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Jus Post BellumMapping the Normative Foundations$

Carsten Stahn, Jennifer S. Easterday, and Jens Iverson

Print publication date: 2014

Print ISBN-13: 9780199685899

Published to Oxford Scholarship Online: April 2014

DOI: 10.1093/acprof:oso/9780199685899.001.0001

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At War’s End

At War’s End

Time to Turn to Jus Post Bellum?

Chapter:
(p.26) 2 At War’s End
Source:
Jus Post Bellum
Author(s):

Mark Evans

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199685899.003.0003

Abstract and Keywords

This chapter considers two challenges to the appropriateness of jus post bellum as a moral theory for the ending and aftermath of war: first, an argument that it should be clearly distinguished from a morality of peacebuilding: the latter is forward-looking in the tasks it sets itself in a way that jus post bellum is not; second, an argument that a theory of jus ex bello—justice in the ending of war—is logically distinct from a theory of justice with respect to post-conflict rights and responsibilities. In addressing these arguments, the chapter mounts a case for greater conceptual clarity in the theory, centering in particular on “justice” and “just peace” and querying the extent to which an adequate post bellum is indeed a theory specifically of justice.

Keywords:   justice, just peace, justification, jus ex bello, peacebuilding, jus post bellum

I. Towards a Conceptual Toolkit for Jus Post Bellum

As is evident from the contents of this volume, jus post bellum—the account of what justice permits and/or requires in the ending and aftermath of war—can be treated either as a matter of what the law says or implies in this regard, or as a matter of what, independently of the law, morality holds with respect to the issue. These two different concepts of jus post bellum’s content can of course be related: many moral philosophers, for example, would argue (as I do) that they seek to identify the moral principles which animate the body of law that constitutes “legal” jus post bellum. Others, however, argue that the “moral” concept is redundant, sometimes because they are skeptical of the existence of separate moral principles and sometimes because they believe that the relevant moral judgments are either too indeterminate or too contestable (“who is to say what is just, if not the law?”), with no authoritative way of specifying their content. Some thus conclude that it is only the legal concept of jus post bellum that can be really meaningful and useful.

Implicitly, this chapter rejects this conclusion in wishing to bring the legal and moral theorists of jus post bellum into closer dialogue. But, to be fruitful, these exchanges would need to exhibit something that, with some justification, the “legalists” might also believe to be lacking in the moral theory: conceptual clarity. This simple but vital requirement can obviously be levied on both concepts of jus post bellum, but it is particularly pressing on the moral theory insofar as it is posited independently of concrete legal embodiment such as statute, international agreement, and so forth. Its more abstract character renders it more vulnerable to this defect. Perhaps this should come as no surprise: for all that we might try to trace back the origins of jus post bellum into distant reaches of the just war tradition, as a substantive field of moral inquiry in its own right, it is still maturing. Nevertheless, it is here contended that “moral” jus post bellum (and, unless otherwise stated, it is this conception which is hereafter intended by “jus post bellum”) has been, and is, prone to a certain conceptual inattention that needs correcting. Especially insofar as the theory is designed to be action-guiding, this could have significant practical consequences. In assembling the toolkit from which we construct jus post bellum, we thus need not only the right kind of tools but also assurance that they are sharp enough to do the job.

This chapter does not offer a full account of what should be in the toolkit: that is too large an undertaking here. All it can achieve is an opening-up of some lines of inquiry to be pursued in greater depth, but if the argument’s guiding contention is correct, a significant shift in the way jus post bellum is conceptualized may be in order. Modest (p.27) though this chapter’s remit may be, its focus is what is undoubtedly the main tool in the kit: the concept of justice itself. How it is to be understood: its nature or content, and its function or role in jus post bellum are all significant potential sources of unclarity. In particular, there may be reason to doubt what at first sight appears to be a ready point of agreement between “moral” and “legal” jus post bellum, namely, that it is indeed justice which should give us our post bellum orientation. Now, no quibble will be raised with respect to the legal conception’s use of the term to define its content: it may be implicitly accepted that what is legal is therefore what is just, in a straightforward legal sense of what “justice” means. (I offer no view as to whether this is as clear-cut as it appears.) But whether, or to what extent, jus post bellum as a moral theory is a theory of (moral) justice is more complicated than its theorists have allowed. The jusin jus post bellum is typically and perhaps automatically taken to denote that following its precepts means “doing what justice requires.” This chapter urges us to pause at this point: even if jus post bellum gives us an account of what is justified in war’s ending and aftermath, is this necessarily and wholly an account of what justice permits or demands? Here, perhaps we should tweak the chapter’s title: is it, indeed, justice to which we turn at war’s end?

My inevitably selective entry-points into the “clarity” debate raise two general questions about justice in jus post bellum: (a) whether its nature, function, and role might be conceptualized too narrowly to the detriment of jus post bellum’s adequacy; and (b) whether its nature or content might be conceptualized too widely such that jus post bellum labels as “justice” some principles or precepts that are not appropriately thought of as matters of justice at all:

  1. (a) is addressed through consideration of Seth Lazar’s argument that jus post bellummust be clearly distinguished from a morality of peacebuilding: the latter is forward-looking in the tasks it sets itself in a way that jus post bellum, when conceptualized as a theory of how a conflict should be properly concluded, is said not to be. Thus, according to Lazar, jus post bellum has at most a more limited role when the guns fall silent than its advocates have assumed. In response, the flexibility of “justice” will be demonstrated in contention that he is overly dismissive of the role that could be played by what can rightly be called an account of post bellum justice;

  2. (b) is addressed through consideration of Darrel Mollendorff’s argument that what we need morally to determine when a war should be rightly brought to an end is a theory that needs to be distinguished from jus post bellum: jus ex bello. Jus post bellum has officially focused only on how a just war should be ended, and this supposed limitation becomes evident when the relevant moral calculations, which justified the initial resort to war, shift during its course such that morality may permit or require its ending without its initial moral objectives being achieved and, thus, perhaps without jus post bellum’s requirements being (fully) followed. Mollendorff has undoubtedly identified an important gap in just-war theorizing, but this kind of sub-optimal scenario starkly raises the question of whether, or to what extent, it is still justice that guides us in such circumstances. (p.28)

The aforementioned constraints prevent a full account of what is meant by “justice” at each point of these two analyses but, to reiterate, the purpose is to initiate but not fully to conclude the debate: enough can be said to indicate the questions to be raised about jus post bellum’s conceptual make-up and the form that its theory may consequently take. And, with this “inconclusiveness” caveat in place, it is appropriate to preface these discussions with identification of some of the variables that may need to be “decontested”1 whenever we wish to speak of justice.

II. What Might We Mean by “Justice”?

It is entirely unremarkable, because it is hardly unique in this respect, to say that “justice” is a contested concept. To use Rawls’s distinction, while we might agree upon the basic referent of “justice” as a general concept—what it is in general that justice is about—this “core” can be substantiated in various, perhaps rival, ways in the generation of separate conceptions of justice.2 For example, those who argue that justice requires distributing resources according to need and those who argue that they should be distributed according to achievement (“merit” or “desert”) are debating the same general concept but clearly decontest it substantively as divergent conceptions. And note that they have to move beyond the general concept to state what they believe “justice” to mean and entail because the concept is too thin on its own to convey their meanings in full.

Some might argue that “justice” is actually “essentially” contested, in Steven Lukes’s sense of the term: it is inherently liable to rival interpretations because of irreducibly controversial disputes over the specific values that constitute the general concept.3 Thus there is no morally or philosophically authoritative way of positing any one of its conceptions as the “correct” or “best” one: no single conception coherently captures all that might be reasonably thought of as “justice.” If this thesis is valid, it seems plausible to assume that essential contestability is more likely when the initial general concept is complex in terms of the number of aspects that require conception-specific substantiation. To bring this point into our present topic, we might reflect on the concept of a “just peace.” Jus post bellum is standardly depicted as an account of what just victors can and should do in securing the goal of a just peace which is the ultimate aim—the basis of the just cause—of a just war. Jus post bellum theorists will all agree that they are debating the same basic concept when they consider how to understand a “just peace” but it is not difficult to appreciate how readily they may disagree once they begin to spell the specifics of what they understand by it, springing from questions of “what is justice?,” “what is peace?,” “what rights and responsibilities follow from the moral precepts of a just peace?” and so forth. Hence, one reason to think that the concept of a just peace is elusive in the sense of it being difficult authoritatively to explicate in full is that it could be essentially contested.4 (p.29)

One does not have to accept the essential-contestability thesis to recognize that disputes over the meaning of “just peace” may be vexatious and difficult to resolve, and this point is all we need when stocking a suitable toolkit.5 So the rest of this section is concerned not with the specific kinds of value that might populate different conceptions of justice and just peace (the kinds of value at issue, for example, over whether “justice” is about distributing according to need or earned merit) but with other kinds of variables which are manifest in debates about them and of which jus post bellumtheorists need to be aware.

First, some treat justice as a specific principle or virtue, or some set of such, that provides one normative consideration among others against which its claims may have to be balanced. Typically, justice in this sense is very generally about “giving people their due” (and we can see how different conceptions can be generated over how we understand this injunction) and, when working out, for example, which principles should govern the organization of social affairs, the claims of “justice” thus understood might be weighed against others such as “freedom” and “democracy,” with further dispute arising over how that balance is best struck. In other words, there may be legitimate trade-offs between the claims of justice and the claims of other values in determining the best outcome. An attendant variable here is whether one is speaking of justice in a comparative sense—measuring what one is due relative to what is available to distribute with respect to trying to give everyone their due—or a non-comparative sense, measuring with reference to some standard which is independent of what is available to distribute among all relevant subjects.

Others treat “justice” as a “master concept,” some optimal combination of values which together constitute “justice” as the highest or primary quality or virtue of society. The Aristotelian doctrine of justice as the mean, or Larry May’s concept of meionexia, fall into this category.6 Justice in this sense is not, in general, something to be traded-off in any optimal circumstances: it is what is achieved when the best combination of other values has been realized. It might be readily thought that, in its concept of “just peace,” it is this particular sense of justice that is being employed by jus post bellum theorists: “just peace” looks as if it is amenable to an all-encompassing sense of “justice.” But, quite apart from whether this is an altogether satisfactory way of treating “justice” (some reflection on which follows later), they rarely state clearly whether this is indeed how they understand it, thus leaving it mysterious what they mean by justice and hence unclear how one is meant to gauge whether it has been achieved in practice.

It is obviously necessary to specify the object of justice: what is it to which justice is to apply? Often, it is a state of (social) affairs: “society,” the legal system, the “international order,” for example. What state of affairs a “just peace” might refer to may be particularly vexatious: what is it that a theory of jus post bellum believes should be manifest in (p.30) terms of justice and peace? Is the latter, for example, a “macro-level” concept such that a just peace is sufficiently secured if manifest in the major, society-wide institutions and relationships,7 or must it also be manifest at the micro-level of a society, in small-scale communities and individual relationships, for example? We might at this point even move to a different general concept of justice which posits it as a state of character in addition or as opposed to “social affairs” in terms of the arrangements of institutions: a “just society” is thought by some to be a society populated by “just persons,” who manifest certain virtues which are said to be those of justice.

However the object is posited, jus post bellum needs to be sensitive to the distinction between a “just peace” and a “just society” in that, not least in order to specify the specific rights and responsibilities of just victors, the former is a more modest, less demanding goal than the more comprehensive and longer-term objective of the latter. A conception of a just peace will generally take inspiration from a conception of a just society in the sense that achievement of a just peace should, at the very least, lay the foundations for the building of a just society. But completing the latter task is something which conceptions of jus post bellum generally hold not to be an appropriate objective for their remit. Still, some sense of the objects of “just peace” and “just society” would appear to be vital to help us work out accounts of the objectives each ideal yields. And a further issue to decontest has now become clear: we also need an account of the subjects, or agents, of justice: on whose shoulders rest the rights and responsibilities of its pursuit?

The last paragraph prompts the question of how we might postulate when a just peace or a just society has been achieved—a further source of dispute. Some might say that “justice” denotes a definite, fixed end-state of affairs, identifiable by verifying the presence of the requisite desiderata at a specific time at which one could “freeze the moment” when justice is reached, so to speak. One need not assume that all the desiderata must be present in full to make this claim: that could well be too stringent. Nevertheless, this approach assumes that in principle one can identify a fixed “threshold” standard as we look for the decisive moment at which it is achieved. Others may find this overly rigid or static, arguing that social affairs are too complex and fluid to be normatively measurable in any sensible “checklist” way. They may argue instead for treating the concept of a just peace as denoting an on-going process, stretched over time, during which achievement of the individual relevant standards may wax or wane and thus have to be continuously pursued, maintained or repaired (presence of a commitment and ability to do so being more significant here, perhaps, than in the “checklist” approach). This approach to the concepts does not remove the need for a threshold standard altogether—we obviously require some idea of what the process needs to achieve in order to count as being just—but it may be more amenable to its objects’ nature and hence easier to apply. Once again, jus post bellum’s theorists can reasonably be asked to state where they stand on this particular conceptual divide.

We conclude this non-exhaustive survey with another distinction between two concepts of justice, but one over which jus post bellum theorists need not divide in the sense (p.31) that they need not have to affirm either one or the other. Rather, they may recognize both of them are at work in their theories and that they may therefore need to indicate which one is being employed, and how, at various stages of the theory’s assemblage and application.

The two concepts are:

  1. (a) a pristine concept: which posits what is just in, and about, the ideal world. To explain: when we think about what, ideally, the world should be like with respect to justice, we invoke a pristine concept in the sense that it is unsullied by the defects of the world in which we actually live;

  2. (b) a rectificatory concept: which applies to the “real” flawed non-ideal world. “Justice” in this sense is a particular specification of what should be done—what is just—in addressing problems which arise in such a world.

Now, before this distinction is further explicated (and it can be rendered in more complex and nuanced ways which we will not be able to map here), it must be acknowledged that not all theorists of justice will embrace it. Some, for example, think that “justice” is only applicable in non-ideal conditions, for example of moderate scarcity of resources where we have to work out who should get what when we do not have enough to give everyone everything they want: it is exclusively rectificatory. (This Humean disposition is manifest in those Marxian theories which think that “justice,” and the need for it, can be transcended once we reach the ideal world where there are no longer such distributive problems that require redress.8 ) But I contend that just war theory and jus post bellum crucially rely upon this distinction, with the problem being that these theories are not always as clear on this point as they need to be.

Recall the claim that embedded in the just cause of a just war is the commitment to secure a just peace. What this means and requires will vary radically from case to case but, as will be made clearer in the next section, it provides the moral basis from which jus post bellum springs. Next, let us return to the point made a few paragraphs back that a conception of just peace is inspired by a conception of a just society: the former takes its orientation from the latter even though its scope and objectives are narrower. But does anything orient the conception of a just society? The way to answer this question is, first, to see that whatever we think should and can be done is to some extent inspired by a “pristine” conception of what the world should ideally be like, even when our thinking is governed by a belief or recognition that we cannot (yet?) achieve that ideal in full. The pristine denotes our fundamental, most ideal normative commitments and inspires us to reflect and act upon how best we might move closer to their realization. So, while we may appreciate that we will not be able to achieve our pristine ideals, we still need to be clear about them: to keep them in view and under review as guides and inspirations for our non-ideal world thinking and practice.

But talking about a just society in its pristine sense does not preclude us from also having a concept of what a just society might be in terms of what we can realize in the non-ideal world—as long as it is recognized that there are simply different concepts, or (p.32) “types,” of justice here which are not properly reducible just to one. Justice as rectificatory—how we deal with non-ideal world issues—takes its cue from pristine justice but it is no less about justice for that. It is just a different basic concept of justice.

Overall, just war theory is straightforwardly rectificatory in the following sense. Ideally, we should be living in a world where there is no war: the moral need to do so (in response to a grave actual or threatened wrong which would never ideally arise) reveals the radical non-ideality of our circumstances. Thus, there is no pristine concept of justice for just war—but there is a rectificatory concept to ground the justice of a just war, specifying what (rectificatory) justice permits or requires in the just cause that is the military response to the great wrong which caused it. And insofar as the just cause in question is about “just peace” we have two ways of conceptualizing the latter: the first is as a pristine concept itself, which may not be fully achievable at war’s end or any foreseeable time thereafter but which still provides relevant moral orientation; the second as a rectificatory concept, consciously responding to problems that ideally we would wish not to have to deal with but still allowing us to talk of these responses in terms of acting justly. Further, note how the latter may readily subdivide in jus post bellum into a concept of rectificatory justice to cover what justice mandates in the immediacy of a war’s conclusion and, subsequently, a concept of transitional justice to cover processes in building towards a just peace.

The discomfort that many have felt over talking about “justice in war” might sometimes be explicable in terms of a failure to embrace this distinction, thinking only of justice in pristine terms. And it is because we sometimes do think of justice in ideal, pristine terms that we need this concept of it. But actually we often talk of justice in rectificatory terms too: justice is done when we justly punish criminals who should never have done what they have done but whose punishment, whilst not itself a matter of “doing good” in any ideal-world sense, is necessary to redress their wrongdoing in a way that tries to uphold, or at least proclaim, the values of the world in which we would wish to live. There is, then, obvious utility in this distinction for those who talk of justice in the resort, conduct, ending, and aftermath of war, that most shocking of non-ideal phenomena.

But we end this section with a warning about jus post bellum theorizing that is developed in sections IV and V in particular. Granted that justice can be legitimately conceptualized as rectificatory, are there any limits to what might count as the “doing of justice” in this category? Put somewhat differently, are there moral permissions and obligations of the kind that jus post bellum is designed to specify which may nevertheless be so non-ideal that they are not appropriately thought of as matters of justice? The kinds of question raised in this section are unavoidable when we confront this issue and, as I will suggest, rather more may be at stake than a theorist’s desire for clarity and rigour.

III. Jus Post Bellum and the Pursuit of a Just Peace

In a wide-ranging critique of jus post bellum, Seth Lazar claims that it is too backward-looking to be adequate as a theory for what should be done in a just war’s aftermath because, in general, it is too dependent upon just war theory itself for its principles to (p.33) move beyond the war and its justification and to look forward instead to the task of peacebuilding:

Jus post bellum theorists are still too focused on warfighting—assessing our adherence to those standards, remedying the wars done, punishing us for our breaches. It is merely the ex post application of those warfighting principles. [...] Contemporary theorists of jus post bellum have too quickly applied the categories and standards of just war theory to the aftermath of war without reflecting adequately on what it is that we need principles at all—and that is an open question—it should be a subordinate component in a broader ethics of peacebuilding than theories of jus post bellum have been. Just war theory cannot be its only, or even its primary source.9

For reasons I shall shortly present, this may be a valid charge against much contemporary jus post bellum theory and can be regarded, in part, as a consequence of a failure to reflect upon some of the issues raised above. But this need not endorse the rather negative answer Lazar would give to this chapter’s title question. And, to be fair, Lazar himself says that it is quite possible for just war theorists to develop an ethics of peacebuilding under the sobriquet of jus post bellum.10 Indeed—and greater conceptual dexterity with a wider range of tools can help jus post bellum to transcend the limited form it takes in his critique.

Lazar’s “backward-looking” charge is based on three claims about what he takes to be jus post bellum’s main stipulations:

  1. (i) that compensation should be a priority in the aftermath of war;

  2. (ii) priority should be given to the punishing of unjust political leaders and war criminals;

  3. (iii) that states which launch justified interventions become responsible for reconstruction in the states in which intervened on the basis of the so-called “Pottery Barn Principle”—“you break it, you own it.”11

All three claims, he believes, arise from a conception of post bellum duties which is grounded in rectification of the wrongs that initially prompted the war, and in responsibilities arising from the destruction that just combatants have had to inflict during the conflict. In other words, the duties are based on what has taken place and not on any independent considerations of what should be done now that the war has concluded. In response to these claims, then, Lazar proposes that:

  1. (iA) reconstruction rather than compensation should be a priority, with resources going in the first instance not to the most aggrieved but to the most needy regardless of which side they were on;

  2. (iB) just punishment presupposes the presence of adequate and impartial judicial institutions, so it is the construction of those that must logically take priority over actual acts of punishment; (p.34)

  3. (iC) the Pottery Barn principle may place too heavy a burden on just combatants who have already borne so much. They are entitled to expect multilateral assistance in reconstruction.12

Paradigmatic of the theory targeted by Lazar is Brian Orend’s, whose tenets are:

  1. (a) Proportionality and Publicity. The peace settlement should be both measured and reasonable, as well as publicly proclaimed. In general, this rules out insistence on unconditional surrender.

  2. (b) Rights Vindication. The settlement should secure those basic rights whose violation triggered the justified war.

  3. (c) Discrimination. Distinction needs to be made between the leaders, the soldiers and the civilians in the defeated country one is negotiating with. Civilians are entitled to reasonable immunity from punitive post-war measures.

  4. (d) Punishment # 1. When the defeated country has been a blatant, rights-violating aggressor, proportionate punishment must be meted out.

  5. (e) Punishment # 2. Soldiers also commit war crimes. Justice after war requires that such soldiers, from all sides of the conflict, likewise be held accountable to investigation and possible trial.

  6. (f) Compensation. Financial restitution may be mandated, subject to both proportionality and discrimination.

  7. (g) Rehabilitation. The post-war environment provides a promising opportunity to reform decrepit institutions in an aggressor regime. Such reforms are permissible [. . .] but they must be proportional to the degree of depravity in the regime.13

This type of jus post bellum may be labeled “restricted” because of the relatively limited nature of its tenets in terms of the likely timeframe in which they are to apply (not much farther than the immediate aftermath of a war) as well as the scope (the “demandingness”) of the responsibilities of just ex-combatants. (Indeed, given there is nothing explicit about reconstruction beyond the rights-restoration orientation of (g), it may be even more restricted than the version of jus post bellum, with its Pottery Barn principle, Lazar has in mind.)

Sometimes, the aftermath of war may afford no opportunities for any more than these restricted requirements to be observed: it may be as chaotic as its conduct so often is. But, as Lazar seems implicitly to acknowledge, there is no reason to think that jus post bellum is always and necessarily restricted in the above sense. To see this, we should reflect upon the “just peace” goal in the just cause of a just war by asking some of the questions prompted in the previous section. For example: what might the goal entail and to what might the tenets it prompts apply? How much is it reasonable to expect of the just combatants-the agents of justice-to bear and in what timeframe? (p.35)

Thus we may conceptualize an “extended” version of jus post bellum, which adds broader objectives to the restricted variant, including the following requirements of just ex-combatants (and perhaps others: there is nothing to say that only the latter bear these post bellum responsibilities):

  1. (1) to take full responsibility for their fair share of the material burdens of the war’s aftermath in constructing a just and stable peace—which may include not only exacting fair reparations but also balancing these against contributions to the efforts to reconstruct the defeated state;

  2. (2) to pursue those national and international political initiatives for war-prevention (and/or, sub-optimally, conflict containment) and post-war reconstruction—based on a broader commitment to promote a just peace in general, and not just between and within the former enemies;

  3. (3) to take a full and proactive part in the ethical and socio-cultural processes of forgiveness and reconciliation that are central to the construction of a just and stable peace—a recognition that “social” as well as “material” repair is typically needed to establish or rebuild peaceful cultures.14

These principles are clearly rectificatory in that they seek to redress some of the wrongs of war but they are distinguished from the restricted tenets in being more overtly concertedly oriented towards a pristine view of a just peace as informing their objectives. Put slightly differently, they include the possibility of (elements of) transitional justice as part of jus post bellum’s objectives and, though the very designation of them as “transitional” indicates their rectificatory character, what it is to which they seek to transition is directly informed by a pristine conception of justice.

The possibility (some would say, given the current state of the world, likelihood) that such extended responsibilities will be extremely difficult to shoulder and/or satisfy at war’s end need not make them any less what justice nevertheless requires in this conception: what we would say, in this instance, is that justice cannot be fully done. And a key reason why this claim can be made also addresses Lazar’s concern that jus post bellum’s moral basis is supposedly retrospective. The basis of post bellum justice is better thought of as resting not simply in rectifying the wrongs of war but doing so in order to build a just peace. This is the forward-looking, constructive element-part of the war’s original justification whose duties carry through the conflict itself into its aftermath. In other words, peacebuilding as what justice requires is an element of the just cause, attendant on the righting of the initial wrong. For this reason, there may even be a case for adding something like the following requirement to jus ad bellum:

For there to be justice in the resort to war, one must plan to wage and conclude it in accordance, as best one can at the time, with the criteria of jus in bello and jus post bellum. (p.36)

To be sure, due to limitations of reasoning and imagination with respect to the extreme vagaries of war, there will very likely be (and there almost certainly should be15 ) significant indeterminacy and provisionality in what objectives, and concomitant responsibilities/constraints, can be brought to bear at the ad bellum stage. But in thinking through the “just-peace” goal, there is a need to reckon seriously with what this may require of just combatants as necessary requirements in the justice of the cause.

Thus we turn to jus post bellum at war’s beginning as well as its end and its focus may still be substantially forward-looking at that end-point even though the theory itself does not shoulder an entire morality of peacebuilding. To isolate one among possibly many reasons to insist on this point: if jus post bellum posits only just ex-combatants as its agents—and we should not take this for granted16—it should perhaps not be thought of as so demanding as to require them to complete (with or without others) the processes of peacebuilding: these requirements probably go well beyond what one could reasonably expect of those who waged the just war. And one reason to think why this may be so arises in particular if we view the “peace” that is aimed for in peacebuilding as a fluid on-going process rather than a definite end-state: it may be unreasonable, and perhaps undesirable, to expect just ex-combatants always to be part of that process in occupation scenarios, for example, given that they should, at some reasonable point, leave an occupied society to learn how to stand on its own two feet.

IV. Prematurely Ending a Just War Justly?

Darrel Mollendorff has proposed that just war theory needs to be completed with a theory of jus ex bello. He claims that this should be conceptualized as being distinct from jus post bellum because the latter “primarily concerns itself with the nature and policies of the post-war order and the constraints that these place on the prosecution of war [...] (jus post bellum) does not provide direct guidance on questions such as whether and how a war, once begun, should be ended.”17 This is a fair comment insofar as jus post bellum theorizing does typically seem to assume that a just war should end once the objectives which require war have been achieved: in addressing justice “in (p.37) the ending” of war, it focuses on how it should be ended, the answer to “when?” being implicitly regarded as self-evident. This attitude is almost certainly too cavalier: again, we can reflect upon the “war is chaos” claim to appreciate that there may be no clear-cut point at which one could say the military elements of a just war’s goals have been achieved. What is doubtful in this case is whether we need a separate theory of justice to answer the “when?” question, as opposed to some kind of theoretical instrument which merely helps us to discern the achievement of the relevant just objectives already posited by the processes of just-war thinking.

This point helps to explain why Mollendorff focuses on two rather different scenarios:

  1. (1) It could be morally required to end a war that initially satisfied [...] the principles of jus ad bellum even though a victory has not been obtained.

  2. (2) It could be right to continue a war that initially failed to satisfy any one (or more) of the [...] principles of jus ad bellum.18

It is undoubtedly vital to think about what morality requires in these cases and the gaps they highlight in theorizing the morality of war are striking. Our present concern is obviously with (1) and, although Mollendorff does not believe himself to be offering an exhaustive account of jus ex bello’s tenets, he suggests that the kind of theory we need will be structured in two parts:

  1. (a) a set of considerations/principles to determine whether a just war should be continued or terminated short of fulfilling its ad bellum objectives;

  2. (b) a set of considerations/principles to determine what should be done in pursuit of peace should the war be justifiably terminated.

For Mollendorff, (a) will feature at least four principles: (i) whether there remains a just cause—either the original cause or one which emerged after the war’s breakout; (ii) whether the war can continue to be waged with proportionate force; (iii) whether there is a continued likelihood of success; (iv) whether new diplomatic alternatives have emerged such that the “last resort” criterion no longer holds. Another principle which I believe suggests itself is whether the discrimination criterion, forbidding the direct targeting of civilians and requiring all reasonable means to avoid injuring/killing them, can still be respected, especially if no “supreme emergency” is present.19 On the other hand, (b) is comprised of principles requiring actions in the ending of war to minimize casualties, damage to infrastructure and the institutions of law and order, and to mitigate other (especially foreseeable but unintended) injustices that might arise (p.38) (ending a war that should be ended on other counts might leave in its wake, for example, hostile divisions in a society whose enmities could be afforded vicious expression once the troops have gone).

One might query whether (a) is as distinct from jus ad bellum as Mollendorff thinks: the tenets of the two are substantially the same, the difference lying only in when the questions they prompt are posed. But our focus is on (b): our question is whether, or to what degree, its requirements are still appropriately thought as those of justice as opposed to some other principle. Here, I sketch an argument to challenge its “justice” credentials and, in the chapter’s concluding section, I will suggest some of its implications with respect to how we might answer some of the questions from section II about how best to understand “justice.”

To mount this argument, I utilize a comment by Mark Allman and Tobias Winright on my account, developed elsewhere, of a justified early termination of a just occupation.20 Not only does it have its own separate bearing on jus post bellum when talking about peaceful occupations, this case may itself be one of Mollendorff’s own scenarios if the occupation has not marked the war’s conclusion. (Hence my account and (b) share very similar concerns to minimize the harm that may be done given their failure to achieve their objectives.) Their claim is that my theory introduces “a slippery slope” into post bellum morality:

It essentially allows an easy out for occupiers who can cut and run, claiming, ‘If we stay any longer we will prevent the defeated from achieving self-sufficiency.’ This paternalistic argument was popular once the U.S. occupation of Iraq proved more arduous than anticipated. [...] Evans seems aware that he has stepped on the slippery slope. He sets a hedge around this argument by articulating six considerations necessary to excuse occupiers from their responsibilities.21 While the nod to realism is appreciated, we contend that just war theory’s rationale for the use of deadly force is [...] a just and lasting peace. The moral force of jus post bellum is precisely that it holds those claiming to fight a just war responsible for the just cause(s) identified in the ad bellum phase. Any stepping back from this rigorous interpretation of the criteria makes for a less honest just war theory.22

The charge is that theories which permit shortfalls with respect to the requirements of justice in war may encourage some kind of dereliction of duty, an overly premature “cutting and running.” Now, we should note an important unclarity here: precisely what sort of criticism is being made of a theory by the claim that it opens up a “slippery slope” possibility? Does that claim necessarily constitute a valid criticism of that theory in itself? A slippery-slope argument says that “one should not do X because that might (in the weak version of the argument) or will (the strong version) lead to Y, and Y is impermissible/bad.” Beyond the putative tendency to prompt bad consequences, the argument points to no intrinsic fault with X. The question must be how culpable is X in (p.39) the advent of Y such that its own impermissibility should result. Putting the question differently: what is meant by the claim that a “shortfall” theory “essentially allows” the “easy out” for occupiers? If by “allow” Allman and Winright mean “gives permission,” i.e. justify, then the theory clearly does not intend to do that. If they instead mean by “allow” that the proposal is insufficiently rigorous, or too incoherently stated to prevent illegitimate uses of its tenets, one still needs to know why this constitutes a reason not to accept it (as opposed, for example, to trying to rework it to address the deficiencies). For in this instance the slippery slope is slid down as a result of an abuse of the theory and, though there may be a prudential reason not to adopt it as a result, it is hardly obvious that something should never be done because of some consequence it does not justify (and indeed would itself condemn).23

The latter half of the passage, however, suggests a different account of the proposal’s alleged deficiency: precisely because it can permit a shortfall with respect to the just-and-lasting peace responsibilities which just war theory and jus post bellum urge on just combatants, it represents some sort of betrayal of those requirements and objectives of justice. But Allman and Winright overlook the significance of calling this a justified rather than just early-termination theory: it is an account of what should be done precisely when the tenets of jus post bellum cannot be fully satisfied. In other words, it applies when it is reasonable to think that justice cannot be secured, at least by the agents (the occupiers) in question. Hence they mislocate my proposal: it is not meant directly to be part of a theory of justice in war’s aftermath, even though it may be an important subsidiary element of jus post bellum.

Thus, the same may be said about jus ex bello in at least some instances of its application: we may be justified in ending a just war prematurely in the sense that its just cause has not been achieved—a just peace cannot foreseeably result—but why call a theory that permits such shortfalls from justice a theory of justice itself? To be sure, a shortfall theory still tries to make the best of a decidedly sub-optimal situation and is in that sense rectificatory. Some might then be tempted to say that justice is still being done if the premature end or exit is the best thing to do. All that has happened is that what can reasonably be done in pursuit of justice has shrunk from the original just cause-and isn’t that what is going on when we formulate a rectificatory theory from the guidance given by a pristine theory? More specifically, isn’t the rectificatory theory of justice (jus post bellum) from which jus ex bello is said to represent a shortfall itself crucially framed by considerations of what is possible in the non-ideal world? Is the difference merely one of degree which, as noted in section II’s discussion of the vagaries in determining when a “just peace” is achieved, is not amenable to any clear-cut line-drawing that would seem to be needed to make the justified/just distinction?

But, in reply, we should stress that this may still represent a shrinkage of “justice” to the point at which the whole theory becomes vulnerable to the devastating charge that (p.40) “justice” has become merely whatever one wants it to mean, overlooking the failures to achieve what justice requires of its agents whether they are at fault for them or not. Put differently, this shrinkage deprives us of the ability to articulate an intuitively powerful (as I would claim it to be) sense that sometimes justice is impossible to achieve and we are forced to act according to other considerations. This applies even to the possibility-informed conception of rectificatory justice: it does not collapse its conception of justice from “possibility in a general, applicable-to-the-non-ideal-world sense” into “whatever is possible in any given situation.” Whenever we talk of justice, rectificatory or otherwise, we believe ourselves to be talking about something which is freighted with value and importance, which is consequently demanding—and sometimes too demanding, given what we are capable of doing at certain times. It is not so empty or flexible as to be something that we can always shape to fit the circumstances: it is not the raw material in the art of the possible, something than can be legitimately subject to some version of what Jon Elster calls “adaptive preference formation.”24 Hence, one way of preventing (or at least identifying and criticizing) the moral backsliding that so concerns Allman and Winright is to avoid such cavalier recasting of moral concepts “conceptualize that conceptualizes away” any shortfalls from justice that are actually being allowed in as performances of justice through such recasting. We may be justified in not fulfilling our duties of justice, but we should not congratulate ourselves in thinking we have done what justice demands of us after all.

V. What Does it Matter if We Call it “Justice”?

If this argument is correct, then we can see how it is not always or only a theory of justice that we need at war’s end. I do not pretend that this argument is complete; indeed, very little argument has been given for the proposition that “shortfall” theories are not (wholly) theories of justice. It is appropriate, then, in this chapter’s concluding comments, to reflect on how that argument might unfold and, in particular, how it might rely on a particular way of conceptualizing “justice.” For it may have significantly more purchase if we understand “justice” as a particular principle, of giving people their due in some sense, and not as a “master concept” which may lend itself rather more naturally to scenarios about which we say something like “this is the best that we can do, all things considered.” But “all things considered” may well indeed have involved a trade-off of values which, though quite conceivably done for the best of reasons, has involved sacrifices and compromises with respect even to some of the considerations we regard as important and valuable among which I categorized justice in the previous section. For example:

  1. (i) we may not be able to punish war criminals who deserve to be punished because the violent backlash that would result is something that it is more important to avoid; (p.41)

  2. (ii) we may not be able to exact the degree of reparations owed to just ex-combatants because that would financially cripple the defeated society, or because a display of magnanimous foregoing is to be preferred;

  3. (iii) we may not be able to track and rectify each and every grievance caused among a civilian population during a war because the administrative and judicial resources are simply not available. Some such rectification is pursued as the best that can be done, but justice is not comprehensively done: it is unjust that many deserving cases go unattended;

  4. (iv) a just ex-combatant state may desire to embrace the demands of forgiveness and reconciliation but a majority of their citizens are not yet ready to forgive and reconcile, and it is thus decided that the democratic principle should outweigh these demands.

Now, something like Larry May’s conception of meionexia cited earlier may offer a way of thinking about at least some of these outcomes as examples of justice having been achieved.25 The sense of something having been given up in each, though, is what gives (what I consider to be readily available) intuitive support to the idea of justice as a more specific principle that may need to be traded off. There is no disagreement between the two types of concept, though, that these are justified outcomes: the best or right thing to do.

At this point, some might impatiently consider all of this to be mere semantics, declaiming that whether something is called “justified” or “just” is trivial in the same way that a rose by any other name would smell as sweet. It is essentially irrelevant what we call a morally justified state of affairs: what matters is that it is indeed morally justified and the name we give it has no bearing on that. But, in response, it should be gathered by now that the usage of “justice” is not as innocent or nugatory as this position would have us think. Calling something a rose when it is not a rose might lead us to expect it to smell as sweet as a rose when in fact it does not: the name could nevertheless fool us into thinking it does, or lead our senses to adjust our appreciation of what counts as sweet-smelling (which would be an example of adaptive preference formation). And it is especially no trifling matter when we are talking about what to call “just” in war. It matters hugely that it is justice which is sought in the waging and conclusion of a just war, not least because of the weighty moral responsibilities it places on those who have taken up arms for its cause, and who are thus to be held to account with respect to it. That something is just is indeed a mark of its justification, but it is justification of a particularly robust type (a “high level” of justification) that war has to satisfy if it is to be justified at all.

Despite the fact that having justice on their side should not induce in just combatants a heightened, narcissistic sense of noble self-righteousness, to claim to have justice on one’s side is undoubtedly intended to perform one or more of three types of speech-act.26 It is a locutionary claim in describing justice as indeed what gives one a moral cause. It aims to have illocutionary effects in thereby eliciting from one’s (p.42) audience their approval and support. And it may also be intended as a perlocutionary act, whereby a claim to be acting justly is itself the performance or establishment of moral justification. The moral and political importance of the latter two in particular should be obvious and one of the conditions for the success of these speech-acts is indeed the accepted conceptualization of justice as something specifically important and valuable. Why, after all, do war-making leaders invariably claim specifically to have justice on their side in attempted execution of these speech-acts? The fact that their opponents contest them on this score, sometimes rightly so and thus causing the speech-acts to fail, only confirms further the argument against the claim that it does not matter what we call justice.

What might justify a shortfall from justice if not simply a different concept of justice? If it is correct to avoid attaching the “justice” label to the “all-things-considered” trade-off of values that may do the relevant work, we might nevertheless not have an alternative name ready-to-hand (perhaps this is an instance of where the name matters not). Perhaps a utilitarian standard is what ultimately does the justificatory work in a shortfall theory but, still, with this type of concept, justice is not equated with maximal utility: the latter may, in this kind of situation, come at the expense of, or without otherwise being able to achieve, justice to the full. This conceptual postulate has some appeal for ex and post bellum morality as elements of, or companions to, just war theory, for a straightforward utilitarianism arguably lies behind its requirements as what is being appealed to when they cannot all be met (the supreme emergency exemption being one example). But the very fact that just war theory places many more constraints on war than the utility maxim is farther reason to think that justice, in the morality of war at least, is not to be conceptualized as an “all-things-considered” standard of which that maxim may be a variant.

Much more needs to be said on this matter: this, of course, is part of the remit of the Jus Post Bellum Project. In particular, we need to inspect further the concept of a “just peace” itself. For, insofar as it denotes a particular desired state of affairs or situation, it is very likely itself to be a compound of values, the product of trade-offs between justice and other considerations which are very relevant in selecting how institutions, behaviors, and relationships should be conceptualized and considered. This need not mean that “just peace” itself signifies a shortfall from justice in the way that jus ex bello or the justified early termination of occupation might. But still we have the question of what is “just” in just peace and hence jus post bellum, and what other concepts are needed for them: the toolkit is far from complete.

Notes:

(1) To “decontest” means to settle on one meaning of a contested term in a particular discourse: see Michael Freeden, Ideologies and Political Theory (Oxford University Press 1996) 76.

(2) John Rawls, A Theory of Justice (Oxford University Press 1972) 5.

(3) Steven Lukes, Power: A Radical View (Macmillan 1974) 9.

(4) This suggestion is explored in Mark Evans, “Just Peace: An Elusive Ideal” in Eric Patterson (ed.), Ethics Beyond War’s End (Georgetown University Press 2012).

(5) An alternative notion here is “effective” contestability, adopted by Michael Freeden to avoid meta-ethical claims about the essential nature of a concept abstractly conceived and instead to denote the effective ineliminability of its contestability in actual political discourse (the logical possibility but cultural unfeasibility of its authoritative decontestation). See Michael Freeden, “Essential Contestability and Effective Contestability” in (2004) 9(1) Journal of Political Ideologies 3.

(6) For discussion of this type of justice, see Larry May, After War Ends: A Philosophical Approach (Cambridge University Press 2012) 6–10.

(7) See, for example, Rawls’s notion of society’s basic structure—the institutions and relationships that profoundly shape liberties, opportunities and resource distribution in society—as being the appropriate site of justice: Rawls (n. 2) 7.

(8) For explication, see G. A. Cohen, Self-Ownership, Freedom and Equality (Cambridge University Press 1995) 138–43.

(9) Seth Lazar, “Skepticism About Jus Post Bellum” in Larry May and Andrew T. Forcehimes (eds), Morality, Jus Post Bellum, and International Law 220–1.

(10) Lazar, “Skepticism About Jus Post Bellum” (n. 9) 221.

(11) Lazar, “Skepticism About Jus Post Bellum” (n. 9) 204.

(12) Lazar, “Skepticism About Jus Post Bellum” (n. 9) 205–17.

(13) Brian Orend, The Morality of War (Broadview Press 2006) 180–1.

(14) For discussion of these tenets, see Mark Evans, “Balancing Peace, Justice and Sovereignty in Jus Post Bellum: The Case of ‘Just Occupation’” in (2008) 36(3) Millennium 533. A much fuller version of extended jus post bellum has recently been published by May, After War Ends (n. 5).

(15) This insistence is inserted in recognition of these limitations as requiring such indeterminacy not simply as a matter of regrettable necessity but as a virtue with respect to the vagaries of what will follow in terms of what should be done at war’s end. It could be a profoundly costly error to try to conform to a whole set of detailed and rigidly preset post-bellum-inspired rules once war begins. But it would be equally erroneous, at least on moral grounds, to use the “vagaries” point to go to the opposite extreme and not plan to wage war with any such thought or constraint with respect to what the war is being waged for. To illustrate: the widely-accepted injustice of the 2003 Iraq invasion does not vitiate the relevance in this debate of the Bush Administration’s recklessly optimistic disregard of the “Future of Iraq” project as an example of the kind of pre bellum responsibility that putative just combatants should shoulder with respect to post bellum planning.

(16) There is no good reason to think that principles of post bellum justice cannot be levied on unjust ex-combatants. Even if they have won their war, the demands of justice on them have no less force and their presumed deafness to them in no way diminishes their moral applicability. Extended conceptions of JPB in particular can also posit principles to be levied on agents who may not have even been direct participants in the conflict: the international community as embodied in the United Nations, for example, with the grounds of these principles obviously arising not from what was done by the combatants in the taking-up of arms (again, contra Lazar on JPB) but from some conception, rooted perhaps in a cosmopolitan ethic, of the responsibilities that the community may have to those among it who have gone to war.

(17) Darrel Mollendorf, “Jus ex Bello” (2008) 16 Journal of Political Philosophy 131.

(18) Mollendorf, “Jus ex Bello” (n. 17) 124.

(19) For Michael Walzer, a “supreme emergency exemption” applies when a combatant society with justice on its side, facing total extinction at the hands of unjust aggressors, has no reasonable choice except to wage war without respect to jus in bello to stave off the existential threat and are thus morally permitted to do so: Michael Walzer, Just and Unjust Wars (4th edn, Basic Books 1992) 34–50. One might think there is no need for jus ex bello in such circumstances but that could be mistaken. Prematurely laying down arms in a fight to the death may be disastrous for the combatants in question but, if they can continue to fight only in ways which are even more morally catastrophic (for example through the use of weapons of mass destruction), then morality may tragically require them to surrender. Whether it is specifically justice which requires them to do so is a variant of the question being opened up here, and which thus requires further investigation.

(20) Mark Allman and Tobias L Winright, After the Smoke Clears: The Just War Tradition and Post War Justice (Orbis Books 2010) 72–4. My theory is presented in Mark Evans, “Moral Responsibilities and the Conflicting Demands of Jus Post Bellum” (2009) 23(2) Ethics and International Affairs 147.

(21) These considerations, which need not be listed here, are given in Evans, “Moral Responsibilities and the Conflicting Demands of Jus Post Bellum” (n. 19) 161–2.

(22) Allman and Winright, After the Smoke Clears (n. 19) 73–4.

(23) In further pursuit of clarity in the terms of an argument’s conduct, and in support of the point being made here, we should consider the appropriate interpretation (which it is not clear they intend) of Allman and Winright’s claim that the theory is “excusing” occupiers from their responsibilities. If one is excused for not doing X, X is nevertheless what one should have done—but there are sufficient mitigating circumstances to render one less vulnerable to condemnation in having done otherwise (possibly even sufficiently so for partial exoneration).

(24) Jon Elster, Sour Grapes (Cambridge University Press 1983) ch. 3. In adaptive preference formation, A is preferred to B simply because A is available and B is not: the best that can be had is the best that is conceivable. “Justice” is not the only value whose preferred conception would seem to be far too casually determined if this is the process by which it was selected.

(25) May, After War Ends (n. 5).

(26) As identified in JL Austin, How to Do Things With Words (Clarendon Press 1962).