Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

For some reason, I think I have something to say to you. You think you have something to say to me? Email me at: gideonsblogger -at- yahoo -dot- com

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Wednesday, March 10, 2004
Backlog of things to talk about - serious backlog. Been really, really busy at the office. Fortunately, nothing I ever want to talk about is at all timely. Anyhow, here's to making a dent in a pile.

So let's start here, with a debate, on the topic of War and Statecraft, conducted in the pages of First Things between Rowan Williams, Archbishop of Canterbury, and George Weigel, Senior Fellow of the Ethics and Public Policy Center, and a frequent writer on the Christian just war tradition. I'll pause a moment for you to read the debate.

Good. I think we can agree that these two fellows are very bright and very serious. I think we can also agree that there are a lot of unnecessary words in their debate, which can be boiled down to a simple question: how is a state to demonstrate the moral legitimacy of its use of force against another state?

I use the word "demonstrate" advisedly. I'm not talking about whether the use of force inherently is legitimate. Neither disagrees that the use of force against another state can be legitimate. Neither disagrees that the legitimate government of a state has an a priori duty to defend a peace of just order, which implies that such a government is obliged to use force if that is the only practical way to defend that peace and that order. Moreover, neither argues the question of just war on narrow legalistic grounds; this is not a debate about whether the Iraq war traduced some specific principle or article or international law, for even actions that are not formally illegal can be substantively illegitimate (and, by the same token, the law can be an ass).

But by the same token, neither disagrees that the moral legitimacy of the use of force needs actively to be demonstrated in some fashion to people or states unrelated to the parties to a dispute. This, in itself, is an interesting concession on Weigel's part. He agrees with the Archbishop that nations cannot act as "judges in their own cases." But why not? Weigel denies the legitimacy of the UN as a moral arbiter; assume, then, for simplicity's sake that this body, and all other formal supra-national bodies, did not exist. If a state is not to be judge in its own case, who, then, is to be judge? Weigel seems to think that the Iraq war becomes more legitimate because Britain, Poland and Japan were supportive, and dismisses French, Russian and Mexican opposition by saying that these states were not acting seriously as judges of the moral case for war. Would the case be weaker if Britain, Poland and Japan also acted "unseriously" as moral judges of the case?

Note that I'm not questioning the prudential need for allied or even, potentially, supra-national support for the use of force to protect the peace of just order. Such support may indeed be practically necessary - or it may not. The question is whether it is morally necessary. Weigel appears to concede that it is necessary, that no state can conduct war solely on its own judgement that war is necessary to achieve a just and legitimate purpose, for that judgement cannot be made in the state's own "case."

I suspect that Weigel did not intend to concede so much; I suspect, rather, that he would have no theoretical problem with America, for example, going to war with Afghanistan after 9-11 without soliciting or obtaining the approval of anyone, inasmuch as this war presented a prima facie case of national self-defense. He clearly does intend to concede something, though, for he avers that "the just war tradition demands a form of internationalism." Perhaps, then, even if there is no obligation to demonstrate the legitimacy of the use of force to dispassionate "judges" where such do not exist, there is an obligation to work towards a world where such judges do exist. Which is, itself, a considerable concession.

Archbishop Williams asks the question as to what international structures could serve as such judges. His implicit assumption is that any such structure must function as something like a world government. He imagines a body of experts who would decide when force was called for, and recommend force to the UN who would, presumably, issue the only valid warrants for the use of force. Given that the Archbishop disbelieves that Weigel's "charism of political discernment" - an infelicitous phrase - descends upon democratically-elected leaders, I wonder what leads him to believe that an international panel of experts would manifest such a gift, as such a gift is more manifestly called for in their case, relying as they would be entirely on their gifts, lacking as they would what Weigel's unlikely elected charismatics do, in fact have: legitimate authority.

So what would be a proper structure for establishing the legitimacy of the use of force? What is the alternative to an illegitimate world government or the law of private vengeance, each state acting as a judge in its own case? Is there any?

I think there is. The law is older than the state, and a community that recognizes the force of law can enforce it collectively without there being any entity with a monopoly of force. You can have law without government. The Jews have it. Islam once had it (in that the decisors of Islamic law historically renounced personally exercising state violence; this scruple has, needless to say, suffered some erosion in recent years). In a very different way, the medieval Icelanders had it.

The Archbishop seems to think that war cannot be just unless someone disinterested has issued a warrant. But this is wrong. What you might say, rather, is that where states have agreed to adjudicate their disputes through some disinterested body - for example, if two states are party to the World Trade Organization; or, if two states agree to adjudication of a border dispute through the United Nations - failure to abide by the rulings of the body in question is unjust, and recourse to force as an alterantive means of settling a dispute is unjust war, whatever the underlying merits of the case. States that refused to abide by such rulings could, in serious cases, be declared outlaws - literally: they would no longer have protection of the law, which implies that violence against them would be no crime. They would become "fair game" for any state that took it upon itself to enforce the law.

I think the Bush Administration assumed that something like this had happened to Iraq. Iraq had violated its cease-fire terms and had been declared in violation of numerous Security Council resolutions. In the Bush Administration's view, this made it an outlaw regime, one that was fair game for attack. No further case for the legitimacy of forceful action needed to be made: the ends of war would still need to be just, the means would still need to be just and proportionate, but the legitimacy of action was established. This is precisely what the Archbishop Williamses of the world do not accept, because they understand the UN to have more the function of a government, and if it did not order an attack then an attack was illegal.

If we want to have an international order - and I think we do - the concept of outlawry is useful in three ways. First, it decouples the monopoly of force from the conferral of legitimacy. The international community - through whatever organ is relevant - could, of course, choose never to recognize a violation of the law, in which case the organ in question would cease to have any moral significance, even for the Archbishop. Assuming the organ in question acted in good faith, giving it the power to declare a member to be an outlaw would not imply giving that organ - or any supra-national organ - the power to command force. What such a declaration would do is empower any state that chose to do so to take action to enforce the law; the UN would have no armies of its own at its disposal.

By the same token, it decouples the legitimacy of force from the obligation to exercise it. There are many, many lawless places on the planet, and even in domestic law enforcement it is never possible to prevent all crime, nor punish all crime that is committed. How much less so in the international sphere. It may be perfectly legitimate for the United States or France or whomever to intervene in any number of the lawless places of the world, and a formal recognition of that lawless state would make such intervention more legitimate in George Weigel's and Archbishop Williams' eyes. But it is not incumbent on America, or France, or any state to undertake such intervention. Outlawry would define the sphere of permissable forceful action, not make such action obligatory.

Finally, there is no reason that such an institution must be global in nature. The World Trade Organization is not. NATO, a very different sort of body, is not. The EU, yet another, very different body, also is not. Internationalism does not mean global government, and its legitimacy depends, crucially, on deriving its power from the freely-given consent of legitimate governments. The community before whom legitimacy must be demonstrated is self-selecting. It cannot be ad-hoc, a collection of whomever happens to agree with us at any particular time, else it confers no legitimacy by any reason I can discern. But there is no reason it need be universal, anymore than a community of interest or values need be universal.

I can imagine many objections to the above, and I can sympathize with those who would argue that "lawfulness" is not the appropriate model for the behavior of states. But there are concrete, practical benefits to legitimacy. America may be on firm moral ground when it acts as it sees fit for ends that it sees as just, inasmuch as there is no disinterested and legitimate body to whom it can make its case that what is sees is fit and just. But George Weigel may be right that America is not on moral ground when it fails to seek ways to erect such bodies, or to buttress the legitimacy - not the authority - of those that do exist. And if that is the case, then we have to think about what such bodies should look like. I think Archbishop Williams is badly wrong in his assumptions about what they should look like. I hear Weigel agreeing that such bodies should exist, and we should work to bring them into being, but I don't hear him making a very concrete argument as to how such bodies should work. Given his decidedly negative views of some of our traditional European allies, I worry that he has succumbed to the temptation to seek agreement only from those who will agree, to define the community as the community of the like-minded. And as this community is not remotely stable, changing as may with a single election, it is not, in fact, a community at all, and so will not do as the basis for any kind of objective legitimacy for the use of force.