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

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. 64–93 ; 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, Christopher “Legitimacy and Non-State Political Violence,” Journal of Political Philosophy 18, no. 3 (2010), pp. 287–312 ; 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. 11–39 .

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. 97–118 .

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. 75–80 .

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. 449–504 .

¹⁶ McMahan, Jeff, “Just War,” in Goodin, Robert E., Pettit, Philip, and Pogge, Thomas, eds., A Companion to Contemporary Political Philosophy, 2^nd 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. 1–21 , 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. 34–54 , 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), 298–315 , 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. 40–68 .

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. 93–130 .

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. 71–87 .

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. 382–439 .

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. 10–42 ; 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. 17–37; and Raz, Joseph, The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press, 1979), ch. 12.