War Crimes and Just War by Larry May, Cambridge University Press, 2007, 343 Pp

War Crimes and Just War by Larry May, Cambridge University Press, 2007, 343 pp. Irfan Khawaja I. In his pathbreaking (but pre-Internet) book After Virtue, the philosopher Alasdair MacIntyre asks us to [i]magine that the natural sciences were to suffer the effects of a catastrophe. A series of environmental disasters [is] blamed by the general public on the scientists. Widespread riots occur, laboratories are burnt down, physicists are lynched, books and instruments are destroyed. Finally a Know-Nothing political movement takes power and successfully abolishes science teaching in schools and universities, imprisoning and executing the remaining scientists. If there were, say, decades or centuries later to be ‘a reaction against this destructive movement’, seeking ‘to revive science’, they would, despite their best efforts, find that they had ‘largely forgotten’ what science was. They would perhaps possess ‘fragments’ of a field hitherto called science, but this revived science would in the nature of things consist of a knowledge of experiments detached from any knowledge of the theoretical context which gave them significance; parts of theories unrelated either to the other bits and pieces of theory which they possess or to experiment; instruments whose use has been forgotten; half-chapters from books, single pages from articles, not always fully legible because torn and charred. Though there would, under this later iteration, be an activity called ‘science’, almost no one would realise ‘that what they [were] doing [was] not natural science in any proper sense at all.’ MacIntyre describes his fictional scenario as a ‘disquieting suggestion’ and argues, controversially and at some length, that it accurately represents the state of moral theory today. [1] While it makes no reference to MacIntyre, Larry May’s War Crimes and Just War offers a remarkably similar diagnosis of the contemporary state of just war theory and seeks at length to remedy it. The book, May tells us, ‘is the second volume | 91 | Democratiya 11 | Winter 2007 of a projected multivolume set on the philosophical foundations of international criminal law’ (p. 3). Describing contemporary war law, he says: ‘One of the difficulties in defining war crimes is that there have been so many candidates for war crimes over the centuries that they seem not to form a coherent set’ (p. 17). ‘Indeed,’ he continues, it sometimes seems as if what we have is merely a list of rules from different eras, cobbled together into increasingly lengthy [legal] instruments, where there is so little agreement about what their basis is that the list merely repeats previous lists verbatim, lest the original consensus about them be jeopardized by minor changes in wording. (p. 74) This is because ‘[t]he connection between morality and legality’, though crucial, ‘is unfortunately, a neglected topic in natural law theory and the Just War tradition’ (p. 52). Hence the need for a multivolume set, intended to clarify matters: [In the present book,] I reach the conclusion that it is possible to attain honor in war, but only if the traditional principles underlying the rules of war – the principles of discrimination, necessity, and proportionality – are significantly reformulated. (p. 21) To put this conclusion in context, it is worth remembering that ‘the traditional principles underlying the rules of war’ were formulated centuries ago by devout Christians whose moral theorising was the working-out of a specifically theological vision. Morality, to such theorists, had its origin in divine commands and in the requirements of eternal salvation, and could not in the nature of the case be conceived in abstraction from such assumptions. The idea of prescinding from theology comes to us ‘post-Christians’ by way of the catastrophe of the Religious Wars, and arguably consists of wrenching God’s commands from their context while trying to give them meaning outside of that context. [2] It should not surprise us that the result is somewhat akin to the ‘revival of science’ in MacIntyre’s ‘disquieting suggestion’: a patchwork of rules, each wrenched from its original theological context, but embodied in international law as though its authority were self-evident. May therefore has his work cut out for him. As a secular philosopher, he needs to bring order to the chaos of just war theory, and supply a ‘foundation’ for it that will do the work of supporting the theory so as to supplant the will of God. | 92 | KHAWAJA | Contingent Pacifism: A Critique And at face value, he seems like just the person for the job. He is the author of several acclaimed books in philosophy, a former student of Hannah Arendt’s, ‘a scholar of 17th century thought, a political philosopher, and a part-time practicing criminal lawyer’ (p. 22). The book comes with kudos from a well-known expert in the field, who describes it as ‘a powerful synthesis of the author’s extensive knowledge of the history of thought about the just war, his equally comprehensive understanding of the areas of international law concerned with war and conflict, and his formidable capacity for philosophical argument.’ In manuscript form, the book was awarded the prestigious Frank Chapman Sharp Prize from the American Philosophical Association, awarded to ‘the best unpublished essay or monograph on the philosophy of war and peace submitted for the competition’ in a given year. I’m afraid that my assessment of the book is very different. In its favour, it can be said that War Crimes and Just War is written in a calm and equable tone that contrasts with the somewhat hysterical and hectoring style of writing in this field. But the reasonableness of the book’s tone is very much at odds with the utter unreasonableness of its claims, as well as its nearly complete failure to deal responsively with obvious objections. In what follows, I offer an essentially neutral summary of the book’s argument (section II), followed by a critique of its major claims (sections III-V). II. War Crimes and Just War is divided into four roughly equal parts. Part A offers a ‘philosophical grounding’ for the claims of the book, itself subdivided into an argument from ‘collective responsibility and honour during war’ (ch. 2), and an argument from ‘jus gentium [the ‘law of peoples’] and minimal natural law’ (ch. 3). Part B discusses ‘problems in identifying war crimes’, which are resolved in Part C (‘Normative Principles’). Part D focuses on the prosecution of the war crimes discussed in the preceding parts. The argument from collective responsibility and honour in chapter 2 is intended by May as a merely preliminary and relatively shallow justification for the rules of war. The idea is that there is such a motivation as soldierly honour, and by its nature, it seeks to satisfy a higher standard than mere justice (p. 34). Since the State sends soldiers to fight and die, it is ‘collectively responsible’ for what its soldiers bring about (p. 37) (though it seems principally responsible for the dishonour they bring about, not the honour). ‘Because soldiers are acting on behalf of the society, or the State, | 93 | Democratiya 11 | Winter 2007 the society should take a special interest in trying to protect them from the worst effects of being a soldier, for harm to soldiers is also the collective responsibility of that society’ (p. 37). The rules of war discharge this responsibility in two ways: (a) they restrain soldiers from all-out mayhem and thus protect them from moral harm, and (b) assuming compliance by both sides, they serve to restrain soldiers so as to protect them from physical harm. Thus collective responsibility gives ‘us a ground of particular types of minimal forms of restraint on soldiers. When societies, or States, create increased vulnerabilities, they have a responsibility to create rules that reduce the harm likely to be caused by these increased vulnerabilities’ (p. 40). The argument from ‘minimum natural law considerations’ in chapter 3 is supposed to do the lion’s share of the justificatory work in the book, but before getting to it, it may be worth clarifying the concept of a ‘minimum natural law consideration.’ The concept of ‘natural law’ is originally (and essentially) a theological one, denoting in mediaeval Christian parlance the ‘laws’ or moral principles commanded by God and obliging us to do His bidding. The notion of a ‘minimum natural law’ is an attempt (to put it crudely but accurately) to secularise this conception by cutting God out of the picture, substituting one’s own preferred and supposedly uncontroversial moral principles in the place of His commandments, and then giving these principles the moral authority they would have had had they been commanded by a deity. (pp. 58-9). May’s minimum natural law argument begins with an extensive exposition of ideas from Hugo Grotius (1583-1645). The argument begins with the claim that we seek our self-interest, and proceeds by the observation that in doing so, we have to promote the interests of others as well (p. 52). This requirement to promote the interests of others entails considerations both of justice and of ‘humane treatment and mercy.’ Since the latter are (to May) clearly of higher moral stature than the claims of justice, they supersede them. Hence a minimal natural law account requires us chiefly to comply with the principles of humane treatment and mercy, not justice. ‘The difficulty is that in war it seems especially dangerous to treat the enemy in this way’ (p. 59); the enemy seems not to deserve it, and the enemy can take advantage of it to one’s detriment. But, May continues, since a retreat to (the lower perspective) of justice would lead us to endless strife, and we will eventually want to reconcile with our enemies anyway (p.

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