“John Rawls on Just War:
The Supreme Emergency Exemption”
By William Soderberg
Talk delivered at Montgomery College-Rockville
08 March 2016
As I prepared this talk, many people were on my mind: students in my classes who have served in the military in Afghanistan and Iraq. Going back further, I recalled relatives who served in World War I, World War II, and Vietnam whose lives were permanently altered by what today we would call PTSD (post-traumatic stress disorder).
In February of 1991, just prior to the First Iraq War, then-president George H. W. Bush called a group of radio and television evangelical Christian ministers to the White House to hear a speech. Here is the way Time magazine described it:
George Bush prefers action to abstraction, but last week he delivered a fervent argument to bolster support for the war with Iraq. In a speech before a Washington audience of radio and TV Protestant evangelists, he invoked a long-standing Christian doctrine in the battle against Saddam Hussein, that of the “just war.”
Why would a president speak to a group of Christian ministers about his plans to go to war? Could the president be violating the separation of church and state?
Does he call on this group of ministers merely because they can reach a broad audience? Or does he call on them because their support will lend moral legitimacy to the cause of war?
Where does moral legitimacy—the judgment that a practice or policy is legitimate—come from? I suggest it comes from within each person—from inside of me and inside of you. But if this is so, how does moral legitimacy come to be associated with religion or religions?
Over the centuries, philosophers in various traditions have addressed the question of whether war can be justified. John Rawls, a major voice of liberalism in modern philosophy, has developed a theory of just war that permits the killing of civilians under some circumstances—what Rawls calls a “supreme emergency exemption.”
I will critically review Rawls’ proposal and offer some suggestions concerning just war theories in the present era.
Rawls builds his theory on what is known as a social contract. An astute former colleague of mine told me that the concept of a social contract has roots in the religious notion of covenant. Let’s see if my colleague might be right.
The religious covenant
Powerful movements protesting deep injustices have given rise in the course of history to major societal and political changes. Some of these movements have been associated with religions. The Jews defined themselves as a people in their escape from the injustices that accompanied the practice of slavery in Egypt; Christianity arose in protest against the brutal colonialism of Rome; Islam emerged as a response to endless tribal wars on the Arabian Peninsula. In each of these cases, the people were united in opposition to injustice by an agreement known as a covenant.
The major Western religions have responded to the excesses of traditions: Judaism to the dynastic tradition of Egypt, Christianity to the colonial tradition of Rome, and Islam to the tribal tradition of the Arabian Peninsula.
A positive aspect of early Judaism, Christianity, and Islam is that their members criticized the abusive practices that were taking place in their societies. People who were victimized by slavery, brutal colonialism, or atrocities inflicted by invading armies criticized these practices and, although it was often dangerous to challenge them, they did indeed challenge the practices that made the lives of the victims intolerable. To muster the courage to pose these challenges they had first to ask the question: Are the practices fair to those who suffer from slavery, brutal colonialism, and invasion by foreign armies? If the practices are fair, people can choose to live in such societies; if they are clearly unfair, people can choose to change the unfair practices or, if the effort to change them fails, to leave such societies.
Religious communities have been born and flourished when the victims reached consensus that these practices were unfair. Over the course of centuries, the major Western religious traditions have given an answer to the question of when arms may justifiably be taken up. Common to these traditions is the view that a community can rightfully defend itself against an invasion. Self-defense has been the central principle in just war theories.
However, negative aspects of the just war theories may be found. One of these negatives is brought out by Fr. Richard McSorley, a confidante and advisor to President John Kennedy. Fr. McSorley points out that just war theories have been used to justify all wars. (McSorley, New Testament 94).
How could this happen? How could traditions that arose in opposition to injustices, terrorism and brutality develop to the point of justifying wars? One clue as we probe for an answer is that each of these traditions evolved following the original protest movements against slavery, brutal colonialism, and endless warfare. As we look at the history of these major Western religions, each at some point became an official or established religion. A kingdom arose in Judea some centuries after the Jews migrated from Egypt; Christianity was legalized in the Roman Empire during the fourth century and soon became the official religion of Rome; Islam became the official religion of the Ottoman Empire.
What can happen when a religion becomes an official or established religion of the state? Official or established religions have engaged in: inquisition, persecution, crusades, civil wars in the name of religion, sectarianism, and segregation.
Our first clue in trying to understand how religions came to justify warfare, then, is that some religions have become established religions. We may say that not all is well when a religion becomes an official or an established religion. The colonization, civil wars, crusades, and inquisitions occur when the policy-makers in a community perceive that they must defend a way of life. A sense of danger from present or imminent threats leads the community to prepare, in the name of self-defense, to defend their way of life.
A covenant or agreement involves a choice of the rules the society would follow if it is to be considered a fair society in which one can choose to live. The covenant is initially an implied agreement among victims that a major injustice is taking place; when a protest movement succeeds and later becomes an official religion, the covenant takes the form of a two-party agreement between leaders and followers. The followers promise fidelity and service to the leaders in exchange for protection by the leaders.
The religions, after the initial protest period, provide a complete set of guidelines for one’s life—commandments and a set of virtues to live by.
The religions also present a vision of a harmonious world that contrasts with the chaotic worlds of slavery, colonialism, and endless warfare.
The initial movements in Judaism, Christianity, and Islam stem from concerns for the suffering of individual humans subjected to brutal treatment by other humans. When these religious movements flourish in a society and are given official recognition or official status as established religions, the main focus shifts from the well-being of individuals to the survival of the collective—the community. Concern for the individual’s well-being gives way to a different priority—the community’s survival. The representatives of the movements become the voices that lend moral legitimacy to the state’s policies. The state becomes the possessor of rights; the individual the bearer of responsibilities to the state.
The authors of the just war theories—Augustine and Aquinas in the Christian tradition, for example—explicitly set out to preserve a degree of humanity in the midst of the inhumanity of war.
How did it happen that the intentions of these authors became so badly misconstrued? We could answer this by saying that when the community’s right to survive takes priority, the coercive power of the state (the military might) is given a central place. A prevailing view that “might makes right” then dilutes and co-opts the principles of just war that are meant to constrain this might or power.
An attitude of superiority is often linked to a commitment to a particular way of life when the way of life is viewed as an improvement upon other ways of living that include forms of oppression (slavery, brutal colonialism, and endless war).
Claims that some ways of life are superior have been expressed with such language as religious vs. pagan or civilized vs. barbaric. Moral legitimacy gives way to moral superiority when the language of believers vs. unbelievers—faithful vs. infidels—appears. The attitude reflected in such language frequently results in one group regarding themselves as human while the “other” group is said to be subhuman. Reducing the other to subhuman (“animals”) reflects an attitude of superiority. When this happens, conquest and triumphalism become features of wars fought in the name of religion. These features render religious wars indistinguishable from wars fought on the principle of might makes right.
The following comment from Gandhi provides a reply to such language and the brutal practices that follow from such attitudes: “Religion itself is outraged when outrage is done in the name of religion.”
Moral liberalism and the social contract
Some movements have arisen in opposition to brutalities committed in the name of religion. A tradition known as moral liberalism emerged to protect individual citizens from the excesses of absolute monarchs and the colonization and wars these monarchs engaged in—often in the name of religion and with the support of religious leaders.
The moral liberal tradition includes Kantians, who accept a social contract, and utilitarians, who do not accept a social contract. The social contract in the moral liberal tradition is a multi-party agreement that may be illustrated in this way. Imagine that we are elected representatives making a constitutional decision about whether to have slavery in our society. Cards have been passed to each representative, but the cards are turned face down. The faces on the cards indicate whether you, the representative, will be among the least well off (a slave, for example) or among the best off in economic terms (a slave master). After the vote, you will find out whether you are a slave or a master, but first you will vote with the cards face down.
Would you choose to live as a slave in a society that permitted slavery? When I play this decision-making game with my students, the vote in virtually every case is unanimous against having slavery. A similar vote might be taken regarding colonialism in a society in which the colonists were brutalized by the occupiers or in a society where innocent persons were being victimized by foreign invading armies?
Thinkers during the 17th and 18th centuries were particularly concerned about the effects of colonization, slavery, and wars fought in the name of established religions. These philosophers spoke of a state of nature and a state of civilization: the state of civilization began when people agreed to a procedure for creating a set of rules by which to live.
The philosophy of moral liberalism helped to shape the Bill of Rights in the U.S. Constitution, and the opening provision in the first Amendment of the Bill of Rights begins: “Congress shall make no law respecting an establishment of religion or preventing the free exercise thereof….” The Revolutionary War was fought to bring an end to British colonial rule and, within a century, the Civil War was followed by the prohibition of many forms of slavery.
Just as the legitimacy of the various religious movements has come from the protection of the individual from forms of oppressive practices, the legitimacy of moral liberalism comes from its role in creating rules that protect individuals from oppressive practices. In the minds of the followers—whether of different religions or of moral liberalism—the legitimacy of the movements they follow comes from the protection they provide for individuals and the value, dignity and worth they assign to individuals.
John Rawls and the social contract
In recent decades, the influential American philosopher John Rawls has been a major voice in the part of the liberal tradition that traces its roots to Kant and the social contract. Rawls has attempted to develop a just war theory based on liberal democratic rather than traditional Christian principles of a just war. He holds the belief that liberal democratic states reflect an ideal of government that assures peace. He has written: “Since Montesquieu, writers in the liberal tradition have often held that constitutional democracy combined with commerce and trade would lead to peace among nations. Kant’s ‘Perpetual Peace’ (1795) shows the way” (Rawls, Lectures, 358-359).
In his book The Law of Peoples, published in 1999, Rawls addresses how it could have been that societies with a democratic history did indeed come to wage war against each other. Rawls shares with Kant and others the view that democratic societies have no reason to go war with each other but, in dissecting the causes of World War II, Rawls finds that some democratic states devolved into what he calls “outlaw states” that aggressively invaded the territory of their neighbors. In response to outlaw states, Rawls argues, the military of democratic societies may justifiably under extreme circumstances directly attack civilian populations. Rawls allows what he calls a “supreme emergency exemption.”
Democratic societies, Rawls maintains, have a right to protect themselves and their democratic principles against outlaw states. This right is based on the aim of democratic states and the principles upon which democratic states are built. The aim of democratic states, Rawls proposes, is to create a sustainable society within a sustainable global community. The basic principles of democratic states are agreed upon in a social contract that reflects a fair-minded point of view.
Rawls’ two principles of justice for a single society
Rawls describes the details of a fair-minded point of view in his 1971 book A Theory of Justice. Those who enter a social contract, he proposes, do so from behind what he calls a “veil of ignorance.” One way of thinking about this perspective is that the basic principles are chosen with the cards face down, as it were.
From behind a veil of ignorance, or with the cards face down, the negotiators of the social contract do not know their own position in society—whether they are among the best off or the least well off in terms of position and talents. When they consider whether slavery should be part of their society, for example, they do not know whether they are a slave or a master.
Rawls builds his theory on a complex view of human motivation—namely, that people are capable of acting from a motive that includes both self-interest and altruism. A distinctly third motivation that incorporates self-interest and altruism helps to explain many features of human decision-making. This third motivation is the capacity of humans to seek mutual advantage. Humans have a natural sense, according to Rawls, that enables them to seek more than personal advantage. They can be motivated by the desire to seek the advantage of everyone affected by a decision. Rawls describes this motive as fair-mindedness.
Rawls’ starting point is game theory, which recognizes that humans compete in games and various practices. Besides participating in competitive games, humans also can engage in cooperative games and practices. Even beyond cooperative games, humans can participate in games and practices to seek mutual advantage. One practice in which humans seek mutual advantage is the making and sustaining of communities.
Rawls anticipates that, as people set up the constitution for a society from a fair-minded perspective that seeks mutual advantage, they would choose two principles of justice—an equality principle and a difference principle.
The equality principle states that everyone has a right to maximum basic liberty compatible with an equal liberty for all.
The difference principle states that differences in the distribution of social goods—such as wealth and income—are acceptable provided that such differences are to everyone’s advantage, including the least well off, and provided there is equality of opportunity for all. (Rawls, Theory 60-61, 83, 302-303).
From these two principles, Rawls maintains, such basic human rights as life, liberty, and property can be derived. Rawls proposes that the liberty principle generally takes priority over the difference principle. Some of Rawls’ followers have argued that a right to health can also be derived from these principles (Daniels, Just Health 2008). The role of a democratic society based on social contract is to protect the human rights of individuals and thereby to make the society sustainable.
Rawls’ principles of justice and international relations
In The Law of Peoples, Rawls proposes that a point of view similar to that adopted to choose principles for a single society can also be adopted for the choice of principles to govern international relations. While his Theory of Justice in 1971 outlined a theory for a single society, he writes in his later (1999) book on the law of peoples of a second level contract with the representatives of states as negotiators of the social contract for international relations.
In much the same way that the negotiators of the first or domestic contract agreed on two principles, Rawls argues, the negotiators of the second or international contract would agree on, at minimum, eight principles. These are principles that generally correspond to ius ad bellum (principles on whether to go to war) in traditional just war theory. Rawls indicates that he has extended his theory of justice to international law “for the limited purpose of judging the aims and limits of just war” (Rawls, Law 4).
Rawls’ eight principles for international relations
The first of Rawls’ eight principles emphasizes freedom; the second, the keeping of promises; the third, the equality of parties to the contract; the fourth, territorial autonomy. Rawls’ emphasis on liberty is apparent in these four principles.
- Peoples are free and independent, and their freedom and independence are to be respected by other peoples.
- Peoples are to observe treaties and undertakings.
- People are equal and are parties to the agreements that bind them.
- Peoples are to observe a duty of non-intervention.
The aims of just war may be seen explicitly stated in Rawls’ fifth and sixth principles. The fifth cites self-defense as the sole justification for war (gaining resources or spreading a democratic way of life are not legitimate grounds); and the sixth principle supports the protection of human rights (including the human rights of the enemy’s citizens). In principle seven, Rawls endorses limits in the conduct of war. Principle eight expresses a duty to help societies that Rawls describes as burdened peoples living under conditions that prevent their having a just or decent political and social regime. Such conditions include a lack of “political or cultural traditions, human capital and know-how, and, often, the material and technological resources needed to be well-ordered” (Rawls, Law 106).
- Peoples have the right of self-defense but no right to instigate war for reasons other than self-defense. Peoples are to honor human rights.
- Peoples are to honor human rights.
- Peoples are to observe certain specified restrictions in the conduct of war.
- Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime. (Rawls, Law 37)
Rawls’ terminology in his principles for conduct in war
Rawls stipulates the meanings of technical terms in his statement of the principles of conduct in war. Rawls’ six principles, which appear below, are principles on how to wage war. In the just war tradition, such principles are classified as ius in bello.
By “well-ordered peoples” Rawls means peoples who follow a liberal conception of right and justice in accord with the principles agreed to by representatives of states from behind a veil of ignorance. A well-ordered people “does not have aggressive aims and it recognizes that it must gain its legitimate ends through diplomacy and trade and other ways of peace” (Rawls, Law 64-66).
Rawls uses the term “outlaw states” to refer to “…regimes [that] refuse to comply with a reasonable Law of Peoples; these regimes think a sufficient reason to engage in war is that war advances, or might advance, the regime’s rational (not reasonable) interests” (Rawls, Law 90).
By “rational interests” Rawls means self-interest or, in the case of nations, national interest.
While “reasonable interests” do not have a defining feature in Rawls’ political liberalism, Rawls describes reasonable people as those who manage conflicts by accepting the principles agreed to in the social contract.
Examples of “means-end reasoning” are utilitarian and cost-benefit reasoning and weighing national interests. (Rawls, Law 96)
Rawls’ six principles regarding conduct in war
Rawls has referred, in principle seven above, to limits or restrictions in the conduct of war. Here are Rawls’ principles for restricting the conduct of war:
- The aim of a just war waged by a just well-ordered people is a just and lasting peace among peoples, and especially with the people’s present enemy.
- Well-ordered peoples do not wage war against each other, but only against non-well-ordered states whose expansionist aims threaten the security and free institutions of well-ordered regimes and bring about the war.
- In the conduct of war, well-ordered peoples must carefully distinguish three groups: the outlaw state’s leaders and officials, its soldiers, and its civilian population.
- Well-ordered peoples must respect, so far as possible, the human rights of the members of the other side, both civilians and soldiers.
- Well-ordered peoples are by their actions and proclamations, when feasible, to foreshadow during a war both the kind of peace they aim for and the kind of relations they seek.
- Practical means-end reasoning must always have a restricted role in judging the appropriateness of an action or policy. (Rawls, Law 94-96)
Rawls’ supreme emergency exemption
Rawls considers whether certain acts in the conduct of war are just or unjust. He cites as unjust the nuclear bombing of Hiroshima and Nagasaki and the fire-bombing of several Japanese cities, along with the fire-bombing of Dresden, Germany toward the end of World War II. However, on the grounds of what he calls a “supreme emergency exemption,” Rawls considers as justified the bombing of Hamburg and Berlin earlier in World War II” (Rawls, Law 98-99).
My response to Rawls’ supreme emergency exemption
I was quite surprised when I first encountered Rawls’ supreme emergency exemption, since it seemed quite inconsistent with the Rawls’ own principles.
I begin my response to Rawls’ supreme emergency exemption by recalling my cousin Gordon’s suffering. He saw combat in Vietnam and agonizes over every new U.S. military involvement. In a conversation I had with him, he said: “You don’t know what happens to families in war zones.”
When I learn of refugees from wars, I ask myself why the numbers of refugees are so high. Half of Syria’s population of 17 million people, for example, has now been driven into refugee status. I take a cue from my cousin’s comment and conclude that many are desperate and driven to protect their families from the terror, the maiming, and the killing that takes place in a war zone. In addition to protecting their own persons, parents feel a strong obligation to the next generation and act on that sense of obligation.
John Rawls in his Theory of Justice discusses obligations to future generations in regard to environmental and genetic issues. He speaks of a contract between the generations and proposes that the negotiators of this intergenerational contract be viewed as heads of families. As heads of families, the negotiators know that they care for particular others. (Rawls, Theory 107, 128, 140, 284-293).
I give a broad interpretation to the notion of heads of families. Families may take many forms: some include the bearing and rearing of children, others the rearing (but not the bearing) of children, while still others involve the nurturing of intimate relationships in voluntary relationships. In the third type, no children need be involved. The key feature of Rawls’ proposal is that the negotiators know they care for particular others. They are not merely impartial rational spectators who more closely resemble judges than family members who care for and nurture each other.
Building on Rawls’ social contract between generations, I suggest that the negotiators of Rawls’ contract for international relations should be viewed as heads of families. International relations aim at a sustainable world that can support the present and future generations. For this reason, it is appropriate that the negotiators of the contract for international relations be viewed as heads of families, nurturers of other persons and of the next generation.
These negotiators would, I suggest, accept Rawls’ principles as ideals, but they would not agree to his supreme emergency exemption. They would hold up the principles as ideals to aim for, but the prospect of subjecting innocents and loved ones to highly destructive remote release weapons—such as bombs, missiles, explosive drones, and other devices—would lead the negotiators to remove from the agenda the deliberate targeting of civilians.
Rawls offers the following comment on the social contract as an ideal. He writes: “Viewing the theory of justice as a whole, the ideal part presents a conception of a just society that we are to achieve if we can. Existing institutions are to be judged in the light of this conception and held to be unjust to the extent that they depart from it without sufficient reason” (Rawls, Theory 246).
Each of Rawls’ six principles in the conduct of war can be read as supporting a prohibition on the deliberate targeting of innocent civilians. When these ideals are violated in an actual war, then, the targeting of civilians can be considered an injustice. Indeed, Rawls himself regards as great wrongs the several instances of the targeting of civilian populations in Japan and Dresden during World War II. The bombing of Hamburg and Berlin, I will contend, should be included as well among the great wrongs.
Principles four and five of Rawls’ principles of conduct in war strengthen further the case for the removal of targeting civilian populations from the agenda. Democratic peoples foreshadow even during wartime the kind of society they would like to bring about, a society that includes the protection of human rights.
One finds in Article 16 of the U.N. Declaration of Human Rights: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” The family has a right to protection not only by its own state, but by the larger society as well. I propose the negotiators would agree that the protection of the family from the devastation of war zones may be regarded as a human right. Refugees, I suggest, are seeking a setting that meets the condition of the social contract that families be protected.
Rawls employs means-end reasoning in his argument when he distinguishes between the bombing of Hamburg and Berlin on the one hand and the bombing of Dresden and several Japanese cities on the other. Civilian populations were the intended targets of each of these bombings. Rawls maintains that the outcome of World War II was no longer in doubt when the Japanese cities and Dresden were targeted. When the civilian populations of Hamburg and Berlin were bombed early in the war, however, the outcome of the war was still an open question. Rawls maintains that the outlaw state under the Hitler regime could have prevailed at that point in the war, and the bombing of Hamburg and Berlin promised a substantially good outcome. England was alone at that time, and targeting Hamburg and Berlin was needed to break the superior power of the Germans. Rawls concludes that, for these reasons, the deliberate targeting of civilian populations in Hamburg and Berlin was justified.
Michael Walzer reminds us of the results of the means-end reasoning and its use by leaders of a democratic society: “As a direct result of the adoption of a policy of terror bombing by the leaders of Britain, some 300,000 Germans, most of them civilians, were killed and another 780,000 of them seriously injured. No doubt, these figures are low when compared to the results of Nazi genocide; but they were, after all, the work of men and women at war with Nazism, who hated everything it stood for and who were not supposed to imitate its effects, even at lagging rates.” (Walzer, Just 255)
Walzer also points out the intentional nature of the bombing of German civilians: “The decision to bomb cities was made late in 1940. A directive issued in June of that year had ‘specifically laid down that targets had to be identified and aimed at. Indiscriminate bombing was forbidden.’ In November, after the German raid on Coventry [England], ‘Bomber Command was instructed simply to aim at the center of a city.’ What had once been called indiscriminate bombing (and commonly condemned) was now required, and by early 1942, aiming at military or industrial targets was barred: ‘the aiming points are to be the built-up areas, not, for instance, the dockyards or aircraft factories.’ The purpose of the raids was explicitly declared to be the destruction of civilian morale. Following the famous minute of Lord Cherwell in 1942, the means to this demoralization were specified: working-class residential areas were the prime targets. Cherwell thought it possible to render a third of the German population homeless by 1943.’ (Walzer, Just 255-256)
The means-end type of reasoning that Rawls himself employs reaches an inevitable conclusion in Cherwell’s commands, as reported by Walzer. Rawls’ use of means-end reasoning may be seen as a violation of Rawls’ own sixth principle on the conduct of war, which states that means-end reasoning should be restricted.
I expect that the negotiators of a social contract, when viewed as heads of families would apply Rawls’ restriction in principle six to any deliberate targeting of civilian populations. This restriction would be consistent with Rawls’ central insight—namely, the vivid perspective he calls the veil of ignorance (or turning the cards face down) for representing the views of victims and the least well off.
Perhaps we can get a clue to the reason for Rawls’ acceptance of the supreme emergency exemption from his emphasis on liberty. Rawls stipulates that the liberty (or equality) principle should generally be given priority over the difference principle. The difference principle, of course, addresses practices that directly impact well-being. The threat to liberty posed by outlaw states seems to lead Rawls to his preference for the defense of a free people, and he views the bombing of Hamburg and Berlin as a strategy that was necessary for the defense of free or well-ordered peoples. When the negotiators are viewed as heads of families, and in the instance when they address the targeting of civilians during war, I propose they would assign greater weight to the safety and well-being of innocents and family members in a war zone than is reflected in Rawls’ supreme emergency exemption. The negotiators would first apply the category “extreme emergency” to the damage inflicted on non-combatants in a war zone and assign priority to their well-being.
Another clue to Rawls’ acceptance of the supreme emergency exemption may be found in Rawls’ proposal that the ideal may be achieved in what he calls a “realistic utopia.” Can one strive for an ideal without the expectation that it will someday be achieved?
I once heard a baseball umpire say that he had been umpiring for fifteen years and, although he tried to call a perfect game every time he went on the field, he had not succeeded in doing so. Yet he continued to try whenever he took the field.
A utopia means “nowhere,” and utopias are presented as ideals to be striven for. To say that one has achieved or can achieve a utopia, however, is to engage in very risky—perhaps even dangerous—talk. When the utopian ideal that a people aims at is a well-ordered, democratic society, to claim that one has achieved the ideal is to place one’s own society above those that do not measure up to the ideal. When the failure to measure up is so great that a non-democratic state is labeled an “outlaw state,” a sense of self-righteous superiority may set in on the part of members of the allegedly well-ordered democratic state. Much harm has followed the emergence of attitudes of superiority.
The best of religious just war theory
The philosopher who created the expression “turning the cards face down” to explain Rawls’ term “veil of ignorance” was Ronald Green, a student of John Rawls (Green 1986). I had the opportunity to ask Green whether he thought of the cards-face-down perspective as a religious perspective. His reply was: “Yes, the best, not the worst, of religion.”
The best of religion, I suggest, includes the religious ideals of protecting the victims of the brutalities of slavery (in various forms), colonialism, and endless warfare; the pursuit of peace and the promotion of a good or just state. These ideals help to explain the moral legitimacy that these religions are given by political leaders and the people in general.
Religion also invites self-examination, including a critical review of the policies of one’s own government. In its ideal form, it challenges a “might makes right” principle and offers in its place principles that place limits on the use of military might. The just war theorists try to avoid reducing the enemy to the other: Thomas Aquinas, for example, envisions a just peace as an outcome of a just war. A just peace does not subjugate the people of the defeated state.
The worst of religious just war theory
These ideals, however, can degenerate into the worst of religion when just war theory is used in the political arena to justify militarism and crusades. Christianity in its origins was a non-violent movement to counter the colonial extremes of Rome that culminated in the dispersion of Jews from Judea during the last decades of the first century C.E. The Christian advocacy of non-violence during this era sought to pique the consciences of the Roman leaders to put an end to Rome’s genocidal policies. This advocacy by the Christians was so threatening to Roman imperial power that imprisonment and execution were practiced extensively by the Romans against the early Christians.
Non-violent movements with religious roots have occurred in various settings. The advocacy of non-violence has been a response to the arbitrary exercise of the state’s coercive power—recent examples of which are the movements led by Mohandas Gandhi in India, Nelson Mandela and Desmond Tutu in South Africa, and Martin Luther King in the U.S.
The worst of religion is illustrated by crusades and inquisitions. Thomas Aquinas developed his theory of just war in a time when Christianity was an established religion. During the Christian crusades in the medieval period, the language of fighting evil and aiming at the good (a good way of life, for example) became part of Aquinas’ just war theory. The theory of Aquinas was used to support militarism and crusades against infidels and apostates.
In addition, as Richard McSorley points out, the religious just war theories have been used to justify all wars. (Think of George Bush’s speech to—not an inquiry of—the ministers.)
Is there any hope for those who continue to turn to religious grounds to advocate for peace and non-violence? Hope for the religious peace activists, I suggest, lies in the goal to pique the consciences of those currently in control of the coercive (military and police) power of the state.
The best of democratic just war theory
The best of Rawls’ ideal democratic theory includes the ideals of peace and a just state.
The principles that Rawls sets down have an additional merit: they may become the basis of self-reflection and self-criticism. The practices of one’s own state can be evaluated in light of these principles—including our own country, the U.S.
Rawls challenges the principle of might makes right and offers principles to moderate this raw power principle.
Rawls reminds us that, when rights are created, we choose worlds rather than merely choosing particular actions or policies. This reminder lies behind Rawls’ own warning about means-end reasoning, whether that reasoning is utilitarian, cost-benefit, or the weighing of national interest. This capacity to choose among possible worlds is one of the powerful features of the ancient traditions, including the religious traditions we have considered. Human rights are created, as Rawls has reminded us, from this perspective.
The great power of Rawls’ analysis—which helps to explain the favorable reception Rawls’ theory has received—is that it taps into a capacity that humans possess and that has been part of human decision-making for millennia. This is the capacity to envision more than the likely consequences of an action or policy. Humans have the capacity to picture different possible worlds: they do so when they turn the cards face down, as it were, and decide on rules from the point of view of anyone affected by the rules—including the least well off. They can, for example, imagine a world in which slavery is legal and a world with no legalized slavery. In choosing a world without slavery, they choose more than a particular action or policy: they choose a world that places slavery out of bounds.
The just war theorists try to avoid reducing the enemy to the other: Rawls’ distinction between a state’s leaders on the one hand and its soldiers and civilians on the other aims to avoid this dangerous attitude. But the hysteria of warfare, fueled by the principle of “might (exercised to protect of a way of life) makes right” can blind persons to this distinction.
The worst of democratic just war theory
When Rawls’ just war theory is employed politically to justify militarism, we are looking at the worst side of his theory.
Rawls writes in regard to the supreme emergency exemption: “We must proceed here with caution” (Rawls, Law 98). Let me offer a reason to reinforce Rawls’ caution. When historically the philosophical principles of just war have been used by a political establishment, as those of Aquinas were used, they have supported militarism and crusades. In the present era, the wars for resources have been endless and have been waged in pursuit of resources that sustain an industrial way of life. They have also been waged in classic colonial style—allegedly to bring a better way of life (democracy) to the countries the U.S. has invaded. On September 12, 2001, George W. Bush described the U.S. response to the events of 9/11 as a crusade. The medieval term “crusade,” a term linked to established religion, is echoed in Bush’s statement.
When Rawls in his philosophy leaves open the possibility that the targeting of a civilian population is justifiable, he is talking about a practice that has come to be associated with military states. His philosophy, which aims to place restraints on the arbitrary use of coercive state power, can all too readily be interpreted by the political establishment in a military state as a justification for the targeting of civilians.
Rawls’ expression “outlaw states” figures significantly in his justification for targeting civilian populations. The same idea has entered the political arena in the expression “rogue states”—meaning unprincipled states.
The terms “evil” and “demonic”—terms that Rawls applies to Hitler’s regime—have been used by U.S. political leaders to justify more recent military actions. The expressions “axis of evil,” “outposts of tyranny,” and “state sponsors of terrorism” to describe the so-called rogue states have appeared in recent political parlance.
Targeting of civilians is more easily justified when a state is labeled as an outlaw or rogue state. When a regime is categorized as evil or demonic, the justification becomes easier still. These labels echo the language of the medieval Christian philosophers in their justification of war against non-believers. The civilian population is punished for the policies pursued by its leaders.
The use of remote release weaponry—bombs dropped from planes, missiles, drones carrying explosives, and other devices—has taken a heavy toll on innocent civilians during the past century. The civilian casualties are described with the euphemism “collateral damage,” but this expression implies that the deaths are unintended. The deaths of massive numbers of innocent civilians have been inevitable and, as we have seen in regard to Britain’s bombing of German cities, intentional with the widespread use of remote release weaponry.
Rawls draws upon Kant’s notion of a peace agreement or a peace alliance, but Kant’s theories preceded industrialization and the modern weaponry of mass destruction. Albert Einstein offers a clearer perspective since he was familiar with the destructive potential of nuclear weaponry.
The aim of just war theory among medieval Christian philosophers was to preserve a degree of humanity in the midst of the inhumanity of war. Their theories, however, were used to justify brutalities inflicted in crusades. Rawls’ theory had a similar intention, but his supreme emergency exemption could be used to justify brutalities inflicted on innocents.
Since the development of remote release weapons that maim and kill exponentially more combatants and non-combatants when compared to earlier weaponry—weapons that in today’s nuclear era also threaten the very existence of humanity itself—the words of Albert Einstein seem best to capture the intuitions of many regarding attempts to humanize today’s wars with rules: “One does not make wars less likely by formulating rules of warfare…war cannot be humanized. It can only be eliminated.” (Einstein 1932).
I endorse the position of Einstein and those who have known the potential for suicidal destruction from nuclear weaponry and, knowing this potential, have protested every war during the past 70 years—that is, during the nuclear era. War in a nuclear era is suicidal.
Nuclear weaponry makes the principle of “might makes right” obsolete, suicidal, and absurd.
In a nuclear era, if one even talks of victory, the only possible victory is a Pyrrhic victory—a victory in which even the so-called winners lose because the price paid for “victory” is so high.
Harsh as it seems, we may be witnessing a collective suicidal behavior in a nuclear era. Today a movement known as anti-natalism is afoot. This is a movement that responds to the prospect of the end of the human species by advocating no bearing of children. Anti-natalism chooses a collective death, as do advocates of war in a nuclear era. Both are setting the stage for self-destruction—of the species and individual self-destruction.
A philosophy of care that has also emerged in our time offers an antidote to anti-natalism. The proposal that I have shared with you was prompted in large measure by the philosophy of care movement.
It is fair to say that both the glory of humans and the tragedy of humans lie in their ability to envision ideals. The glory is found in this extraordinary capacity, while a tragedy can occur when the ideal of a good state is equated with an actual state. The state of civilization was presented as an ideal and the state of nature was conceived as a hypothetical state in the moral liberal tradition. The tragedy grew when the state of nature and the state of civilization were conceived as actual states populated by identifiable groups. Groups classified by moral liberal thinkers—Thomas Jefferson, for example—as in a state of nature have often been regarded as primitive and inferior, and they have been treated as such in colonial settings.
When a society aims at an ideal—such as the ideal of democracy—it does well to regard the ideal as worth striving for while at the same time recognizing the ideal is not fully attainable. To accept this limitation is to retain a healthy sense of one’s place and to avoid the destructive and risky attitude of superiority.
Just as religious just war theory has been used to justify all wars, so too Rawls’ theory with its supreme emergency exemption may be used to justify all wars. War cannot be waged with modern weaponry without killing civilians.
Is there any hope for those who advocate for non-violence on the grounds of democratic just war theory? I propose that the worst features of democratic just war theory can be turned into positive features: the self-reflection that the ideals make possible, I have suggested, can lead one to ask whether the terms “rogue state,” “state sponsors of terrorism,” and the like, can be applied to one’s own state—in our case, to the U.S. To this question I would answer yes, and the hope I see lies in the vigorous application of democratic ideals—as expressed in part by Rawls’ eight principles governing jus ad bellum—to the massive violence the U.S. government perpetrates in the name of its citizens. Rawls’ six principles of the conduct in war, however, like all such principles, raise a presumption in favor of war and have been used to justify misconduct in war in the political arena. Richard McSorley recognized this presumption in favor of war when he wrote that the just/unjust war theory is used as a front for accepting all wars.
Rawls himself offers a glimmer of hope in his call for government officials to act as statesmen in decisions about war: “The politician,” Rawls writes, “looks to the next election; the statesman looks to the next generation.” (Rawls, “Fifty Years”)
Democracy and moral liberalism have themselves become traditions in our own time. They are associated with a better way of life, but a danger of such association is that a government that begins as a democracy may evolve into something that—while it is labeled a democracy—is no longer democratic. It can have the external appearance of a democracy with majority rule but, when the elections are controlled by a privileged, wealthy few and individual rights are left to erode in the society, so-called “democracy” can become another version of established religion. When it adopts a foreign policy that practices aggression outside its own borders for the purpose of gaining resources, a government can be transformed from a well-ordered democracy into (in Rawls’ language) an outlaw state. When it becomes heavily dependent on outside resources to sustain its (industrial) way of life, it is a desperate state populated by a fear-driven people.
Constant vigilance and careful critical thinking must be employed to keep a democracy democratic and avoid its collapse into an outlaw state. I have argued that Rawls’ position contains elements that can help to prevent such a collapse: he speaks of the negotiators of a social contract on behalf of future generations as heads of families. A utopia, however, remains an ideal: to regard one’s own society as an embodiment of a utopian ideal—a “realistic utopia” as Rawls calls it—is to run the risk of adopting an attitude of superiority toward other societies that are regarded as failing to measure up to the ideal. Colonial warfare with its brutalities then, to use an expression from William Butler Yeats—“slouches toward Bethlehem to be born”—and another grass roots movement against injustice lies in wait.
Len Bias’ mother spoke at my daughter’s high school graduation. She had lost two sons, one to an overdose of drugs. Her message to the youth was very simple: “You can choose life or you can choose death.” If we choose life, it follows that we work—as Einstein did throughout his life—to end all war in a nuclear era.
My cousin Gordon brings his granddaughter home from kindergarten each day in a trailer attached to his bicycle: the human spirit struggles to restore itself and finds healing in its love and care for the next generation.
I will give the final words to two of my students who were veterans returned from Iraq—a war fought during the nuclear era. One had been in the invasion of Fallujah and told me that they were ordered to shoot anything that moved—with no distinction between civilians and combatants. The second student responded to our discussion of just war with the comment: “War is not just, it is just stupid.”
Aquinas, Thomas. Summa Theologica. II-II, Question 40. Benziger Bros. edition, 1947. Aquinas’ three principles for engaging in war are: 1) the war must be declared by legitimate authority, 2) for a just cause and 3) with a right intention.
Daniels, Norman. Just Health: Meeting Health Needs Fairly. Cambridge University Press, 2008.
Einstein, Albert. Statement at Geneva Disarmament Conference. 1932. http://www.ppu.org.uk/people/einstein.html (retrieved 10/9/2015).
Green, Ronald. “The Rawls Game,” Teaching Philosophy, 9:1 (March 1986): 51-60.
Kant, Immanuel. Perpetual Peace (1795). Filiquarian Publishing, LLC., 2007.
McSorley, Richard, S.J. The New Testament Basis of Peacemaking. Scottdale, PA: Herald Press, 1979.
Rawls, John. “Fifty Years After Hiroshima.” Dissent, Summer, 1995.
Rawls, John. Lectures on the History of Moral Philosophy. Ed. by Barbara Herman. Harvard University Press, 2000.
Rawls, John. Theory of Justice. Belknap Press, 1971.
Rawls, John. The Law of Peoples. Harvard University Press, 1999.
Michael Walzer, Just and Unjust Wars, New York: Basic Books, 1977.
Yeats, William Butler, “The Second Coming,” Selected Poems and Three Plays, pp. 89-90, Collier Books, 1986.