre Cécile and Lazar Seth, eds., The Morality of Defensive War (New York: Oxford University Press, 2014), pp. 1139 .

11 Glover Jonathan, Causing Death and Saving Lives (London: Penguin, 1977), pp. 251–52. For an analogue of the continuity thesis applied to the use of force by state officials outside the context of war, see Gardner John, “Criminals in Uniform,” in Duff Anthony, Farmer Lindsay, Marshall Sandra, Renzo Massimo, and Tadros Victor, eds., The Constitution of the Criminal Law (Oxford: Oxford University Press, 2013), pp. 97118 .

12 Lazar, “National Defence, Self-Defence, and the Problem of Political Aggression,” p. 12.

13 See McMahan Jeff, “War as Self-Defense,” Ethics & International Affairs 18, no. 1 (2004), pp. 7580 .

14 See Nickel James W., “Griffin on Human Rights to Liberty,” in Crisp Roger, ed., Griffin on Human Rights (New York: Oxford University Press, 2014), p. 200.

15 See Ferzan Kimberly, “Self-Defense and the State,” Ohio State Journal of Criminal Law 5, no. 2 (2008), pp. 449504 .

16 McMahan Jeff, “Just War,” in Goodin Robert E., Pettit Philip, and Pogge Thomas, eds., A Companion to Contemporary Political Philosophy, 2nd Edition (Oxford: Blackwell, 2007), p. 671. For further reductivist rejections of the restrictive authority criterion, see Fabre, Cosmopolitan War, chs. 3–4; McMahan Jeff, “Just Cause for War,” Ethics & International Affairs 19, no. 3 (2005), pp. 121 , especially p. 4; and Steinhoff, On the Ethics of War and Terrorism, ch. 1.

17 Fabre, Cosmopolitan War, pp. 144–45. See also Steinhoff, On the Ethics of War and Terrorism, p. 20; Steinhoff Uwe, “What is War?—And Can a Lone Individual Wage One?International Journal of Applied Philosophy 23, no. 1 (2009), pp. 133–50; and Pattison James, “When Is It Right to Fight? Just War Theory and the Individual-Centric Approach,” Ethical Theory and Moral Practice 16, no. 1 (2013), pp. 3454 , especially p. 53.

18 See McMahan, Killing in War.

19 McMahan Jeff, “War,” in Estlund David, ed., The Oxford Handbook of Political Philosophy (Oxford: Oxford University Press, 2012), 298315 , at p. 310 (my emphasis).

20 In a talk given at Stockholm University in May 2014, McMahan explicitly labeled this view the “No Extensions Principle.”

21 Finlay, “Legitimacy and Non-State Political Violence”; Finlay Christopher, Terrorism and the Right to Resist (Cambridge: Cambridge University Press, 2015); Schwenkenbecher Anne, “Rethinking Legitimate Authority,” in Allhoff Fritz, Evans Nicholas G., and Henschke Adam, eds., Routledge Handbook of Ethics and War (Abingdon: Routledge, 2013), pp. 161–70; Lazar Seth, “Authorisation and the Morality of War,” Australasian Journal of Philosophy 94, no. 2 (2016), pp. 211–26. See also McPherson Lionel K., “Is Terrorism Distinctively Wrong?Ethics 117, no. 3 (2007), pp. 524–46.

22 For more detailed discussion, see Fabre Cécile, “Permissible Rescue Killings,” Proceedings of the Aristotelian Society 109 (2009), pp. 149–64; Finlay, “Legitimacy and Non-State Political Violence.”

23 See Goodin Robert E., “Enfranchising All Affected Interests, and its Alternatives,” Philosophy & Public Affairs 35, no. 1 (2007), pp. 4068 .

24 See Tesón Fernando, “The Liberal Case for Humanitarian Intervention,” in Holzgrefe J. L. and Keohane Robert O., eds., Humanitarian Intervention: Ethical, Legal, and Political Dilemmas (Cambridge: Cambridge University Press, 2003), pp. 93130 .

25 Pattison James, “Representativeness and Humanitarian Intervention,” Journal of Social Philosophy 38, no. 4 (2007), pp. 569–87.

26 For further discussion, see Buchanan Allen, “The Internal Legitimacy of Humanitarian Intervention,” Journal of Political Philosophy 7, no. 1 (1999), pp. 7187 .

27 A similar point might also apply to bystanders: If bystanders have a duty to shoulder a certain level of risk, their objections to the use of force may be discounted.

28 See Brighouse Harry and Fleurbaey Marc, “Democracy and Proportionality,” Journal of Political Philosophy 18, no. 32 (2010), pp. 137–55.

29 For further discussion, see Benbaji, “Legitimate Authority in War.”

30 Based on a case in Altman Andrew and Wellman Christopher Heath, “From Humanitarian Intervention to Assassination: Human Rights and Political Violence,” Ethics 118, no. 2 (2008), pp. 228–57, especially p. 244.

31 Ibid., p. 243.

32 I explore this particular idea at length in Jonathan Parry, “Consent and the Justification of Defensive Harm” (unpublished manuscript).

33 See Shapiro Scott, “Authority,” in Coleman Jules and Shapiro Scott, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law (New York: Oxford University Press, 2002), pp. 382439 .

34 The following proposal draws on arguments I defend in much greater detail in Jonathan Parry, “Authority and Harm,” in David Sobel, Peter Vallentyne, and Steven Wall, eds., Oxford Studies in Political Philosophy, Vol. 3 (forthcoming). For different arguments for a broadly similar conclusion, see Estlund David, “On Following Orders in an Unjust War,” Journal of Political Philosophy 15, no. 2 (2007), pp. 213–34; Ryan Cheyney, “Democratic Duty and the Moral Dilemmas of Soldiers,” Ethics 122, no. 1 (2011), pp. 1042 ; and Massimo Renzo, “Duties of Citizenship and Just War” (unpublished manuscript).

35 Smith Matthew Noah, “Political Obligation and the Self,” Philosophy and Phenomenological Research 86, no. 2 (2013), p. 349 (my emphasis).

36 Raz Joseph, The Morality of Freedom (New York: Clarendon Press, 1986), chs. 1–4; Raz Joseph, Between Authority and Interpretation (New York: Oxford University Press, 2009), ch. 5.

37 For a different invocation of a Razian conception of authority in the context of war, see Benbaji, “Legitimate Authority in War.”

38 Raz, Morality of Freedom, p. 53.

39 Raz, Morality of Freedom, pp. 67–69. The preemptive character of commands can also be defended by an argument from double counting. Ibid., pp. 58–59.

40 Raz, Morality of Freedom, p. 71.

41 See, for example, Green Leslie, The Authority of the State (Oxford: Oxford University Press, 1988); Simmons A. John, “Political Obligation and Authority,” in Simon Robert L., ed., The Blackwell Guide to Social and Political Philosophy (Oxford: Blackwell Publishers, 2002), pp. 1737; and Raz Joseph, The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979), ch. 12.

* I would like to thank Christopher Finlay, Pål Wrange, three anonymous reviewers, and the journal editors for their helpful comments on an earlier draft.

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