The following commentaries are responses to the rough drafts of six lectures—the Hourani Lectures—that I delivered at the University of Buffalo in November of 2006. This draft manuscript is being extensively revised and expanded for publication by Oxford University Press as a book provisionally called The Morality and Law of War. Even though in January 2007 the book was still both unpolished and incomplete, David Enoch at that time generously organized a workshop at the Law School of the Hebrew University of Jerusalem to discuss its ideas and arguments. George Fletcher chaired the meeting and Re'em Segev, Yuval Shany, and Noam Zohar all presented superb commentaries. The following papers have all grown out of that memorable occasion.

Intellectual work on the law of war suffers from chronic isolation. The commentators on the Rome Statute are international lawyers who pay no attention to the work either of theoretical criminal lawyers or of the philosophers. The philosophers—Jeff McMahan as an outstanding example—ignore the legal details that dominate the books of the international lawyers. Criminal lawyers have much to contribute to the discussion of international law but they seem not to be interested, and so it goes. Writers with limited audiences, living in closed worlds, are unaware of what they have to learn from those with a different take on the field.

This comment to Jeff McMahan's thought-provoking contribution does not aim to take issue with the interesting and rather compelling philosophical arguments he raises in support of moral-based norms. In the same vein, the comment does not criticize the way in which McMahan describes the international law doctrines governing war situations—a description which is generally accurate. Instead, I comment on the policy reasons that have led international law-maker to move away from some of the morality-based distinctions and normative choices expounded by McMahan. Hence, my focus in this comment is on the pragmatic constraints that limit the influence of moral ideas on the laws of war. Of course, the resort to pragmatism may be in itself morally justifiable, as the insistence on the application of pragmatic consideration is often linked to the promotion of laudable goals—aversion of war and reduction of casualties and damage. Hopefully, a better understanding of the reasons underlying the rejection of “pure morality” in the context of the regulation of war would contribute to a critical assessment of the desirability of McMahan's ideas and to identification of the institutional conditions that could facilitate their application.

The main aim of Jeff McMahan's manuscript The Morality and Law of War is to answer the question: why and accordingly when, is it justified or permissible, to kill people in war? However, McMahan argues that the same principles apply to individual actions and to war. His main claim is that “a state of war… does not call forth a different set of principles, but merely complicates the application of moral principles that are of universal application.” In other words, “…in war, people have the same rights, immunities, and liabilities that they have in other contexts.” McMahan rejects “all doctrines of collective responsibility” and “liability” according to which “individuals can share in responsibility… or liability simply by virtue of membership in a collective.” His claim is that every individual is liable for what he has done and not for the actions of others—even if both are part of the same collective. Accordingly, McMahan challenges the common view that it is much easier to justify killing in war compared to killing in other contexts. Therefore, the scope of his project exceeds the context of war and extends to interpersonal conflicts between individuals that do not qualify as war. Indeed, McMahan has argued in the past for a similar account of self-defense in the individual context.

I find myself in agreement with much of Jeff McMahan's analysis. Yet I have argued in the past (initially against Judith Jarvis Thomson, but also against McMahan) that it is insufficient, and misleading, to think about warfare and its moral assessment in merely individualistic terms. My disagreements with McMahan's discussion here are mostly linked to the same fundamental reservation.

McMahan describes a clear-cut dichotomy between the individualist perspective— which he endorses—and collectivist approaches. These he characterizes as recognizing (in warfare) only collective moral agency, precluding individual responsibility. But in my view, we should reject this very dichotomy and adopt instead a dual moral perspective. Our focus should not be exclusively on individual choice, action, and responsibility: This should be combined with a collective perspective. In my comments here I will illustrate this by examining McMahan's discussion of terrorism and intention. I hope thereby to show that the description of warfare as a set of individual acts must be supplemented by its description as a conflict between collectives—between nations acting through their respective armies.

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.

This article discusses the decline of the multicultural doctrine that has governed Western political philosophy and practice in the last part of the 20th century. This decline is felt in the USA as well as in EU countries and manifests itself in new cultural restrictions on immigration policy, in stricter loyalty tests for immigrants who seek naturalization and in statutes regulating behavior in public places (such as the anti-veil acts in Europe) and proscribing deviant acts based on religious tradition (such as the American law criminalizing female genital circumcision). This decline is also accompanied by rethinking the theoretical foundations of the multicultural approach. This rethinking was accelerated by the onset of the Islamist—as distinct from Moslem—crisis, but started before the 9/11 events.

The article surveys the state of multiculturalism in a number of Western countries and pays special attention to the cases of the USA, Britain, France, and the Netherlands. The case of Israel is discussed separately because of its unique features as a society plagued by a national conflict. In all these countries the principal issue is how to tolerate intolerant communities, how to treat religious communities whose tenets clash with the democratic and liberal values of the host country and how to balance the rights of the individual against the rights of the cultural group to which that individual belongs.

The author challenges the notion that all cultures are entitled to equal treatment and excludes from this ambit cultures that clash with the values of democracy and human rights. The author denies the notion that consent of the sufferer validates such cultural practices and demonstrates this by referring to the former Hindu practice of Seti—burning a widow alive, with her consent. Such consent is irrevocable and is always subject that it was given under social and cultural duress.

The main brunt of this article is that the norms of democracy, equality, and human rights are not a culture in the ordinary sense of the word, as they are distinct from all traditional cultures and are the result of an intellectual construct founded upon the autonomy of the individual and on a rejection of traditional culture. This is the reason why these liberal norms should supersede any custom, even when based on cultural tradition, when there is a clash between the two. When there is no such clash, a compromise solution ought to be reached resorting to traditional judicial means of balancing contradictory values.