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Contrasting Approaches to War: Some Thoughts on the Views of Fletcher, Segev, Shany, and Zohar

Published online by Cambridge University Press:  04 July 2014

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Extract

I am greatly honored that these four distinguished moral and legal theorists, who have all made substantial and important contributions to our understanding of the problems with which I am concerned in my book, have been willing to engage themselves so constructively with my arguments. The published book will be significantly better, or less bad, as a result of my having had to address their challenges. I find myself in substantial agreement with much of what each commentator has to say and concede that on some points they have proven me wrong. But I am obstinate by nature, and perhaps a little obtuse, and thus am prepared to resist some of their suggestions, however sensible they may seem.

Type
Research Article
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2007

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Footnotes

*

Professor of Philosophy, Rutgers University.

References

1 Fletcher, George P., Is Justice Relevant to the Law of War?, 40(3) Isr. L. Rev. 684 (2007)CrossRefGoogle Scholar.

2 For a succinct statement of Fletcher's view, see his Punishment and Self-Defense, 8 L. & Phil. 201–15 (1989)CrossRefGoogle Scholar.

3 Fletcher writes that “McMahan also appeals to the analogy between cases of self-defense between individuals and self-defense as a rationale for killing in international armed conflict.” Fletcher, supra note 2, at 694. As I noted in the Précis: The Morality and Law of War, 40 Isr. L. Rev. 670683 (2007)CrossRefGoogle Scholar, I reject this analogical mode of reasoning about war. Even though for economy of expression I often write as if we can intelligibly make the same moral judgments about states that we make about individuals, my considered view is that such statements are always reducible without remainder to claims about individual responsibility, liability, wrongdoing, and so on.

4 Fletcher, supra note 2, at 700.

5 Id.

6 I discuss these problems at slightly greater length in Aggression and Punishment, in War: Philosophical Perspectives (May, Larry ed., forthcoming 2007)Google Scholar.

7 Shany, Yuval, A Pragmatic Objection to Moral Distinctions: A Comment on The Morality and Law of War, 40 Isr. L. Rev. 701 (2007)CrossRefGoogle Scholar.

8 See McMahan, Jeff, The Sources and Status of Just War Principles, 6 J. Military Ethics 91 (2007)CrossRefGoogle Scholar; and McMahan, Jeff, The Morality of War and the “Law of War,” in Just and Unjust Warriors: The Legal and Moral Status of Soldiers (Rodin, David & Shue, Henry eds., forthcoming 2008)Google Scholar.

9 See McMahan, Jeff, The Ethics of Killing in War, 114 Ethics 693 (July 2004)CrossRefGoogle Scholar. A condensed version of this article appears in 34 Philosophia 23 (2006)CrossRefGoogle Scholar together with a short reply by Michael Walzer.

10 Shany, supra note 7, at 706.

11 Id. at 708.

12 Id.

13 Id. at 701.

14 See, e.g., Buchanan, Allen, Institutionalizing the Just War, 34 Phi. & Pub. Affairs 238 (2006)CrossRefGoogle Scholar.

15 Segev, Re'em, Lesser Evil and Responsibility: Comments on Jeff McMahan's Analysis of the Morality of War, 40 Isr. L. Rev. 712 (2007)CrossRefGoogle Scholar.

16 Id.

17 I omit here any discussion of whether the relevant goods and evils are to be understood objectively or as expected utilities.

18 Segev, supra note 15, at 720.

19 Zohar, Noam J., Double Effect and Double Intention: A Collectivist Perspective, 40 Isr. L. Rev. 730 (2007)CrossRefGoogle Scholar.

20 Walzer, Michael, Just and Unjust Wars 155 (1977)Google Scholar.

21 Zohar, supra note 19, at 736.

22 Id. at 737.

23 It is important to note that Zohar's proposal is concerned not just with proportionality but also with the requirement of minimal force. Suppose there is an act of war that would cause a proportionate number of civilian deaths, but that there is an alternative act that would be equally effective militarily, cause fewer deaths among noncombatants, but be somewhat riskier for the combatants who would do it. Provided that these additional risks would not be unreasonably high, Zohar's proposal implies that the combatants ought to choose the second act. But this is not demanded by proportionality, since the act that would cause more civilian deaths would also be within the limits of proportionality.

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