The Law vs. the Sword: Arthur Ripstein’s Account of the Morality and Law of War

Abstract

Suppose that state A wages war against state D. We want to know at least three things. First, does state A have a moral and legal justification for going to war? Second, what may and must those states’ armed forces do, morally and legally, in the course of fighting their war? Third, if those states’ leaders and ordinary soldiers act wrongly and/or illegally, ought they be punished and if so, by whom? In the parlance of just war theory, we want to know what moral and legal norms regulate the resort to war ( jus ad bellum), belligerents’and soldiers’ conduct in war ( jus in bello), and their conduct after war ( jus post bellum). Arthur Ripstein’s Rules for Wrongdoers, which is the published text of his Berkeley Tanner Lectures on Human Values, offers novel and interesting responses to those questions. It includes comments by Oona Hathaway, Christopher Kutz and Jeff McMahan, and Ripstein’s response to those comments. The book’s chief aim is to provide a solution to a deep and important puzzle about the morality and the law of war. The puzzle is this: According to the law of war and the moral norms which underpin it, states may not (morally and legally) initiate war against other states. They may resort to war only (a) to defend their territorial integrity and political independence against a military aggression, (b) to come to one another’s assistance in the face of aggression, or (c) to prevent the commission of atrocities in other states. Failing that, they and their leadership commit the moral wrong and the legal crime of aggression. Once the war has started, soldiers from both sides are prohibited from employing a range of tactics. In particular, they are legally and morally prohibited from deliberately killing anyone who is not or is no longer participating in the war, such as soldiers who have surrendered and, crucially, innocent civilians. They are also ∗Cécile Fabre. Email: cecile.fabre@all-souls. ox.ac.uk Criminal Justice Ethics, 2021 Vol. 40, No. 3, 256–268, https://doi.org/10.1080/0731129X.2021.1993673