Thinking About War by George H. Smith From Liberty, May 2008

Of all moral issues, war is perhaps the most difficult, and most important. What would a specifically libertarian response to this issue be?

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Wars are fought once on battlefields of blood, only to be fought again on the battlefield of ideas. These replays vary in their degrees of abstraction. Some, such as debates over strategy, tactics, and the competency of generals, are relatively concrete and fall largely within the province of military historians. Others, such as debates over the justice of a war and how it was fought, require the application of fundamental moral principles to the subject of war. This latter enterprise is called "just war theory."

I

Relatively little has been done to develop a specifically libertarian version of just war theory. An effort in this direction was undertaken by Murray Rothbard, who linked his discussion of war to an isolationist foreign policy. Since Rothbard's influence on the modern libertarian movement was perhaps second only to that of Ayn Rand, I shall begin this discussion of just war theory by taking a brief look at his views.

According to Rothbard, when one country invades another country, two evils are bound to occur. The first is the killing of innocent people; this means that war "is mass murder, and this massive invasion of the right to life, of self-ownership, of numbers of people is not only a crime but, for the libertarian, the ultimate crime." The second evil is the inevitable increase in taxation that will be required to finance the war. Rothbard concludes: "For both reasons, because inter-State wars inevitably involve both mass murder and an increase in tax-coercion, the libertarian opposes war. Period."[1]

It turns out that this "period" is not as definitive as it may first appear, for Rothbard then says, "It was not always thus." He continues with a romanticized account of medieval warfare, an era when low-tech weaponry permitted armies to confine their violence to rival armies - something they"often did," Rothbard notes, apparently hoping that the Crusades and the sacking of entire cities (which entailed the wholesale slaughter of their inhabitants) will be viewed as exceptions to the rule.

Rothbard was no pacifist, and he seems to object not to war as such but rather to wars conducted by governments that presume to act on behalf of entire nation-states. He presumably would not object, in principle, to private wars, so long as these were waged in legitimate self-defense and strictly avoided the killing of innocent people. Rothbard concludes:

Apart from the small band of Tolstoyan anarchists, then, the libertarian foreign policy is not a pacifist policy. We do not hold, as do the pacifists, that no individual has the right to use violence in defending himself against violent attack. What we do hold is that no one has the right to conscript, tax, or murder others, or to use violence against others in order to defend himself. Since all States exist and have their being in aggression against their subjects and in the acquiring of their present territory, and since inter-State war slaughters innocent civilians, such wars are always unjust - although some may be more unjust than others.[2]

Although it is true that modern wars have generally been waged by nation-states against other nation-states (a model that has become less applicable with the rise of al Qaeda and other nonstate terrorist organizations), this needn't be the case; we can easily imagine a private protection agency in Rothbard's ideal anarchistic society waging war against another agency. Although the financing of war would be voluntary in this case, the problem of killing innocent people while exercising one's right of self-defense would remain. Even if we presume that fewer innocent people would be killed, the killing of even one innocent person would render that war unjust, if we accept Rothbard's reasoning.

It is important to distinguish actions that are unjust per se from actions that, though just in themselves, are rendered possible in a particular case by unjust means. For example, the apprehension of violent criminals is just, by libertarian standards, even if this activity is currently financed, and therefore made possible, by a coercive system of taxation that libertarians regard as unjust. Does this mean that libertarians should protest the apprehension of all violent criminals because this state activity is financed by coercive means? Few libertarians would answer "yes" to this question.

The killing of innocent people falls into a different category altogether, for (unlike the apprehension of violent criminals) Rothbard regards this as absolutely prohibited by the libertarian axiom of nonaggression. But if this is the case, then it matters not at all whether a war in which innocents are killed is waged by a nation-state, feudal barons, a private protection agency, guerrilla fighters (exemplifying a form of warfare to which Rothbard was favorably disposed), or individuals acting in their own self-defense. The relevant difference here is not the type of group or institution that does the fighting but the type of armaments it uses. Rocks, spears, arrows, and rifles can be aimed at particular individuals, but artillery shells and bombs (as well as more destructive weapons of mass destruction) target areas that may contain innocent bystanders.

Suppose a libertarian country is attacked with bombs. Does the principle of nonaggression mean that it may fight back only with rifles, in effect? Although Rothbard does not say this explicitly, he comes very close to it in his discussion of just war theory in "The Ethics of Liberty," where he argues that "the bow and arrow, and even the rifle, can be pinpointed, if the will be there, against actual criminals." On the other hand, "it is precisely the characteristic of modern weapons that they cannot be used selectively, cannot be used in a libertarian manner. Therefore, their very existence must be condemned..."[3]

Rothbard is understandably concerned with the "ultimate crime of mass murder" that would result from the use of nuclear weapons, but he applies his libertarian prohibition to rockets and other modern weapons whose destructive effects cannot reasonably be confined to specific aggressors. This condemnation results from his conviction that the prohibition against killing innocent people is absolute, that it can never be justified even when such killing is the unintentional byproduct of legitimate self-defense:

Suppose that ... Jones finds that he or his property is being aggressed against by Smith. It is legitimate, as we have seen, for Jones to repel this invasion by the use of defensive violence. But, now we must ask: is it within the right of Jones to commit aggressive violence against innocent third parties in the course of his legitimate defense against Smith? Clearly the answer must be, No. For the rule prohibiting violence against the persons or property of innocent men is absolute; it holds regardless of the subjective motives for the aggression. It is wrong, and criminal, to violate the property or person of another, even if one is a Robin Hood, or starving, or is defending oneself against a third man's attack.[4]

Although no libertarian will take issue with Rothbard's claim that "we should try to reduce the scope of assault against innocent civilians as much as possible" during war, this maxim does not presuppose an absolute moral prohibition against the killing of innocents during a just war. It is curious that Rothbard, who cites many Thomistic philosophers in "The Ethics of Liberty," does not even consider their position on this issue. Thomas Aquinas and later scholastics defended what is known as the "principle of double effect." The Thomistic philosopher Vernon J. Bourke summarizes this principle as follows:

[W]here a moral action results in two consequences, one evil and the other good, the action may be done morally, if the good is in some reasonable proportion to the evil, if the good cannot be attained without the evil, if the two consequences are concomitant, and if the good is directly intended and the evil only permitted.[5]

Another Thomist, Thomas J. Higgins, applies the principle of double effect to the killing of innocents during war:

It is a legitimate act of war to bomb directly any military target. The term, military target, includes not only military personnel and purely military installations, but roads, railways/ every kind of communication and transportation, factories, warehouses, government buildings - anything which directly subserves a military purpose. Killing non-combatants in air raids may never be directly willed but only permitted according to the principle of double effect. To bomb a purely civilian area for the sake of terrorizing the enemy into subjection is merely mass murder.[6]

This principle has been used by many philosophers of war to justify the killing of innocents, so long as such killing is not directly intended but is the unavoidable byproduct of an action that is required for self-defense. Rothbard rejects this principle, if only implicitly, when he maintains that the rights of person and property are "absolute" and hold "regardless of the subjective motives for the aggression." My need to survive, however real and urgent, cannot eradicate, diminish, or otherwise affect the rights of innocent people who are in no way responsible for the situation in which I find myself. This is what Rothbard means in calling rights "absolute."

This is a reasonable position. To claim that innocent people lose their rights whenever they prove inconvenient for me would throw a libertarian theory of rights into a whirlwind of subjectivity. On the other hand, motives are surely relevant to our moral evaluation of an action. Rothbard seems to admit as much when he says that we "may understand and sympathize with the motives" in those "extreme situations" where killing an innocent person is required for one/s self-defense - but if the killing of innocents is always and everywhere unjustifiable murder, pure and simple, then it is difficult to understand the reason for this sympathy.

Moreover, it is not only the right to self-ownership that is absolute, according to Rothbard, but also the right to external property. Hence Rothbard/s position on war, if consistently applied, would mean that even minor violations of property rights could never be justified by appealing to self-defense. If, while fleeing from an aggressor who intends to kill me, I find it necessary to trespass on the land of another person without his permission, then my action would qualify as a violation of the owner/s property rights. Would Rothbard insist that I should therefore stand my ground and permit myself to be killed rather than commit this unjust act? Many such examples could be given, and they give a sense of unreality to Rothbard's position.

There is a way of out this dilemma, one that Rothbard does not consider, namely, that it may sometimes be morally justifiable to violate the rights of innocent people. Rights, in this view, specify conditions in which force may legitimately be used against others. They pertain to the external aspects of human action and are not directly concerned with subjective motives. The motives for violating a right may be good or bad, moral or immoral, but it is the objective characteristics of an action that will ultimately determine whether or not a right has been violated, and to what extent.

In this view, Rothbard is correct to maintain that to use force against innocent people, even in the course of legitimate self-defense, would constitute a violation of their rights. But it may be morally justifiable, under strictly defined circumstances, to violate the rights of innocent people. And in such cases one's motives - or, more precisely, one's intentions - play a major role in evaluating the action in question. (This issue, which pertains to the ethics of emergencies, requires more attention than I can give it here.)

II

Whatever the problems with Rothbard's approach may be, it at least addresses in a serious way the complicated and disturbing problems raised by just war theory. Unfortunately, the same cannot be said of a recent article by Yaron Brook and Alex Epstein, "'Just War Theory' vs. American Self-Defense," which appears in The Objectivist Standard.[7] The article is significant because Mr. Brook, as president and executive director of the Ayn Rand Institute, may be taken to express the "official" Objectivist position on just war theory.

This raises the interesting question of whether Rand would have agreed with Brook and Epstein. Although this is obviously a matter of conjecture, I think there is considerable evidence to indicate that she would have endorsed their major theoretical conclusions. But this raises the more difficult question of whether Rand's statements about war (many of which were given off the cuff, as verbal responses to questions) are consistent with her own theory of individual rights and her application of methodological individualism to moral reasoning. Since Brook and Epstein do not even consider the possibility that Rand failed to apply her principles consistently, I shall not explore this problem further, except where it is pertinent to a particular argument.

The lengthy article by Brook and Epstein is an ambitious mixture of policy analysis, historical interpretation, and political theory. Such articles will necessarily contain claims that cannot be defended in detail, so it is a relatively simple matter for a critic to attack isolated remarks and focus on them at the expense of more significant points. I will do my best to avoid this kind of picayune criticism and deal instead with basic themes. I will concentrate on the wholesale repudiation of "just war theory" by Brook and Epstein.

The authors were not satisfied with presenting their version of just war theory and its application to the ongoing conflict with what they describe (correctly, I think) as "Islamic Totalitarianism." Perhaps in the hope of adding a dramatic punch to their presentation, they decided to attack "just war theory" root and branch, and much of their article is devoted to this criticism. It seems that the failures of the Bush administration in dealing with terrorism are owing to its adherence to the principles of just war theory, which have imposed altruistic restraints on measures that are required for the defense of the United States and other innocent nations:

Just War Theory, in the final analysis, is anti-self-defense and anti-justice. By preaching self-sacrifice to the needs of others, Just War Theory has led to the sacrifice of the civilized for the sake of the barbarous, the sacrifice of victims of aggression for the sake of its perpetrators, the sacrifice of noble Americans for the sake of ignoble Iraqis - the sacrifice of the greatest nation in history for the sake of the worst nations today.

The subtext here is one that we often find with Objectivist writers: everyone got it wrong until Ayn Rand happened on the scene. Not until she developed her ethics of rational egoism was it possible to slay the dragon of altruism that had hitherto vitiated every just war theory, so we have virtually nothing to learn from this long and rich tradition.

One of the most frustrating aspects of the article is the ambiguity that attends its critique of "just war theory." At times the authors seem to mean contemporary just war theory, as represented chiefly by Michael Walzer's influential book, "Just and Unjust Wars" (1977). At other times they use "just war theory" as a generic label, one that encompasses every just war theory from Augustine (in the early 5th century) to the present day.

Brook and Epstein appear not to have read Walzer's book very carefully. Consider their objection to the requirement that war be waged as a "last resort," Le., only after peaceful alternatives have been exhausted. This supposedly means that "a nation cannot go to war immediately even when there is an objective threat - that is, when another nation has shown the willingness to initiate aggression against it." The "last resort" requirement is therefore "inimical to the requirements of self-defense, which demand that serious threats be stopped as soon as possible."

According to Brook and Epstein, Walzer is among those (otherwise unnamed) just war philosophers who do not regard objective threats as legitimate grounds for war, and they quote a remark he made to the New York Times to illustrate their point: "we don't have to wait to be attacked; that's true. But you do have to wait until you are about to be attacked."

If Brook and Epstein had consulted Chapter 5 ("Anticipations") of "Just and Unjust Wars," they would have learned that Walzer does not hold the position they attribute to him. On the contrary, he emphatically maintains that an objective threat can justify a preemptive war, e.g., of the sort that Israel fought during the "Six-Day War" in 1967:

The line between legitimate and illegitimate first strikes is not going to be drawn at the point of imminent attack but at the point of sufficient threat. That phrase is necessarily vague. I mean it to cover three things: a manifest intent to injure, a degree of active participation that makes that intent a positive danger, and a general situation in which waiting, or doing anything other than fighting, greatly magnifies the risk.[8]

Like many just war philosophers, Walzer distinguishes between a subjective fear and an objective threat. Fear alone is not enough to justify a preemptive strike, but the same is not true of a legitimate threat (or what Francis Bacon called "just fear"). Walzer argues that "we need an objective standard" to determine when the fear we feel is based on a real threat - and when this determination has been made, we may use force in self-defense.

Brook and Epstein's interpretation of Walzer pales in comparison to their outrageous handling of just war theory in the broader sense. The authors claim that just war theorists, despite their many differences, all hold one fundamental idea in common. "The moral premise of just war theory" - not merely this or that version, mind you, but all historical forms of just war theory - is "the altruistic notion that justice means selfless service to the needs of others." In short: "Just War Theory ... is the application of the morality of altruism to war."

This remarkably silly claim is the foundation for a wholesale repudiation of just war theory by Brook and Epstein, whose argument may be summarized as follows:

It is both imperative and just that we fight against "Islamic Totalitarianism" until that movement no longer threatens us. This requires that we be willing to take the drastic actions (which they repeatedly describe as "Sherman-like," after the harsh Civil War actions of General Sherman) that are required to achieve this end. But these actions are inconsistent with "a certain moral theory of war" called just war theory, so to "the extent that Just War Theory is followed, it is a prescription for suicide for innocent nations." This shows that just war theory is "neither practical nor moral"; on the contrary, it is "a profoundly unjust code," one rooted in altruism. In forbidding us to take actions necessary for our very survival, just war theory effectively nullifies our right of self-defense and demands that we sacrifice ourselves for the sake of others.

There is an unfortunate tendency among some Objectivists to map out a short and easy route through the history of ideas that will take them to a predetermined destination. The destination, more often than not, is "altruism" - an evil that lurks behind every bush and under every rock in the history of philosophy. More pernicious still, according to these Objectivists, are the seeds of altruism that, once planted, can lie dormant and undetected in the soil of seemingly benign theories, only to emerge decades or even centuries later as full-blown doctrines of self-sacrifice. In their early stages, these seeds can be so subtle and elusive as to be perceptible only to dedicated altruism hunters.

According to Brook and Epstein, all roads in the history of just war theory lead to Augustine, altruist-extraordinaire:

Although advocates of Just War Theory differ on many specifics about the nature of morality, they all hold one fundamental idea in common. To zero in on this idea, let us tum to the origins of Just War Theory: the writings of the Christian theologian Saint Augustine on the proper use of violence by individuals.

Our authors now tell a story, much of it fictional, of how Augustine packed altruism into just war theory at its point of origin and thereby tainted it forever. The first peculiar thing about this story is where it starts. One can only guess where Brook and Epstein came by the idea that the"origins" of just war theory are to be found in the writings of Augustine.

Augustine has been called the first Christian just war theorist (though even this label has been characterized as "misleading" by the Cambridge editors of his "Political Writings"), but he was centuries too late to qualify as an originator of just war theory per se. Many Greek and Roman philosophers, historians, and statesmen had discussed just war theory long before Augustine came along. The discussion in Cicero's "Republic" (to which Augustine refers on several occasions) is but one example. Moreover, Augustine clearly had an earlier tradition of just war theory in mind when he endorsed the following view: "A just war is customarily defined as one which avenges injuries, as when a nation or a state deserves to be punished because it has neglected either to put right the wrongs done by its people or to restore what it has unjustly seized."[9]

Brook and Epstein correctly point out that Augustine had a significant impact on later just war theory; they also call attention to the strong current of altruism in Augustine's ethics. Aside from these general points, however, their account is highly inaccurate.

Augustine set out to refute those pacifists who had argued that Christians should not serve in the Roman military. In the course of doing so, he conceded that Christians, when acting in their private capacity as Roman citizens, should be willing to die rather than use force in self-defense. But he also maintained that these selfsame Christians, when acting in their public capacity as soldiers, have a duty to use force when a war has been authorized by a legitimate political ruler.

There is a definite strain of altruism here, insofar as Augustine maintains that the use of violence is justifiable only when it furthers the common good instead of one's personal interests; but, contrary to the suggestion of Brook and Epstein, this did not lead Augustine to conclude that "humanitarian" wars fought on behalf of other countries are morally superior to wars fought in defense of one's own country. This was not his point at all.

Now, to deny the personal right of self-defense while insisting that Christians have a duty to defend their country was obviously an untenable position, but Augustine's authority in the Catholic church was such that it took centuries before his position on self-defense was decisively overthrown. This was largely the accomplishment of Thomas Aquinas, who (writing in the 13th century) defended the personal right of self-defense in no uncertain terms. To the question of whether one may "kill someone in self-defense,"

Aquinas replies that it is morally proper to "to repel force by force," and that it is not "necessary to salvation that a man refrain from an act of moderate self-defense in order to avoid killing another man, since one is bound to take more care of one's own life than another's...[10]

Even the most dedicated altruism hunter would have difficulty locating his prey in these remarks. And it was Aquinas' views on self-defense, not those of Augustine, that would dominate Catholic thinking on just war theory in the following centuries. Indeed, the maxim that we should value our own lives more than the lives of other people (within the boundaries of justice, of course) would henceforth play a major role in just war theory. For example, in the early 16th century, Francisco de Vitoria (the most influential just war philosopher of his era) wrote that "free men ... do not live for the convenience of others, but for themselves"; and he followed the lead of Aquinas rather than Augustine in maintaining that "every man has the power and right of self-defense by naturallaw."[11]

Although Aquinas quoted Augustine extensively in his discussion of just war theory, he did so for the purpose of supporting the position that "the care of the commonwealth is entrusted to princes," and that "it pertains to them to protect the commonwealth of the city or kingdom or province subject to them." This includes not only the obligation to punish domestic criminals but also the obligation "to use the sword of war to protect the commonwealth against enemies from without."[12]

In sum, Aquinas invoked the authority of Augustine to support the following principles: (1) A just war can be waged only by a legitimate political authority. (2) A just cause is required; that is to say, "those against whom war is to be waged must deserve to have war waged against them because of some wrongdoing." (3) It is necessary that "those who wage war should have a righteous intent; that is, they should intend either to promote a good cause or avert an evil.,,13 In none of these principles - all of which were defended by both Augustine and Aquinas - do we find anything that could remotely be described as "altruistic."

Brook and Epstein have little choice but to acknowledge that later just war theories were grounded in the right of self-defense, but even here our intrepid altruism hunters claim to have found the evil for which they were searching.

The most significant development in Just War Theory since Augustine's time is that the theory has come to include an endorsement of what it calls a "right to self-defense." But because Just War Theory has maintained its Augustinian, altruistic roots, its alleged "right" to self-defense turns out to be no such thing.

The argument here is that the principles of just war theory, such as "proportionality" and "discrimination," so undercut the preconditions of legitimate self-defense as to effectively nullify this right during war. These principles are said to be altruistic because they supposedly demand that innocent people sacrifice their lives, or at least put them in significant danger, for the sake of other people.

The principle of proportionality is that retaliation should be proportional to the injury received. The principle of discrimination is that we should make a good-faith effort to restrict our use of force to those who are guilty of aggression and avoid targeting innocent people. While acknowledging that these principles are ambiguous and leave a good deal of room for interpretation, Brook and Epstein nonetheless insist that they amount to the imperative that a just war "be fought by unselfish, sacrificial means." For example, it is "commonly necessary in war to break the spirit of a foreign people whose nation has initiated aggression in which they are complicit," and this may call for the Sherman-like tactics of targeting civilians and razing entire cities. But just war theory "forbids such tactics."

A nation with"good intentions," practicing "proportionality" and "discrimination," cannot possibly raze a city as Sherman did. This is why, although Sherman's actions helped to end the Civil War, he is a reviled figure among Just War theorists: His goal was to preserve his side by inflicting unbearable misery on its enemy's civilian population - the opposite of "good intentions." Many Just War theorists hold - as by their standard they are obliged to hold - that the dropping of atomic bombs on Hiroshima and Nagasaki in 1945 was immoral. America, they claim, should have valued Japanese civilians over the hundreds of thousands of GIs who would have died invading Japan.

It may come as a shock to Brook and Epstein to learn that Sherman-like tactics - including tactics that go beyond anything that they would endorse - have been advocated by some of the most influential proponents of just war theory. When our authors refer to "Just War theorists and their pacifist spiritual brothers," they labor under the misapprehension that just war theorists have been cousins to the pacifists who would take the fun out of war by concocting "new schemes for appeasement, or new fantasies that the enemy has reformed." Especially disturbing to Brook and Epstein is the apparent incompatibility of just war theory with the Sherman-like tactics of targeting civilian populations, burning cities and private estates, destroying crops and livestock, and so forth.

Here as elsewhere it is painfully evident that they have not read even the most prominent just war philosophers, such as Francisco de Vitoria, who is widely acknowledged as the founder of modern international law. His "On the Law of War" (a series of lectures delivered at the University of Salamanca in 1539) was the most systematic and extensive presentation of just war theory to date, and its influence on subsequent thinkers was immense.

Consider Vitoria's argument that we may "plunder" the "goods and property" that have been used against us in a war, even if these belong to innocent people. "Indeed, we may take the money of the innocent, or burn and ravage their crops or kill their livestock; all of these things are necessary to weaken the enemies' resources. There can be rio argument about this." Moreover, "one may even enslave the innocent under just the same conditions as one may plunder them," i.e., when such measures are necessary to win a just war. As for prisoners of war, if they "would otherwise be combatants, for instance, if they have already borne arms against us, they may be executed."[14]

Like many early just war theorists, Vitoria would put Brook and Epstein to shame in a contest to see who advocates the most severe tactics during war. Even John Locke (who greatly admired the writings of Hugo Grotius and Samuel Pufendorf, the two leading Protestant proponents of just war theory) defended the enslavement of those who participate in an unjust war. For centuries this line of reasoning was a standard justification for slavery among just war theorists; and though Brook and Epstein do not discuss this issue specifically, I assume that they do not advocate the mass enslavement of Islamic fundamentalists whom they regard as posing "objective threats" to America.

Just war theory is a big tent in which a wide range of policies can find shelter. Brook and Epstein acknowledge this when they note that the guidelines of just war theory are "ambiguous," that "advocates of Just War Theory differ on many specifics," and that how one interprets principles like proportionality will ultimately depend on one's "basic view of morality." These are important insights, and if Brook and Epstein had followed up on them instead of pursuing the red herring of altruism, they might have produced a valuable contribution to just war theory.

III

If the principles of just war theory are so elastic, having been used to defend not only the Sherman-like measures advocated by Brook and Epstein but also measures (such as enslavement) that even Sherman-lovers would reject, then of what value is this tradition to modern libertarians and Objectivists?

Just war philosophers, however much they may disagree over particulars, have shared a common concern with the ethics of war; they have attempted to apply objective moral principles knowable to reason (traditionally known as "natural laws") both to the cause of war (jus ad bellum) and to the conduct of war (jus in bello). These moral principles have varied to the extent that just war theories have reflected the moral standards of their time. What were regarded as relatively humane methods of warfare in one era sometimes came to be regarded as barbaric in a later one. The reverse has also occurred: many 18th-century advocates of "civilized war" would have reacted with horror at the 20th-century notion of "total war," which sanctioned the wholesale targeting of civilians.

Just war theory underwent a profound transformation during the 16th and 17th centuries, a period that witnessed the development of the modern theory of natural rights. In this profoundly individualistic approach to political theory, rights came to be seen as principles of moral jurisdiction that a person has over his body, his labor, and the fruits thereof. Throughout the literature of this period we see "force" and "fraud" listed as the two basic methods by which rights can be violated - a strong indicator of the similarity between this emerging theory and the conception of rights defended by modern Objectivists and libertarians.

Whereas earlier philosophers had typically used terms like "injury" to specify when a war is justified - a condition that permitted a broad range of interpretations - natural rights philosophers insisted that only a violation of rights can justify a war, and that these rights place moral restraints on what belligerents can properly do while fighting a war. As Hugo Grotius (the highly influential Dutch writer on international law and just war theory) put it in his seminal work, "The Rights of War and Peace" (1625):

Least of all should that be admitted which some people imagine, that in war all [moral] laws are in abeyance. On the contrary, war ought not to be undertaken except for the enforcement of rights; when once undertaken, it should be carried on only within the bounds of law and good faith. [I]n order that wars may be justified, they must be carried on with not less scrupulousness than judicial processes are wont to be.[15]

Grotius saw a kind of madness in the death and destruction caused by wars, which were "justified" in myriad ways. He hoped (perhaps naively) that just war theory would bring the voice of reason to what was typically an irrational enterprise.

Grotius was the first philosopher to develop a systematic theory of individual rights to serve as the foundation for his just war theory. This project was continued by Samuel Pufendorf, whose massive work, "The Law of Nature and Nations" (1672), was praised by Locke as "the best book" on political theory ever written.16 And this is precisely how the celebrated works by Grotius and Pufendorf should be classified: they are comprehensive treatments, first and foremost, of political theory, which apply the principles of this discipline to the problem of war. According to Locke, those who read the major works by Grotius and Pufendorf "will be instructed in the natural rights of men, and the original and foundations of society, and the duties resulting thence." These are "studies which a gentleman should not barely touch at, but constantly dwell upon, and never have done with."[17]

Grotius and Pufendorf were not liberal individualists; on the contrary, both reached conclusions that were favorable to absolutism in some respects. But (as Locke indicated) they presented a theory of natural rights that could be used to solve the fundamental problems of political philosophy. They provided a conceptual structure, an individualistic methodology or way of thinking about political problems - including the problem of war - that promised to bring system and coherence to this difficult discipline. They made just war theory a branch of political philosophy, and they achieved this integration by means of a theory of individual rights. The moral principles that should regulate the interaction of individuals within the same nation, they argued, are essentially identical to the moral principles that should regulate the interaction of individuals in different nations.

Grotius based his theory of rights on an ethics of rational self-interest. In the words of Richard Tuck (a leading authority in this field), Grotius "went back to the principles of the Stoics ... in particular the Stoic claim that the primary force governing human affairs is the desire for self-preservation. But he interpreted this desire in moral terms, as the one and only universal right: no one could ever be blamed for protecting themselves..."[18] According to Grotius, reason enables man to formulate and act upon the general principles that set the foundation for a beneficial social order. Foremost among these conditions is the preservation of one's suum, i.e., moral jurisdiction and power over one's life, body, and liberty. For Grotius, these spheres of moral jurisdiction are expressed in terms of rights, which define and delimit the use of physical force in society. Grotius would have wholeheartedly agreed with Ayn Rand's statement that "lndividual rights are the means of subordinating society to moral law."[19]

According to Grotius, people form political societies primarily for the individualistic purpose of protecting their rights from the violent invasions of others: "the end of society is to form a common and united aid to preserve to every one his own." Self-preservation is a fundamental right that is violated by the initiation of physical force, so self-defense is a right "which nature grants to every one."[20] Rights "do not prohibit all use of force, but only that use of force ... which attempts to take away the rights of another."[21] The right of self-defense justifies the retaliatory use of force: "a person, if he has no other means of saving his life, is justified in using any forcible means of repelling an attack." This reasoning also applies to our conduct in a just war, which has as its purpose "the preservation of our lives and persons."[22]

If this approach can be called "egoistic," owing to its emphasis on the morality of self-interested actions, we must keep in mind that it is a universalistic egoism - a form of egoism in which every person has an equal right to pursue his self-interest within the boundaries of justice. Considered in terms of fundamentals, this approach is the same as that found in the ethical egoism of Ayn Rand. Unlike the egoism of (say) Max Stirner, Rand maintains that the pursuit of rational self-interest should take the rights of other people into account; indeed, the integration of self-interest and rights is perhaps the most impressive feature of her political theory. Nowhere does Rand suggest that respecting the rights of others is "altruistic."

Since even a just war will inevitably involve the killing of innocent people and other rights-violating actions, Grotius and his colleagues devoted considerable attention to this problem. Although they sometimes disagreed over particulars, the acceptance of a rights-based method of analysis permitted them to argue within the same conceptual framework. This framework, I maintain, is also the one best-suited for those modern libertarians and Objectivists who work from a theory of natural rights.

Allow me to summarize some theoretical features of this approach, beginning with the notion of a state of nature.

A state of nature (or "natural society") is a society without government, i.e., a society without a common sovereign, or judge, who can adjudicate disputes between members of society. Described by John Locke as a condition of "pure anarchy," the state of nature was an extremely useful model that permitted philosophers to explore the extent of natural rights, i.e., those enforceable moral claims that individuals would possess in a "natural" society without a government.

Debates over the moral status of individuals in a state of nature played an indispensable role in just war theory, because sovereign nation-states were viewed as being in a state of nature vis-a-vis other nation-states. John Locke expressed the prevailing view of his contemporaries when he wrote:

'Tis often asked as a mighty Objection, Where are, or ever were, there any Men in such a State of Nature? To which it may suffice as an answer at present: that since all Princes and rulers of Independent Communities all through the world are in a State of Nature, 'tis plain the World never was, nor ever will be, without Numbers of Men in that state.[23]

As Emmerich de Vattel (an influential 18th-century just war theorist) put it, nations "may be regarded as so many free persons living together in a state of nature."[24]

This means that the reciprocal rights and duties that would apply to individuals in an anarchistic state of nature can also be applied to relationships between sovereign nation-states.

The approach rested on an analogy between self-sovereignty and state-sovereignty, which is why works like those by Grotius and Pufendorf explored in considerable detail the meaning and implications of "sovereignty." This approach generated a number of serious theoretical problems, as we see in the contention of Pufendorf that states should be viewed as "moral persons" for the purpose of political analysis. (This view owed a good deal to Roman law.)

Such problems are one reason why 17th-century just war theory cannot be accepted "as is" by modern libertarians, whose views on state sovereignty differ from those of our predecessors. Considerable work remains to be done in this field, so I should again emphasize that my discussion of this tradition should not be construed as a blanket endorsement. I am recommending the methodology employed by these philosophers, not necessarily their specific conclusions and doctrines.

Closely related to the state of nature model was a way of looking at rights that I call political reductionism. This is the doctrine that all rights are ultimately the rights of individuals, and that all rights and powers claimed by a government must be reducible, in principle, to the rights and powers of individuals. As Locke put it, "no Body can transfer to another more power than he has in himself."[25]

Statements of political reductionism abound in the 17th century. Algernon Sidney, a hero to Thomas Jefferson and other revolutionary Americans, wrote that "whatsoever is done by delegated powers, must be referred to the principals; for none can give to any a power which they have not in themselves."[26] According to Gershom Carmichael (a seminal figure in the early Scottish Enlightenment who brought a Lockean perspective to his commentaries on Pufendorf), "civil power is in fact nothing but the right which belonged to individuals in the state of nature to claim what was their own or what was due to them, and which has been conferred upon the same ruler for the sake of civil peace."[27] And Thomas Jefferson affirmed political reductionism in no uncertain terms when he said that "the rights of the whole can be no more than the sum of the rights of individuals."[28] Hence when Ayn Rand stated that a "group can have no rights other than the rights of its individual members," and that "the expression 'individual rights' is a redundancy," she placed herself in a long and venerable tradition of political reductionism.[29]

The model of a state of nature, when combined with political reductionism, generated a method of reasoning about war that enabled philosophers to analyze complex moral issues in a systematic fashion. What rights (and corresponding duties) would individuals possess in a state of nature? It was by addressing this question that philosophers of war ascertained the rights and duties that one sovereign nation possesses vis-a-vis other sovereign nations in the anarchistic arena of international relationships.

In other words, before philosophers in this tradition discuss what actions nations may properly undertake in self-defense, they first discuss what actions individuals in a state of nature could properly undertake. Some of these discussions are fascinating for the amount of detail they contain. For instance, in considering the old problem of whether one may kill a thief in self-defense, Grotius considers the distinction between"a thief who steals by day, and the robber, who commits the act by night." After noting that many previous philosophers had considered this problem, Grotius notes that "they differ about the reason for this distinction," while adding that they seem not to "have considered the question in its proper light" - which Grotius, of course, then proceeds to do.[30]

In a similar vein, Pufendorf considers problems like the following: suppose that, after a shipwreck, more men leap into a boat than it is capable of carrying, and that "no one has more Right than another to it." (Pufendorf suggests that they draw lots to determine "who shall be cast overboard"; and that if "any Man shall refuse to take his chance, he may be thrown overboard without any more ado.") Or suppose that we have a situation in which "two happen into imminent Danger of their Lives, where both must perish...." (In this case, "one may ... hasten the Death of the other, that he may save himself" Pufendorf bases this conclusion on the premise that "every Man is allowed to be most dear to himself" - scarcely the kind of self-sacrificial maxim that permeates just war theory, according to Brook and Epstein.[31])

Such problems were not regarded as idle hypotheticals of the sort that might fascinate libertarians after a few beers. They were seen instead as essential to developing a comprehensive theory of the individual right of self-defense. Pufendorf even considers the problem of what right, if any, an aggressor has to self-defense; and, like Grotius before him, he explores in considerable detail the problem of threats.

This method of reasoning generated a bright-line test for both the justification of war and the actions taken during a war: If the actions undertaken by a government in the name of self-defense could never, in principle, be legitimate for an individual to undertake in self-defense, then those actions must be condemned as morally improper. Within the individualistic tradition of just war theory, this state of nature analysis may be called the moral paradigm of a just war.

There is one other theoretical problem that bears mentioning, namely, the problem of acting as judge in one's own case. When Aristotle pointed out that "people are generally bad judges where their own interests are involved,"[32] he was calling attention to a problem that would be widely discussed by later philosophers. Political philosophers, regardless of their views on the proper limits of governmental power, generally agreed that a government should at least provide a judicial authority to which subjects and citizens can appeal to resolve conflicts that might otherwise end in perpetual violence.

This solution was not available in the realm of international affairs, since sovereign nations stand in a state of nature relative to other nations. In response, some philosophers advocated a league of nations that would serve as a common judge; some even called for a world government of sorts. But these proposals never gained traction in the 17th century, and it is with good reason that contemporary libertarians and Objectivists regard the United Nations with a jaundiced eye as a jury that includes criminals of the worst sort.

There was another aspect to the solution proposed by Aristotle and other political philosophers to the problem of bias; this was the rule of law, entailing the formulation of general moral principles and their application to war. To formulate and justify such principles is exactly what just war theorists have attempted to do. But there is an aspect of this project that can easily be overlooked, namely, that the general principles of war (especially those that pertain to jus in bello, or how a war should be fought after it has begun) will apply to all belligerents in warfare. It would be pointless, for example, to formulate a rule according to which the good guys may target enemy civilians but the bad guys may not. This rule would be pointless because every side will see itself as the"good guys." Rules about the conduct of war are thus intended to apply across the board, to good guys and bad guys alike.

Some Objectivists will doubtless object to this procedure, claiming that it introduces "subjectivism" into just war theory. Why should an innocent nation be constrained by the same rules of warfare that a guilty nation should observe? What does it matter if an aggressor nation believes that it is acting justly? These are perfectly legitimate questions, but to provide satisfactory answers would require more consideration than I can give them here. Suffice it to say that just war theorists wished to limit the barbarism of warfare per se, by sparing innocents as much as possible. As students of both human nature and history, they understood how easily people can rationalize and convince themselves that they are fighting in a just cause, however implausible their reasons may appear to others. This is nothing other than the problem of acting as judge in one's own case on an international stage, with the result that judgments will exhibit a national bias.

In the absence of a common judge to resolve international disputes, just war theorists emphasized a code of rules that should be observed by all sides in war. This was seen as the international equivalent of the rule of law. Grotius, Pufendorf, and their colleagues would have strongly endorsed Rand's contention that even the retaliatory use of force should be regulated and restrained by "an objective code of rules."[33] What Rand regarded as essential for the preservation of peace, justice, and social order in the national sphere, Grotius regarded as equally essential in the international sphere.

Let's take a brief look at some of these rules.

IV

As Douglas Lackey puts it in his excellent introduction, the rules of jus ad bellum "determine when it is permissible or obligatory to begin a war," whereas the rules of jus in bello determine "how a war should be fought once it has begun."[34]

Brook and Epstein summarize some of the leading principles of just war theory as follows:

Broadly speaking, Just War Theory holds that a nation can go to war only in response to the impetus of a "just cause," with force as a "last resort," after all other non-military options have been considered and tried - with its decision to go to war motivated by "good intentions," with the aim of bringing about a "good outcome." And it holds that a nation must wage war only by means that are "proportional" to the ends it seeks, and while practicing "discrimination" between combatants and non-combatants.

This is a fair and accurate account, one that might have heralded a valuable critique of just war principles from an Objectivist perspective, had these authors retained their own objectivity.

Good Intentions

Consider the principle that a just war must be waged with "good intentions." According to Brook and Epstein, "good"

means "altruistic." According to Just War Theory, it is wrong for a nation to be exclusively concerned with its own well-being in deciding whether to go to war; it must demonstrate concern for the well-being of the world as a whole - including the well-being of the nation it is attacking. Only such a concern will yield a "good outcome" - that is, an altruistic outcome. ... (This notion is, unsurprisingly, rooted in Augustine's religion, Christianity, which countenances [sic] us to love everyone ... )

It is far easier to tangle ideas than to untangle them, and fully to untangle the ideas in this passage would require a good deal of space. The principle of good intentions can be interpreted in a variety of ways, depending on the ideological presuppositions of a given philosopher, but the essential core of the principle may be stated as follows: If we have a just reason for going to war, then, if we decide to wage war, this decision and the actions we take thereafter should be motivated by this reason. The just reason, in other words, should not be used as a pretext to disguise unjust motives, such as the desire for plunder or territorial conquest.

Here as elsewhere Brook and Epstein fasten the charge of "altruism" on a principle by insisting that the entire tradition of just war theory is rooted in Augustinian altruism. I have already discussed the absurdity of this allegation. But I would like to say a few words about Augustine's position on this subject.

According to Augustine, war should be waged "in order to obtain peace."[35] This was a common viewpoint, one that had been stated by Aristotle and later by Cicero, according to whom wars"ought to be undertaken for this purpose, that we may live in peace, without injustice."[36] But Augustine gave a peculiar twist to this good intention; he maintained that since peace is the foundation of social order, and since social order benefits everyone, even the aggressors in war will benefit from their own defeat, provided a war is truly fought to secure peace.

This is the main avenue by which altruism enters Augustine's account of war. He argued that just wars, insofar as they aim at peace, should be concluded in a manner that benefits everyone, including the aggressors. Hence this altruism does not entail the sacrifice of the innocent for the sake of the guilty.

Augustine was principally concerned with eliminating the desire for revenge as a motivation for war. Hence: "just as you use force against the rebel or opponent, so you ought now to use mercy towards the defeated or the captive, and particularly so when there is no fear that peace will be disturbed."[37] He insisted that a just war must be motivated by the desire to restore and maintain a just peace - a goal that will benefit victor and vanquished alike.

It should be noted that Augustine's altruism had an especially ugly side to it - a theory of "righteous persecution," according to which people can be coerced for their own good. (I discuss this in my article, "Philosophies of Toleration."[38]) But when Augustine applied altruistic reasoning to the subject of war, he arrived at a principle of good intentions that sought to mitigate the savage retribution that was often inflicted on the losers. However we may evaluate the complex issues involved here, Augustine's position bears little resemblance to the account given by Brook and Epstein.

As I indicated previously, the principle of good intentions calls for a correspondence between reasons and motives: It says, in effect, that our justification for going to war should be sincere, that it should not serve as a pretext for ulterior motives. This is simply a call for moral integrity.

Last Resort

The principle of last resort states that nations, including those that have just cause to engage in war, should exhaust all peaceful alternatives to resolve their disputes before resorting to violence. Various qualifications attend this principle, which are captured by the stipulation that these alternatives must be reasonable; for example, the pursuit of a peaceful alternative must not significantly increase the danger facing a nation.

The most interesting thing about the principle of last resort, in view of the fact that it made the Brook and Epstein list of altruistic principles, is that it was frequently defended as a self-interested measure. Even a victorious nation will typically suffer a great deal of death and destruction during war, so a sovereign who has the welfare of his subjects at heart will not subject them needlessly to the horrors of war. As J.J. Burlamaqui (who popularized many of the ideas of Grotius and Pufendorf) explained:

However just reason we may have to make war, yet as it inevitably brings along with it an incredible number of calamities, and oftentimes acts of injustice, it is certain that we ought not to proceed too easily to a dangerous extremity, which may perhaps prove fatal to the conqueror himself.[39]

Since the primary duty of a government is to protect its subjects, a sovereign is obligated to observe the principle of last resort "in consequence of the very nature and end of government."

For as he ought to take particular care of the state, and of his subjects, he should not expose them to the evils with which war is attended, except in the last extremity, and when there is no other expedient left but that of arms. It is not therefore sufficient that the war be just in itself with respect to the enemy; it must also be so with respect to ourselves.[40]

In the final analysis, every evil that accompanies a war - from an increase in taxes and a loss of civil liberties to the unintentional but foreseeable killing of innocent people - is an argument in favor of the principle of last resort.

Proportionality

Of all the traditional principles of just war theory, the rule of proportionality is the most troublesome. As explained by Grotius, it pertains to the relationship between means and ends. Thus conceived, it is a general principle of moral reasoning, not a principle that applies only to war.

In the most general terms, the rule of proportionality states that the good produced by an end must be greater than the evil produced by the means required to achieve that end. This rule applies both to jus ad bellum (when a war should be fought) and to jus in bello (how a war should be fought).

When Grotius and other individualists applied the rule of proportionality to jus ad bellum, they used it mainly as a rule of thumb to determine when a nation should engage in war as a matter of prudence, even if it has a just reason for doing so. If an innocent nation is threatened by an aggressor with far greater military might, such that the innocent nation has no realistic hope of victory, it might be wise for it to avoid war and negotiate with the aggressor instead, on the ground that this alternative will cause less harm to its citizens. Even if a nation has a reasonable chance of victory, the harm generated by a war may far outweigh the good that a victory will bring about.

This reasoning was based on a distinction between wars that are permissible versus wars that are obligatory. A just cause establishes the right to engage in war, but a right entails a moral option, not a moral obligation, to do something. Although we may have a right to engage in a particular war, it would be foolhardy to rush headlong into that war without first taking practical considerations into account. Individualists regarded the rule of proportionality, as applied to jus ad bellum, as a method of practical reasoning that would assist us in this kind of deliberation.

The rule of proportionality is also applied to jus in bello, where "proportionality" is viewed in terms of a given military strategy or tactic. Will the expected good produced by a given tactic (e.g., strategic bombing) outweigh the evil produced by this means (e.g., the killing of innocent people)? An early formulation of the principles of proportionality was given by Vitoria:

Care must be taken to ensure that the evil effects of the war do not outweigh the possible benefits sought by waging it. If the storming of a fortress or town garrisoned by the enemy but full of innocent inhabitants is not of great importance for eventual victory in the war, it does not seem to be permissible to kill a large number of innocent people by indiscriminate bombardment in order to defeat a small number of enemy combatants.[41]

This application of the rule of proportionality has generated a good deal of criticism, and I freely concede that some of the objections raised by Brook and Epstein are well-taken (if we put aside the usual nonsense about "altruism"). For one thing, "proportionality" is a type of measurement, and this presupposes a uniform standard of measurement - and it is far from clear what this standard should be in time of war.

In the realm of jus in bello, individualists often invoked "necessity" rather than a rule of proportionality; they argued that those engaged in a just war should use only the amount of force necessary to win the war. Granted, a standard of "necessity" can be as vague and ambiguous as "proportionality," but the former does not entangle us in the same nest of theoretical problems about standards of measurement as the latter.

Individualists understood this problem, of course. They sometimes invoked Aristotle's dictum that moral reasoning does not yield the same degree of precision that we find in mathematics and other theoretical sciences. The judgments of moral reasoning depend a great deal on the "good faith" of the moral agent, Le., on his sincere desire to apply moral standards to a given situation as conscientiously as possible. And this is where appeals to "conscience" were seen as especially important.

I have no short and easy answers to the problems raised by the rule of proportionality. It obviously has some merit - for example, it would be "disproportionate" to nuke an entire city in order to kill one terrorist - but it is difficult to see how this rule can effectively guide us in resolving closer calls. This is one of those areas in which libertarians and Objectivists may have much to contribute in the future.

Anticipation

The problem of anticipation pertains to when we may legitimately launch a preemptive strike in anticipation of an attack by an aggressor. This problem of "anticipatory self-defense," which has a long and fascinating history, generated two lines of thought, which historians have described as "humanist" and "scholastic."

According to the more hawkish humanist tradition (so-called because it was rooted in Roman thinking about war, which was revived by Renaissance "humanists"), force may be used against a nation solely because its power constitutes a potential threat to other nations. As a leading figure in this tradition, Alberico Gentili (1552-1608), put it: "One ought to provide not only against an offense which is being committed, but also against one which may possibly be committed."[42] This approach was popular among those "balance of power" statesmen who argued that a nation that becomes significantly more powerful than other nations may be attacked in self-defense in order to restore an equilibrium of power. (In this view, the United States would be seen as a standing threat to other nations merely in virtue of its unparalleled power, and so would qualify as a legitimate target for preemptive attacks.)

Individualists rejected the argument that "fear" alone is sufficient to justify a preemptive attack; they preferred the "scholastic" doctrine (so-called because of its association with Catholic "schoolmen," or university professors) that only a real threat can justify a preemptive attack. The arguments they used to distinguish between mere fear and an objective threat are quite detailed, but they boil down to the argument that a preemptive strike is justified only when we are morally certain that another party (a) possesses the means to injure us, (b) intends to injure us, and (c) has taken specific actions in which this intention is manifest.

In essence, moral certainty - or "practical certainty," as we might call it today, in contrast to "theoretical certainty" - referred to the highest level of probability. It was generally agreed that only this very high level of probability can justify the drastic recourse to war. There were, however, variations even among individualists. Although all agreed that a mere subjective intention is insufficient, that it must be made manifest in some way, some philosophers advocated more rigorous standards of manifest intent than others. Again, this is one of the many areas in which more work remains to be done.

Conclusion

In suggesting that libertarians and Objectivists should take a closer look at their intellectual predecessors, I have not claimed that these just war theorists gave satisfactory solutions to all the problems generated by war. Nor do I claim to have solved these problems myself. Indeed, I would say that any person who is not deeply troubled by them has not given them serious thought, for they are among the most difficult problems in the entire discipline of ethics. I do think, however, that the natural rights foundation of modern libertarian thought holds great promise in working out reasonable solutions, and that a good place to begin is by examining the successes and failures of those philosophers who first attempted to apply a theory of individual rights to the problems of war.

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Anarchism

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