All right. Well, thanks very much for coming along in the sort of dog days of the summertime.
I'd much rather be outside, and I'm sure you would as well. So. All right.
So the topic of morality, the law of war, and I'm going to focus specifically on permissible conduct in war and the principle non-combat community,
which confines belligerents at the time to their own military objectives and the legal equality of
combatants which grant the soldiers the same permissions and holds them to the same prohibitions,
irrespective of the justice or injustice of that court. I've got a little handout there for a summary.
It's not particularly condensed, but it gives you some of the gist of some of the things I'm saying,
because the argument quite intense and so have to go along if time to go.
So just a little bit of terminology. So does his side satisfy his own more justified resolve to portray combatants?
Those who say he did not satisfy is not going to call you combatants.
The reason I don't call them judges or unjust combatants is because that implies
that we can determine whether they're just thrown just from the side of their own.
One of my major points is I don't think that's the case. I'm just using that as a placeholder.
So identify the exciting components are only because that's important for developing the structure of the argument.
Now, the dominant figure in late 20th century just war theory, Michael Walzer,
argued that all combatants enjoy equal possess equal permissions to target one another,
grounded in the threat that they pose to each others life in virtue of that threat.
You can buy in from j combatants like lose their rights against lethal attack, though they're not wrong when they're adversaries killed.
By contrast, non-combatants unthreatening by definition, retain those same rights and so are not permissible targets.
Non-Combatant immunity and combatants equality that are grounded in a single argument.
One may implicitly target only those who have lost their rights against lethal attack or combatants have lost that right.
When I was all non-combatants retained,
that was this position developed into something of an orthodoxy which was bolstered by a consonance with international law.
But in recent years, many philosophers have become increasingly dissatisfied with it.
In particular, the provision is discredited his account of how one loses the right to life sciences
and consistency with other plausible beliefs about permissible harmony against war.
So they argue that the morality of harmony is almost always asymmetrical.
A person who defends himself against unjustified attack doesn't become liable to be
harmed by his attacker simply by now posing a threat to become liable to be killed.
The threat one poses must be unjustified. Moreover, posing an unjustified threat is neither necessary nor sufficient for liability.
For example,
a politician contends that you combatants fighting unjustified war might reasonably be thought liable despite not posing any threats himself.
Whereas a child soldier out of his mind on drugs and with a gun to his head might not be liable,
despite posing a threat because his critics have concluded that what matters for liability is three things one responsibility for two,
contributing to threats of three unjustified harm.
So those are the three components that go together to make it a liability.
And the critics apply this in very different ways, various different combinations.
And in doing so, they face criticism from two different angles.
So these are the critics of world supervision that face these two different objections.
On the one hand, people have argued that the liability view would be too restrictive.
It would be impossible to fight any wars if we were confined to targeting only the libel because we simply cannot know enough about our adversaries.
And our weapons are not sufficiently discriminating to pick out the libel from them alone.
If we were permitted to fight only morally curveballs that involve no intentional violation of rights,
then it would in practice not be permitted to fight. This is why I call this the contingent pacifist objection,
because it concedes that in theory there might be a way of fighting justified war and in practice is never going to occur.
So it's a matter of contingent fact we ought to be pacifists from the other side.
Critics can challenge that the liability here can be too permissive, allowing combatants to intentionally target vulnerable non-combatants.
That's because posing a threat isn't necessary for liability, so simply a virtue of their responsibility.
Non-Combatants might come liable to attack. Now, another word, and I've argued that these two objections are fundamentally connected.
The as the revisionists lower the bar for liability and as opposed to the contention pacifist
objection and to render all the combatants who are going to kill alive or be killed,
they render themselves more vulnerable to the second objection about non-combatant immunity.
Because if you lower the bar for liability to show that all combatants are going to be liable,
you don't find that many more non-combatants are going to be liable as well. But if you raise it so the non-combatants aren't going to be liable,
you return yourself to the problem that not all the combatants are going to be liable.
And you can't discriminate between.
So the continued pacifist objection and the no compatibility deduction form a sort of dilemma for the fuller revisionists.
Now, one way that they respond to these two objections is by invoking the distinction between the morality and the law of war.
They argue that these two objections might be good reasons not to implement their view in the laws of war,
but they do not undermine the kinds of wars underlying morality.
So what I'm going to do in this paper is first to summarise the most fully developed version of this argument,
and then I'm going to criticise it, and then I'm going to ask what I what the relationship between Moore's Law and its morality should be.
So I call this move it into law and then this section I'm going to talk about what the health law does, how it works in the revision.
It's quite a simple idea. And people are. Sometimes I choose to do so.
Other times I do so by mistake or accident, for example, because I lack important information.
This predictable wrongdoing shouldn't go through a lot of reasons,
but it might be relevant to choosing our laws just as the most prominent version of this view is espoused by Jeff, my mom.
And I'm doing a sort of redux of his of his arguments towards it.
It's also been a source of being mentioned in passing by several other division
and stuff like that so far and of throw and somehow I can deploy tone code.
It follows that at one point. So it's a fairly common point of reference for them without often being fully developed.
So this version by Jeff is kind of the, the only real attempt to really put some meat on the bones.
So that's what I'm kind of working from. So in the context of war, we have two causes of predictable non-compliance that are particularly troubling.
First, there is the lack of important information and the combatant status in particular.
Whether that side is satisfied is a and whether this particular operation in which they're engaged is as necessary,
whether it's proportionately conducive to their right and whether their targets are liable to be killed.
These are all very complex and urgent questions because answers will depend on ambiguous, often unavailable information.
So the serious epistemic short that that issue of voluntary non-compliance,
voluntary obviously will presuppose a somewhat fundamental that's kind of what starts in the first place.
But that aside, we know that whatever rules or principles establish for one side will likely be arrogated to themselves by the other side.
So if we if we grant the combatants a certain set of permissions, you can but will take those commission marks on them as well.
They're not going to voluntarily adhere to a more restrictive set of rules.
And we just know that this is the way people will behave because it's predictable wrongdoing.
Now, revisionist denial of its predictable non-compliance is relevant to the morality of war.
They argue that the epistemic shortfall might make acting morally difficult, but that's nothing new.
And doing the right thing is often followed. If we're also giving full information, then you'll find even when that information is incomplete,
we might be excused for failing to do something similarly that others will abuse our principles.
There's no argument against them as principles,
but these are both appropriate work they to be when we're devising what the law should be, if people will routinely disregard the law,
or if it makes demands that can't possibly be achieved, that will be regarded as irrelevant or unfair,
unrealistic, and it will lose its capacity to guide action.
So if you think the law has any purpose, then we should encourage it to have.
We should we should frame the laws so they take these elements of predictable non-compliance into account.
And on this basis, revisionists argue that morality and law should come apart,
that a combatant equality and non-combatant immunity lacks substantial foundations and moral principle,
that they might be justified as laws combating inequality.
Because if we had asymmetrical laws of war, so laws of war which gave admissions to the Dutch combatants, which they denied to the combatants,
and these laws would be unworkable because of uncertainty over who's on the job side
and the question of who is liable to be killed or render impossible to enforce.
And any commissions that we grant to the just psychiatric combatants would be abused by the new combatants as well,
either because they believe themselves to be justified or simply unscrupulously.
So since we know that any asymmetrical laws would have those effects, we have to introduce capacity equality.
So there's a legal justification for even if there's not a moral justification, and the same sort of argument goes for justify non-combatant immunity.
And even if it's true, morally speaking, but non-combatants can sometimes be liable to be killed.
A law that is enshrined as permission for combatants would inevitably be abused by new combatants,
as well as being abused by Jacob Buckley's in other circumstances when they shouldn't take advantage of it.
So we need to have a blanket provisional authority non-combatants to forestall this sort of abuse.
So this means that we can answer the contention pacifism, the notion that community injunctions in this way we can say,
yes, these are salient, practical concerns and it would be difficult to implement the revisionists liability.
But is pragmatic concerns and also what our fundamental moral reasons are in war,
the fact that the principle is abused or not to follow doesn't make it falls.
But they are relevant to the laws of war and those of or should be designed to taking into account.
So in practice, soldiers and states don't have to worry about being paralysed by an injunction to kill only the reliable.
The fact of the matter is that many difficulties, I'm told, with a predictable voluntary non-compliance.
This means that we have to retain combatants quality. The sort of.
Have a legal right to kill even the allowable combatants. Okay.
So they don't need to worry about adhering to the liability in practice because it's too complex and it will be abused anyway.
So all they need to do is follow the laws of war, which grant them math and equality.
And the same sort of argument goes for non-combatant immunity. And we don't need to worry.
The non-combatants are going to be especially vulnerable if we endorse the revisionist liability view, because in practice,
the laws of war will enforce a strict prohibition on targeting non-combatants, even loved ones, which is grounded in these sort of pragmatic concerns.
So even though there's no fundamental moral grounding for non-combatant community level, more principle at the level of law justified.
Okay, so that's the penalty law. And I'm going to turn to critique.
This is Section three. Why should we obey the laws of war? Now,
this appears a law can ameliorate the impossible practical implications of the liability you only had on
solving the kinds of when and why soldiers should obey the law if it conflicts with their moral reasons.
If they have no such encounter, soldiers simply ought to do what they have no small reason to do.
Then what the law says seems to be irrelevant on, and if so, just simply ought to do what the law tells you to do.
Then one could reasonably argue that all this stuff about the morality of war is wrong.
So forget stop talking about the morality of war. It doesn't affect the practice than the fact it's not happening.
I think we should just focus on the laws of war.
So there's a real contention and not only there to find his way of retaining the significance of the morality of law of war,
but at the same time giving the appeal of the law some purchase by saying that legal reasons can sometimes override more reasons.
And now, again, despite the popularity of this theoretical move, that sadly very little material on this question.
Again, Jeff, is the person who's sort of developed it first.
So any any version of this appeals law is going to have to tell us when and why our legal reasons can override our
moral reasons and when we ought to obey the law rather than what property tells us and why that should be the case.
So Jeff argues on the question of when we should distinguish between moral and legal permissions, prohibitions and requirements of the requirements.
And his argument is the moral requirements and prohibitions of Trump legal prohibitions and permissions.
But the legal prohibitions will trump moral permissions.
He doesn't say a lot about clashes between legal requirements and moral permissions and prohibitions.
Now comes the implications of that. And the second, on the question of why, the other two arguments for a duty to obey the law of armed conflict.
The first is that combatants should be reluctant to give their individual judgement priority over the law.
The law has been designed in part precisely to obviate the need for resort to individual
moral judgements in conditions that are highly conducive to rational reflection.
The second argues for our presently duty to obey the law grounded in the fact that disobedience will lead to further breaches by others.
So I'm going to look at the when in the in time as my first thought on the when question is that this ordering
of reasons renders the appeal of the law ineffectual as a response to the contingent pacifist objection,
though it might work for the non-combatant immunity objection. So if moral prohibitions trump legal provisions,
then the prohibition on killing the non liable trumps the legal permission to kill
enemy combatants and soldiers shouldn't kill unless they know longer have to be liable,
since they often can't know that they ought not to fight. And we end up being pacifists in practice.
So that says moral prohibitions trumped legal provisions, which is what the law says they do.
And it seems like any plausible position that now might be better match the fate of the law with the non-combatant immunity objection.
But this is going to depend on whether soldiers are morally committed or required to kill low level non-combatants.
And again, my man argued that moral requirements override legal reasons, but the moral commissions can be overridden by a legal new prohibition.
So if I were committed to killing alive or battered, to kill alive or non-combatant,
and then if it were primarily prohibited by the law, I ought not to do it on this account.
And whereas, if I'm required to do it, the moral climate can override the legal profession.
So a lot hangs on whether soldiers in war are required to do the killing they do and whether they may be committed from the perspective of morality.
And I think the combatants are often going to be morally required to kill in war because they're going to have strong,
positive reasons for actions grounded in natural, contractual and robust duties to protect their CO citizens, their comrades in the country.
If I'm right, then this moral requirement will trump the legal prohibition.
And so again, the practical implications of the revisionists liability if you.
Unsatisfied by the appeals. Look. Well, let's suppose, just for the sake of argument.
More charitably, the Jacobson's were merely primitive, not required to kill lovely enemy combatants.
So no combatants from the side that love justification resort to war.
If the non-combatants are liable to be killed, then I suppose to say the day combatants must have a very powerful interest in killing them.
It must be to save their own lives, to save the lives of their comrades, or to otherwise advance their justified aims.
This brings us now to the wide questions, because if they feel the law is going to work against the non-combatants in its abduction,
we're going to need a compelling argument for a very strong duty to obey the law, even at such great cost.
You have to think about how many duties there are that can be imposed on people that we think people will face,
which require them to sacrifice their own lives.
And advocates of the liability here more often for have been rather sceptical about the notion of duty to require that degree of sacrifice.
And you've got to remember as well that it's the duty to obey the law at the cost of one's own life,
even when killing the liable non-combatant in this case is, I suppose,
aside permissible because he's liable to be denied a morally permissible action to save your own life,
sacrificing your life because of your duty to obey the law.
So there's a very, very heavy burden of proof here.
We need some really powerful arguments to explain why it is we ought to obey the law in such a circumstance.
Now, the few ideas that might advance the first one is this idea of the law providing protected reasons, whatever the principles, protected reasons.
These are reasons to do not consider other reasons. So we should obey the law.
Because if we obey the law without considering a claim for an individual judgement,
then in the long run we'll actually find that we better for reasons that apply to us.
And that doesn't seem plausible, I mean, at all in this case, firstly, because it's explicit that the law diverges from our moral reasons.
So it's somewhat counterintuitive to say that even though the law diverges from a law reasons, it will better enable us to exclude them.
It's not completely impossible. It's not contradictory, but it's certainly somewhat of a tension.
But the real problem here is that this sort of argument, for protected reasons, can only work if it's exceptionalist.
If the law always if it should always obey the law without regard to specific individual judgements in individual case, then that's fine.
But if there are some exceptions that acknowledge exceptions to this one,
we ought to appeal for other reasons, and they do override of duty to obey the law.
Then we have to examine every case to see whether it is one of these exceptions.
So this means that in every case we are paying for an individual judgement.
So the purpose of the having the ultimate protected reasons argument to alleviate the appeal to individual
judgement that's defensive and because we have to see in each case whether this is one of the exceptions.
So that argument is a non-starter essentially. And the second one I think is going to be stronger than the first.
This is a different structure of argument.
It's not to say the law gives us reasons not to obey or reason not to regard or to think, to think through our other reasons.
It says you have a specific reason to to obey the law itself and other represents person's duty to obey the law,
which is very familiar from the strong political obligation in political theory.
Now, another argument is essentially that disobeying the law in any given instance,
even if it's justified, will lead to further disobedience by others, which would be unjustified.
Okay. So that's the basic notion.
And again, it's quite a familiar argument against civil disobedience, for example, and unfortunately, it is importantly complete.
The first is incomplete in the sense that this isn't going to provide, for example,
full respect for non-combatant immunity in circumstances where there won't be any such consequences.
And so if you if you're going to kill non-combatants and nobody's even know about it,
or if it's not going to really get at your side or the other side has no capacity to retaliate.
If there's this is some standard arguments against consequentialist justifications for non-combatant immunity,
if those consequences don't apply in any given situation than non-violence, have no protection.
And that's the worry. The second incompleteness is normative.
The argument lacks some important normative support specifically and is an additional kind of normative premise,
which is the idea that if if I kill someone who is liable and other people in some sense what other people kill
people are not allowable in some way as a response to what I'm doing in some way that can be caused by what I do.
And I'm not responsible for their voluntary wrongdoing.
And I was a fact that into my assessment of my action and those consequences can.
Override my right to protect myself in this circumstance.
So this is a very sort of strong idea that of responsibility for the wrongful agency of others.
And I'm well, whatever is merit is kind of intrinsically it seems extremely it seems greatly in tension with the revisionist view.
First of all, it is basically incorporating an extra more reason we're not really talking about in the powers of the law now,
we're really talking about in the field of consequences.
And we're saying the fact that an act is intrinsically, morally permissible isn't sufficient to determine actually permissible for you to do it.
We have to have regard to the consequences, and you can run the whole argument without any reference to the law at all.
You can say, if I killed another non-combatants, now that means other people killing.
If I collide with non-combatants now it's going to lead to other people carrying on violence in future.
And I'm responsible to some degree for a lot of that political wrongdoing on that part.
So I will not to protect myself in this case, even at the cost of my life.
Now, there needs to be no reference to whatsoever in that. So the first thing is that this shows we've had some sort of serious mis selling here.
This is the argument that's doing the work. And this isn't, in fact, in the fields, lawyers in the field consequences.
And what has been called the morality of war is really just a subset of the morally wrong reasons.
But this these additional consequentialist reasons are playing a determining role.
And I have all sorts of occasions in the lead across to other areas of the debate.
And there other specific inconsistencies.
And revisionists tend to be very dismissive of consequences of speculation and the general place far more important and
far more emphasis on the importance of avoiding wrongdoing by oneself rather than preventing wrongdoing by others,
and their insistence on the paramount importance of individual rights.
And I think this last point is particularly important by David Barton,
who can save his life by killing allowable non-compliance as a right to do so on the liability of the revisionist liability of you.
It's grounded in his right to life and with that.
So I guess that's way. I do think that you consistently demand that you forgo the exercise of this right and sacrifice himself because
of the speculations about the possible consequences of his actions for particular wrongdoing by others.
And you thought this seems to be directly contradictory to the nice ethical position that sets up the appeals
and all the other people's predictable voluntary wrongdoing should not affect one or more reasons not to be.
Now, if David Martin never confronted situations where they can save lives or advance
the just cause by harming non-combatants more than the laws of war alone,
then this might be a purely theoretical worry. Unfortunately for the victims, no, I don't think this is the case in contemporary urban warfare.
Non-Combatants contribute to threats to combatants without directly participating in hostilities.
For example, by knowingly or unwittingly revealing their position relative and making buttons or concealing information about potential threats.
Moreover, the law doesn't only prevent combatants from targeting reliable combatants.
It also found that they minimise harm to non-combatants with incidental 13th amendment protections.
This imperative removes options that would reduce risks to join combatants in order to protect vulnerable, you know, combatants.
If they do, non-combatants are, in fact liable to be killed. Then like live with you combatants.
Answer That should not need to be minimised and Jacobson should be able to reduce the risk in these ways.
Okay, so the point here is that if we do think that non-combatants are liable, then you can have an outcome that policy of force protection.
Because the point is you don't have to treat. The civilians are going to be killed collaterally as a as a regrettable cost.
You treat them just in the same way as you treat legal enemy combatants.
And so even if there aren't many circumstances where you can gain a significant military advantage by directly targeting non-combatants,
and there's some dispute on that. But even if there weren't those circumstances, I think it's fairly,
fairly obvious that we can save lives of our own forces by imposing greater risks on enemy non-combatants on the enemy side,
if we can see them as being liable to attack in the same way as enemy combatants, then we have a much more much greater scope in which to do that.
So it's those are serious practical, both this problem.
Okay. The next section I'm going to run through fairly briefly and this is more of the kind of
philosophical point about the structure of normative thinking that's proposed by the appeals court.
And the issue here really is the world distinguishing between abstract principles and applied principles.
And this is just a continuum. It's just that here is the abstract principles that are devised or defended in abstraction from other moral and.
Moral facts apply principles developed by taking up principles, combining them with other moral principles with other facts.
Okay. And as they continue, it's possible that all four principles of some degree apply.
And to some degree, abstract. And you may even sort of draw your line in various different points in terms of where you think you should go,
as far as how abstract you should get, how far you should go. Okay.
I think we can usefully set up and continue. What I think the appeal to law does is it affects it effectively elides the
category of applied moral principles and inserts in its place in health law,
and so says normative guidance in practical circumstances affected by the the
uncertainty and a little known advance that we get in the context of war.
Our normative resources are limited to appealing to the law,
and following the law of morality can only give us abstract means which can't be which which are in effect irrelevant to these circumstances.
And so on. This view is virtually feasible, extensively reasonable to say, well, in a war we ought only to kill the non-viable.
As a matter of fact, it turns out that we're never going to be able to do that.
But it's okay because we can just follow the laws of war, because the laws of war are designed to deal with these sorts of practical problems.
Abstract No principles don't have to know what it is that lives in that whole
area of applied moral principles and suggests that in those circumstances,
in the context of war and we don't have available to us the questions I think we do have available to us,
which is when the law prohibits or requires a given action, we can always ask more of it.
You should obey the law. And as always, if the question is, what should I do?
What the law allows me to do it, is it morally right to do what the laws tell me to do?
There's always going to be this role of applied moral principle,
distinct from the abstract principles that are formulated on the basis of artificial assumptions like full information.
So I think that the line in that is a grave mistake.
And what's more, I think that even if you elided explicitly, there's always an implicit applied account, I say,
and I think that when we infer, we can infer an implicit applied morality of war from the revisionist view.
And basically it goes like this. There's two possibilities.
And the first possibility, let's suppose that and as I think is the case in any given conflict,
many of the combatants in the day combatants will intentionally kill, will not be liable to be killed, and will retain their rights to life.
That's what I think is the case. No, no one ever thinks.
Well, this means we know in advance of fighting that we will intentionally kill non-viable people we can't win without doing so,
so it can only be justified for us to play if there are other reasons that are going to override the reasons not to violate those rights.
Okay. So we can only be justified only if we have these other overriding reasons.
Now, I think it's a there a business to do with the possible exception of that.
So far I'm very sceptical about the idea that we can justifiably override the rights to life, intentionally override people's rights for life.
They think that these sort of lesser evil justifications are available only in extremely rare,
unusual circumstances, definitely not in every kind of ordinary world.
So this leads us to a very strong conclusion, which is that we ought not to fight at all if we can't fight without killing non-viable people.
And we know that we can't justify killing a lot of people.
On justified intentional violations of right now. We ought not to fight that.
So in practice that it does lead us directly towards pacifism. And that's the applied morality that you infer from the in livestock law principles.
Now, that's an assumption that the new combatants, some of them, will not be liable to be killed.
Now, what about if we drop that assumption?
What if we suppose that magically we can produce this Goldilocks criterion of liability, which is just right?
So you got just the combatants that you want to kill reliable and the non-combatants you don't want to be able to kill are not going to be liable.
So this is perfectly, perfectly balanced. The question of liability.
Suppose we have that. Well, then, then you've still got a serious problem, because as everybody agrees, in advance of any given conflict,
it's there's always great uncertainty about whether you're justified in resorting to war.
Okay. So this is the basic notion that these are problems in the circuit, but in the heat of the moment, you sometimes way is somewhat uncertain.
All right. The fourth is that I consider how we should make our choices.
From the facts and the perspective if we turn out to be if we try to lack Italian justification, I we cannot be unjustified.
Then everybody, everybody we kill on this. You will be will not be liable to be killed, right?
We'll be murdering every single person who is killed in the context of this war,
will be committing a spectacular wrongdoing and violating all of these rights intentionally.
And I think that if even if there's a small possibility that we're in the wrong the fact that the moral risk of doing so is so enormous,
the moral risk of killing all these people unjustifiably, in violation of their rights, is so enormous that we would be forced again towards pacifism,
towards not fighting, unless we are absolutely 100% certain that we're justified in fighting.
And I think that in practice, again, there can be very few situations that are just not clear cut.
There's always going to be this possibility during the Rome.
And insofar as there's a possibility, the enormity of the wrong that you would commit should determine that you are on the side of caution.
I mean, the title of a recent paper on provocative studies is Full of an accident.
Don't Know, Don't Kill. So again, I think that even if I'm wrong and all you combatants are liable to be killed.
The uncertainty over whether we're on the right side, whether we're the taken by force, is going to mean that we're still forced towards pacifism.
So what this means is that these abstract principles and they tend to look and feel and applied relative to the axis of war,
the direct substrate towards pacifism.
And if we are unhappy with that conclusion, if we take months of activism or if we think for other reasons pacifism evolves,
then we need to re-examine the abstract principles that we stand out from.
Need to re-examine the liability. My thought on this is that we should reject that.
I think that's a legal justification. I think that we can justify intentionally violating rights more readily than I think we can.
But either way, whether you set my inference from it or not,
the fact that the view leans towards pacifism in this way either casts doubt on the outside principles from which they start,
or requires us to endorse pacifism. So that's why my critique of the appeals law and its function in defending the revisionist view.
I'm just going to conclude by talking a little bit about what I think the relationship between morality in law and war should be.
I'm just going to briefly consider a couple of other positions.
Henry's and David Roland's takes on this.
Henry argues that the laws of war subtract the moral events, rules for war.
Insofar as they don't, we should change them to remedy this.
These rules, he thinks, and for far different from the morally justified rules that govern ordinary life.
Since war, the practice presupposes the level of intention with no parallels outside of war.
If there are going to be rules for war, if we're not simply to have laws altogether,
these rules have to be quite different from the rules that apply to conduct in ordinary life.
We can, and we perhaps ought not to eradicate the practice of warfare.
So we should instead endorse rules that minimise the suffering that it causes.
And Henry argues that these rules include the legal equality of combatants and the principle of non-combat immunity,
among the other constraints of use and by.
These exhaust the morality of war and Islam to conduct besides them is nothing the sort that includes two important propositions.
First, that the morally best laws for war should aim to minimise the suffering that war causes.
And second, that these laws exalts the morality of war. Each of these claims on its own is essentially the minimisation and exhaustion.
On the hand of each of these claims on its own is quite controversial, but that conjunction is surely false.
A combatant is fighting a war of territorial and aggression.
He realises that his fighting unjustifiably should not continue to fight in accordance with the laws of his fellow.
If he realises he's killing unjustifiably, he should stop.
The argument for the rules of war, taking the minimisation of suffering as our aim presupposes the practice of war.
Since we can't eradicate war, the argument goes the best rules would seek to minimise its calamitous implications.
But individuals are entitled to justify their own wrongdoing on the grounds that it is inevitable and so must be regulated rather than prescribed.
We address the laws of war to people in the third person, and I'm having to count them out like this since people will and justifiably fight.
The moral imperative is to limit the damage that they do. If we formulate this in the first person, we can see how it can't exhaust morality of war.
Since I will unjustifiably fight, the moral imperative is to limit the damage I do.
Right. Oh, if it doesn't work. Okay.
So David Rosen agrees with Henry second proposition and the exhaustion one, but he denies the first minimisation.
He argues instead that the morally based laws of war should be the precepts of his version of the liability view,
and that we should reject the traditional use and bellow in favour of laws that permit combatants to kill only those who are liable to be killed.
I has two objections to the minimisation proposition, which is actually shared with with Jeff.
So the first is it is based on unsubstantiated speculation about consequences such as the general objection to confidentiality as a method.
The second I'm going to look at more is that it wrongfully instrumentalize is the rights of nonliving jargon buttons.
And so it does this by saying that Jacob MATTHEWS, because I thought justifiably did not like you.
If we grant you compatriots the right to kill them, we're endorsing the violation of those combatants right for life.
Granting this right in order to minimise all suffering amounts to treating their right
to life as a resource that we can sacrifice in the pursuit of better overall outcomes.
And so he tries to home the point of an example.
Imagine a society in which an ethnic minority is victimised, culminating in the annual sacrifice of one member of the group.
The authorities have tried to prevent the sacrifice, but in the years when they succeed, the minority suffers.
Stillbirths, abuse, including almost civil authorities,
then legalise the annual sacrifice in order to minimise the suffering caused by this ineradicable practice of minority victimisation.
Now clearly the argument, for example, pumps some strong intuitions over the clearly unjustified law and analogies superficially appropriate.
Like I said,
there's a sense in which we're trading off the rights of life and not allowing which open markets to ensure fewer rights violations overall.
But I'm not sure whether the argument really goes through. I think we can see this if we consider the alternative proposed by.
He wants to implement the liability in the laws of war. And in doing so, he proposes a position of restricted asymmetry.
So he calls it and it denies any fighting rights. So you combatants and it restricts take combatants to targeting only enemy combatants.
Now, setting aside the merits or flaws of this proposal as a practice.
The reason by which you get through it is mistaken because it presupposes that all of those
on the side that satisfied use the term that there is one are not likely to be killed,
whereas all you combatants are. And this assumption is untenable.
Some day combatants will be liable. Some you know, you combatants will not endorsing simply a asymmetry is going to instrumentalize the rights of non
liable you combatants in order to guarantee combatants the possibility of pursuing their cause.
Again, if the laws of war are going to mirror the liability of you.
That can't be simply asymmetrical. They have to be completely individuated to the specific agent and to this specific act.
And this would mean that the laws of war either extraordinarily complex,
specifying down to the minor detail what types of killing was permissible or that have to be inordinately vague.
I'm simply saying kill only the little, but in either way, the justice of all that we have no critical but impossible for.
So the only way to ensure compliance with laws like those would be, again, to endorse pacifism.
I think that leads us to the biggest analogy with this category.
For example, if you outlaw the sacrifice, you know, preventing others from justifiably using force to defend things of real value.
But if we implement the liability view in the laws of war leading to essentially enforcing pacifism, then we are outlawing war.
So if they were justified uses of force and that's a serious problem.
So both rather than issues, greater congruence between the laws of rights, important things,
vital area that is predictable wrong doing too great a role in determining war's morality while
is too indifferent to the epistemic difficulties of war and the subtlety of liability accounts.
I mean theoretically committed to respecting broad significance and endorsing pacifism.
But one of the surely by the laws and institutions have to take some forms of
non-compliance is paramount to act in ways that are moral reasons should not.
And the laws of war shouldn't try to directly deal binding on moral reasons too much.
The laws of our saving the laws do exactly for moral reasons.
But I do think that we should have greater congruence than McMahon affirms between the RAF and laws of war.
Specifically, I think the legal equality does sometimes reflect moral equality,
and I think there are principled foundations for non-combatant immunity.
And more generally, I think that both the morality and the laws of use and value can be satisfied by both.
You can. Back in a moment about the combatants in principle, but there are a couple of minutes left.
So just run through the script. And I mean, the idea of the legal equality of combatants is really grounded in that last point.
I think that it is radically individuated to the time as to whether you're justified in fighting.
It can't simply be read off from the fact that you're not satisfied. It's about since I think that in fact,
you're only justified in fighting for the rights violations you're going to commit overridden by some other moral reasons.
It's perfectly conceivable that that might happen for somebody who is on the unjust side of the war.
So you might be defending only his comrades what, if anything, on his noncombat pacifism, and you might be justified in fighting in that conflict.
So my point is that if if we were going to have the law track morality.
Exactly, it would have to be far too complex and individuated to be practicable as a form of law.
So in that sense, we ought to have equality between these two things.
If it was equal prohibition, then it would be ignored, if not more so.
And something like the current system does seem to be more comfortable.
Although I would say that the current laws of war enshrine of right for combatants to fight.
And they specifically say that if it satisfies those criteria,
if you to qualify for combatant status, you do have a right to fight, which means the right to kill.
And if you're on the other side, that means the law is enshrined a right to kill unjustifiably.
And I think that's untenable. But I think it can be easily solved.
We can decriminalise we can have some of these decriminalised without granting a right to do.
I guess that can be and there can be impunity for fighting an unjust war without having to say you have a right to do it,
mitigation and the right to kill unjustifiably. So specifically, I think you have Article 43 and 44 of the first edition of protocol.
I mean, the purpose of granting combatants that right to fight is to ensure that our communities
and children are not going to be punished if they're captured by the other side.
And I think you can perfectly well strip the argument for impunity away from granting I'm just talking about a right to kill.
And so I think as a combatant, legal equality is partly grounded in moral principle and partly in practicality, not compatibility.
I think it is grounded in moral principle. And if I think it's probably in a multitude of overlapping moral arguments,
the one that I'm focusing on most at the moment is the distinctive vulnerability of non-combatants.
But I'm going to just skip over that. I can talk about it more afterwards. I wrote a paper specifically on that topic.
So I think there are good grounds for having the principles on combat community that aren't simply consequences.
My last thought is just that one of the reasons why the revision is so often denied that the legal cause of combatants
can have moral foundations is sends out a view that you combatants can't possibly have to fight this imbalance.
They can't fight discriminatory because discrimination requires killing only reliable.
So it's not going to satisfy criterion testing for whatnot and so on.
Now my thought and that is that they return to the principles of use and valour
specifying necessary and sufficient conditions that justify killing in war.
And I think that's a mistake. I think the criterion is in. But I didn't find any necessary conditions to justify fighting.
And in that sense, whether you're a GI combatant or you combatant, you can satisfy these necessary conditions.
It doesn't mean that you're justified in fighting. All right. That will depend on appeals to you.
The purpose of serving by fighting and the actual principles of use and below
and beyond the necessary conditions can be met and satisfied by both sides.
Okay, so I've run out of time and I'll leave it there and I look forward to your questions.