Week 4

Elizabeth Anscombe

• Catholic philosopher
• Not primarily a theologian
• Philosophical thinker seeking to “ground” Catholic ideas

Anscombe’s “War and Murder”

• The problem of “legitimate violence”
• The modern law of war

The problem of legitimate violence

• What is the just attitude to the exercise of violent power on the part of rulers and their subordinates?

Two attitudes:

1. The world is an absolute jungle, and the exercise of violence is only a manifestation of this
2. It is both necessary and right that there should be “legitimate violence”, and the world is much less of a jungle than it would be without it

Two options:

1. Should we withdraw from the world? (e.g., like the Quakers & the Amish)
2. Should we defend civilization, even if violence is necessary, in order to preserve Christian values

Augustine’s problem:

• St. Augustine
• 400 ad
• Christianizing Roman Empire
  
• Threats from foreign “uncivilized” enemies
• Christian charity: The Sermon on the Mount
• Defence of the Church, preservation of civilization

Modern laws of war

• The war convention / just war theory:

Ethics of going to war (jus ad bellum)

• “Just cause”
• “Last resort”

Ethics of soldiers’ actions “in the field” (jus in bello)

• Civilians & “non-combatant immunity”
• Prisoners of war

International law / the law of armed conflict:

Hague Conventions (1899/1907)
IV - Laws and Customs of War on Land
V - The Rights and Duties of Neutral Powers and Persons in Case of War on Land
VI - The Status of Enemy Merchant Ships at the Outbreak of Hostilities
IX - Bombardment by Naval Forces in Time of War

Geneva Conventions & Add. Protocols (1949/1979/1980)
1949 Convention IV Relative to the Protection of Civilian Persons in Time of War
1980 Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons
1995 Protocol IV on Blinding Laser Weapons
1996 Amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices
1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Treaty)

The modern laws of war rely on a set of ancient categories and distinctions:

• Just war vs. unjust war
• jus ad bellum vs. jus in bello
• Combatant versus non-combatant
• “Discrimination”
• “The immunity thesis”

Anscombe’s essay:

• The problem of “legitimate violence”
• The modern law of war

• Christian ethics of pacifism
• Non-combatant immunity (legal principle in laws of war)

Several stages:

Use of violence by the sovereign ruler is necessary and right

• The world is less of a jungle because of rulers and laws
• The power to do violence is essential to having laws
• Violence is necessary for civilization

The “rightness” of legitimate violence applies to:

• Obedience to society’s law (internal dissention)
• Rebelliousness
• Criminality
  
• Defence against aggressors (external enemies)
• Foreign military invaders
• Bandits, warlords and other threats

So far so good – an answer to St. Augustine’s problem:

• Society is essential to the common good; without violence society is impossible
• But, why is this just attitude justifiable?
• By what grounds do we decide when doing violence is legitimate?

Basic answer:

• It is always wrong to commit murder
• (the bedrock of Christian pacifism)
  
• Murder is the intentional killing of the innocent
• We should follow the principle of non-combatant immunity because it distinguishes the civilians (who are innocent) from the soldiers (who are guilty)
  
• Within Anscombe’s approach, intention is the basis for deciding whether killing is justifiable

What is murder?

• Killing of the innocent by direct aim or directly chosen means

Questions for discussion:

1. Ethics of universal conscription
2. The “jungle” as a metaphor of human nature & society
3. Internal dissention à External enemies
4. Migration à building a world with walls
   
   

Debate about the immunity thesis

• Anscombe
• Fullwinder
• Alexander
  
• “Just war theory” & “The War Convention”
• The modern Law of Armed Conflict
• Discrimination
• The immunity thesis

What are the pivotal questions?

• Under what conditions is killing justifiable?
• When does a person relinquish the right to life?
• Can we find a clear distinction between soldiers and civilians during times of war?
• Can we defend the immunity thesis?

Non-combatant immunity:

• Absolute immunity for non-combatants
• Anscombe’s doctrine of double effect
• Fullwinder’s doctrine of double effect
  
• Walzer’s modified doctrine of double effect

Why is the debate important?

• Discriminating combatants from non-combatants is crucial to just war theory
• Discrimination enables us to hold that some wars are justifiable
  
• Not just facts
• Morally relevant characteristics

The immunity thesis enables us to shelter large numbers of civilians from the curses of war

• Target selection & military necessity:
• Land mines
• Altitude bombing

Anscombe’s immunity thesis: innocence

Innocence

• Answering St. Augustine’s problem:
• Society is essential to the common good; without violence society is impossible
• Violence done for society’s benefit, under the sovereign’s authority, is justifiable
  
• But, when exactly is killing justifiable?
• On what grounds do we decide who is liable to be killed?
• Who has surrendered their right to life?

Basic answer (as above):

• It is always wrong to commit murder
• (the heart of Christian pacifism)
• Murder is the intentional killing of the innocent
• We should follow non-combatant immunity since it distinguishes civilians (who are innocent) from soldiers (who are guilty)
  
• Within Anscombe’s approach, intention is the basis of deciding whether killing is justifiable

Anscombe’s two problems:

1. Christianity’s absolute prohibition on murder
2. The permissiveness of intention

Doesn’t Christian pacifism always condemn killing? (doesn't it involve an absolute prohibition?)

• “Yes and no”
• Pacifism originates from Christianity and the condemnation of killing found in Christian tenets
  
• The “prevailing interpretation”...
• New Testament prohibits legitimate violence
• Old Testament condones it (even promotes it)

The prevailing view has two defects:

• It prohibits: i) all use of force by rulers, and ii) soldiering as a profession
• Thus, it's impracticable “in the jungle”
  
• And, it results in: “universal forgetfulness of the law against killing the innocent”
• Suggests Christianity is an “ideal and beautiful religion, impracticable except for a few rare characters”
• Teaches people to make no distinction between shedding of innocent blood and shedding of any blood
• Seeing no way to avoid violence and killing, people set no limits
• “The absolute prohibitions of Christianity by no means exhaust its ethic”

The doctrine of double effect

• Neither your aim nor your chosen means can be to kill an innocent

The immunity thesis --> doctrine of double effect

• Isn’t intention way to permissive? (i.e. subject to abuse?)

Categories of targets:

1. Soldiers, officers, suppliers, armament factory workers; those who contribute directly to the war effort
2. The entire civilian population

Fullwinder’s immunity thesis: self-defence

Objectives:

• To fortify and focus the immunity thesis
• Improve the Doctrine of double effect
• His challenge: to jettison Anscombe’s emphasis on “intention”
  
• Two commonplace ways to defend immunity thesis:
• Anscombe’s idea of innocence (Criminality model)
• Mavrodes’s idea of the law “standing alone” (Conventionalist model)
  
• Fullwinder’s idea: self-defence (Aggression model)
• ...Killing is justified only in situations of self-defence

Anscombe’s approach presupposes “criminality”:

• Combatants can justifiably be killed because they are guilty
• Non-combatants can’t justifiably be killed because they are innocent
• But, certain combatants seem “innocent” and certain non-combatants “guilty”
  
  Combatants:
  Soldiers are often drafted, unwilling participants
  
  Non-combatants:
  Civilian non-combatants are often more like direct participants
  
• Medicals, clerks, cooks, politicians, political writers ...
• Farmers, spouses, tailors, transport drivers

Hence, Anscombe’s criminality model breaks down

Non-combatant immunity:

• Absolute immunity for non-combatants
• Anscombe’s doctrine of double effect
• Fullwinder’s doctrine of double effect
• Walzer’s modified doctrine of double effect
  
• How do we distinguish between combatants and non-combatants?
• How to defend the immunity thesis?
  
• Use a principle of self-defence ...
  
• Fullwinder invokes the ‘principle of self-defence’:
• “It is morally permissible to kill someone whose actions put your life directly and immediately at risk and that is the only way to end the threat”

Two arguments:

1. Analogical argument (Jones versus Smith)
2. Wrongness of an action that forces you into fight

• P1* Principle of self-defence: It is only morally permissible to kill someone, in self-defence, who is the agent of a direct and immediate threat to one’s survival (or one’s nation’s survival)
• P2* Enemy combatants are agents of a direct and immediate threat to one’s survival (or one’s nation’s survival), and enemy non-combatants are not
• C* It is morally permissible to kill enemy combatants in self-defence, but it is morally wrong to kill enemy non-combatants in self-defence

What were our key questions?

• Under what conditions is killing justifiable?
• When does a person relinquish the right to life?
• Can we find a clear distinction between soldiers and civilians during times of war?
• Can we defend the immunity thesis?

Self-defence as a foundation for the immunity thesis:

• Defence of nation or defence of self?
• Using self-defence, can we find a distinction between soldiers and civilians that works during times of war?

Alexander, “Self-Defence and the Killing of Non-combatants: Reply to Fullwinder”

• Self-defence easily broadens
• Can’t we now also include indirectly involved non-combatants?
• For example: i) officers and ii) political leaders in the enemy army?

15 minute essay: The Fullwinder versus Anscombe debate

• Central questions:
• When is killing justifiable?
• How do we maintain a moral distinction between combatants and non-combatants during war?

1. Select either Anscombe’s or Fullwinder’s account of the immunity thesis.
2. Summarize its key claims in your own words, and state them clearly in one or two sentences
3. Explain your reasons for supporting that account