Legal Commentary

Where Jus in Bello and Jus ad Bellum Come Together

By Kenneth Anderson

I?m at Penn Station, waiting for the train from New York City back to DC, happy but slightly dazed after the intense three day conference in celebration of the 35th anniversary of Michael Walzer?s Just and Unjust Wars that I mentioned in an earlier post. My thanks and congratulations to Gabby Blum, Ian Scobbie, and Joe Weiler for organizing it, and to NYU for hosting it. I was humbled to be in the presence of so many great intellectuals, not just in law, but in moral philosophy ? Professor Walzer himself, Jean Elshtain, Thomas Nagel, and others.

Three intense days, with Professor Walzer offering a few short comments at the end. I think it is okay to paraphrase them from my notes. His final comments go to a running theme of the meeting ? the distinction, and its persistence or not, of a moral and legal independence of jus in bello from jus ad bellum. He says that even though a defender of their independence, they come together in the following crucial and urgent moral way. (This is a paraphrase, not a direct quote, and should not be quoted as something directly said by Professor Walzer or that he has approved as a quote):

The worry is that if you fight in accordance with the legal regimes of international law, you can?t win. That is a major challenge, and I was very happy that General [Charles] Dunlap denies that and says you can. Still, it is a worry. It must be possible for the good guys to win within the rules, at least as a possibility, but also as a real possibility. That?s where ad bellum and in bello come together: to win a just war fighting justly.

But suppose it isn?t possible. That?s what moral philosophers partly do ? worry. What follows if it is not possible, or not a real possibility? What then? Well, the rules would have to be changed. We would have to reconsider the content of the rules jus in bello if we could not live within jus in bello and still have the just side win on the battlefield.

Full post as published by The Volokh Conspiracy on November 10, 2010 (boomark / email).