The following remarks were delivered by Bill Soderberg at the Peace and Justice Studies Association Annual Conference on October 16, 2015. Professor Soderberg describes John Rawls' overall approach to justice and his views on just war in particular. There are two principles to notice from Rawls' Theory of Justice: the veil of ignorance and the difference principle. What do each of these mean? What does ius ad bellum mean? What is ius in bello? Notice Rawls' eight principles on whether to go to war and his six principles on conduct within war. List three of each and comment on whether or not you think these principles concerning war are right.
Many advocates of non-violence have taken their inspiration from religious movements – such as early Christianity and its non-violent opposition to the abuse of Roman colonial power. Medieval Christian philosophers developed just war theories that sought to preserve some humanity in the midst of the inhumanity of war. During the lengthy period after the 4th century CE when Christianity was an official religion, major Christian philosophers were supporting the use of violence to defend the faith (Aquinas, Summa 1947). Their principles of a just war included the defense of the Christian faithful as a justification for war, principles that political leaders then used to justify the crusades.
In recent decades, the American philosopher John Rawls has attempted to develop a just war theory based on liberal democratic rather than traditional Christian principles of a just war. Rawls comments on 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 he finds that some democratic states devolved into what he calls “outlaw states.” In response to outlaw states, Rawls argues, the military of democratic societies may justifiably under extreme circumstances directly attack civilian populations. I will critically examine this assertion, which Rawls 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 describes the details of this 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, 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.
From a fair-minded perspective that seeks mutual advantage, Rawls anticipates that, as people set up the basic structure of society, 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.
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).
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.
1. Peoples are free and independent, and their freedom and independence are to be respected by other peoples.
2. Peoples are to observe treaties and undertakings.
3. People are equal and are parties to the agreements that bind them.
4. 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; and the sixth principle supports the protection of human rights. 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).
5. 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.
6. Peoples are to honor human rights.
7. Peoples are to observe certain specified restrictions in the conduct of war.
8. 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 stipulates the meanings of technical terms in his statement of the principles of conduct in war. Rawls’ six principles, which appear below, are known in the just war tradition as ius in bello, (principles on how to wage war).
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 has referred, in principle seven above, to limits or restrictions in the conduct of war. Here is a summary of Rawls’ principles restricting the conduct of war:
1. 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.
2. 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.
3. 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.
4. Well-ordered peoples must respect, so far as possible, the human rights of the members of the other side, both civilians and soldiers.
5. 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.
6. Practical means-end reasoning must always have a restricted role in judging the appropriateness of an action or policy. (Rawls, Law 94-96)
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 his “supreme emergency exemption” Rawls considers as justified the bombing of Hamburg and Berlin earlier in World War II” (Rawls, Law 98-99).
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 on a personal note. My first cousin, who saw combat in Vietnam, 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. 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 themselves, they 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 – especially that for international relations – 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 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 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 their 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.
This means-end type of reasoning in Rawls may be seen as a violation of his 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 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, the claim that one has achieved the ideal is to place one’s own society above those that are further from the ideal. When the distance is sufficiently great that a society is labeled an “outlaw state,” a sense of self-righteous superiority may set in on the part of the allegedly well-ordered democratic state. Much harm may follow the emergence of an attitude of superiority.
When a society aims at an ideal – such as the ideal of democracy – it does well to regard the ideal as worth striving for at the same time that it not fully attainable. To accept this limitation is to retain a healthy sense of one’s place and avoid the unhealthy and risky attitude of superiority.
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 ideal of the pursuit of peace and the promotion of a good or just state. Religion also invites self-examination. 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—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.
Is there any hope for those who continue to turn to religious grounds to advocate for peace and non-violence? Hope for the religious 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 Rawls’ ideal democratic theory – which includes the ideals of peace and a just state – can become the worst when his just war theory is employed politically to justify militarism.
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 my own country, the U.S.
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.
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, is all too readily 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 is expressed in the political arena as “rogue states” – meaning unprincipled states.
Targeting of civilians is more readily 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 philosophers in their justification of war against non-believers.
The terms “evil” and “demonic” – terms that Rawls applies to Hitler’s regime—have been used by U.S. political leaders to justify 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. 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. The following comment from Gandhi provides a reply to such language: “Religion itself is outraged when outrage is done in the name of religion.”
The criteria of a just war may serve to remind a people of their own principles. When one’s country violates these principles, the categories “rogue or unprincipled state,” “state sponsors of terrorism,” and so forth may well apply to one’s own country.
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 the deaths of massive numbers of innocent civilians have been inevitable with the widespread use of remote release 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.
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 my case, to the U.S. To this question I would answer a resounding yes, and the hope I see lies in the vigorous application of democratic ideals, as expressed in part by Rawls’ principles, to the massive violence the U.S. perpetrates in our names. 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: “[the just/unjust war theory] is used as a front for accepting all wars” (McSorley, New Testament 94).
The hope for democratic theory is that it reminds us that, when rights are created, we choose worlds rather than merely choosing particular actions or policies. This reminder lies behind Rawls’ warning about means-end reasoning, whether that reasoning is utilitarian, cost-benefit, or the weighing of national interest.
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 hope for democratic theory is that it can retain the perspective from ancient traditions, a perspective that views humans as capable of choosing among possible worlds. Human rights are created, as Rawls has reminded us, from this perspective.
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, Dissent)
Since the development of remote release weapons that maim and kill exponentially more combatants and non-combatants when compared to medieval weaponry—weapons that today 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 will give the final words to two of my students who were veterans returned from Iraq. 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.