just and unjust wars: casuistry and the boundaries of the moral world

Just and Unjust Wars:Casuistry and the Boundaries of the Moral World

Joseph Boyle

The year 1977 saw the publication of two important books of moralphilosophy: Michael Walzer’s Just and Unjust Wars’ and Alan

Donagan’s The Theory of Morality.z Using Donagan’s text as a coun-terpoint to Walzer’s text, my aim is to throw light on Walzer’s methods of

moral analysis, thereby contributing to the understanding of how and to whatends practical moral philosophy should be conducted.

Common Morality, the Moral World, and the Jus Gentium

Just and Unjust Wars and The Theory of Morali~ were welcomed when they

appeared and have been admired ever since, especially by those moralists

whom I would characterize as “traditional.” Traditional moralists are not

necessarily politically or socially conservative, and I do not intend to suggestthat Walzer, Donagan, or those who welcomed their works are conservative.

Rather, I understand a traditional moralist to be one who takes seriously a cer-

tain body of moral doctrine and does this in part by approaching that doctrine

on its own terms. To clarify, I will spell out each part of this characterization.First, I use the term “doctrine” because traditional moralists deal with a set

of realities that are essentially propositional. Whether morality is articulated

in codes, customs, and legislation or exists inarticulately in people’s practices,

responses, and affections, it can be formulated and expressed in propositionalform as statements and judgments. Whatever the final story may be about the

semantics and underlying ontology of moral statements, they plainly do have

logical implications, and people do argue rationally both about these impli-

cations and about the correctness of the statements themselves. As Walzer

shows, primarily by a multitude of examples of moral discourse concerning

war, moral doctrine comprises a significant part of the social world. What he

calls “the moral world” is not easily avoided, even by the resolutely immoral,

realist, or manipulative: it is the presupposition of our hypocrisies, manipula-

‘Furtherreferencesto thiswork will indicate pages in parentheses within the text.2Alan Donagan, The Theory of Morality (Chicago and London: University of Chicago Press, 1977).

84 ETHICS & INTERNATIONAL AFFAIRS 1997 Volume 11

tion, and rationalization, and the common framework which makes possible

even those moral debates we cannot settle (p. 12),

Claims about the moral world immediately provoke questions about

whether such a thing truly exists. Can any body of moral doctrine be detached

from the communities in which it functions or from the traditions of inquiryin which it is articulated? And can any body of moral doctrine so detachedreasonably be regarded as universal or unqualifiedly traditional? Both Walzerand Donagan appear to have thought so-at least twenty years ago.

The idea of common morality Donagan developed is quite different fromthe more recent idea of common-sense morality created by consequentkdists to

provide a target for their criticisms. Donagan’s idea is that there is a moral lawwhich (1) binds all rational creatures and is knowable by them by virtue of

their rationality and (2) can be understood through what he calls the Hebrew-

Christian tradition. Within that tradition the propositional content of the morallaw can be established, although controversy on matters of detail is to be

expected. The theoretical construction of the tradition into an elaborated moral

theory based on a fundamental principle also has precedents within that tradi-’tion. Donagan maintains that this fundamental principle is best understood as

the requirement that rational creatures always be respected as ends in them-selves and never be used as mere means to an end. This plainly is one of

Kant’s formulations of the categorical imperative. Donagan’s project is toderive the precepts of common morality from his Kantian version of moral

principle, to defend the principle itself, and then to respond to the external and

internal objections to the moral system thus constructed.3

Consequently, what is common on Donagan’s account of common morality

turns out to be what is morally binding on all people, assuming that Kantianprinciples and their application by way of moral reasoning are correct, not

what all or most accept as morally binding. Similarly, what is essentially

traditional about morality on this account is the agreement among members of

Jewish and Christian communities concerning the meanings of terms essential

for deriving moral precepts, most importantly the meaning of the notion ofrespecting rational nature as an end in itself. It is not clear how particularized

and idiosyncratic such communities would have to become before they wouldcease to use such moral concepts in ways that would be intelligible to mem-

bers of other Jewish and Christian communities. But their moral understand-

ings could hardly be said to constitute anything like “the moral tradition” with-out qualification.

3 Donagan, 26-32,

Casuistiy and the Boundaries of the Moral World 85

Walzer’s moral world has a lot in common with Donagan’s common mor-

ality. Their prescriptive content is very similar, and Donagan and Walzer

recognize theoretical debts to the same people—for example, the great

scholastic theologians. But the idea of the moral world and its function in

Walzer’s argument is importantly different from Donagan’s common morality.

In terms of an analogy of Walzer’s (p. xv), Donagan is interested in the sound-ness of the substructure of morality and in the way the parts of the superstruc-

ture are supported by the foundation.

While Walzer does not reject concerns like these, he expresses ignorance

about the foundations of ethics and notes the apparently unending controversy

about such matters. For his part Walzer is interested in “a tour of the rooms,so to speak, a discussion of architectural principles.” Plainly, he thinks (and

indeed substantially succeeds in demonstrating) that there is much to learn

from his tour of the rooms and that knowledge can be gained without settling

the deep issues of moral theory.

According to Walzer, then, there is a body of moral doctrine that is widelyaccessible, that profoundly influences even those who would prefer not to

notice it, and that exists independently of a particular moral theory or an

attachment to a particular moral community. While he does not claim that

everyone accepts or should accept the entirety of this body of moral doctrine,

he seems to think that it is hard for most people to avoid accepting part of it,

for reasons already mentioned: hypocrisy and rationalization make no sense

except against an accepted background of moral norms whose prescriptive

force is acknowledged (p. 44).Indeed, for two reasons it seems essential to Walzer’s conception of the

moral world that there be a developing consensus over time and across com-munities about much of its prescriptive content. First, this consensus is what

gives the moral world a degree of objectivity—at least in relation to partisancommitments, convictions, and biases. These commitments can be wholly ele-

ments of ourselves, but the consensus is part of the social reality with which

we must contend. Second, this consensus is what makes his “tour of the

rooms” approach to the moral world more practical than a more foundational

approach like Donagan’s. As the theoretical debates perhaps endlessly unfold,

ageemen\abbbthe mb~a\ accepakihty of some po~’cles, aci~ons, and omis-

sions is possible, and that could make a profound moral difference to the lives

of individuals and their communities. Such agreements might lead a commu-

nity or a potential soldier not to fight or to fight only in accord with significant

moral constraints. These effects would likely both save lives and, given what

we know about the conduct of warfare, forestall murders.

86 ETHICS & INTERNATIONAL AFFAIRS 1997 Volume l]

It seems to me that there k a moral world such as Walzer describes. The

moral controversies discussed in Just and Unjust Wars and their sources in lit-

erature, history, and the law are hardly intelligible without the existence of

such a world. Another domain of this moral world is revealed, for example, in

the conduct of moral discourse about decisions within the modern health-care

system. But the relatively recent arrival of sustained moral discourse amongmany moral communities in this context and the comparative homogeneity ofthe values shaping modern health care make it harder to show that the moraldiscourse of modern health care has the universality Walzer reveals concern-

ing the ethics of warfare.A noncognitivist or otherwise reductionist account of this world surely

remains possible, but nonetheless the moral world is there. It can be explainedor explained away, justified or debunked, but it is part of social life and has

great normative significance.

Walzer’s conception of the moral world receives some conf@nation andillumination in the use of the idea of the jus gentiwn by the great ‘scholastic

theologians of the sixteenth and seventeenth centuries. The jus gentium is

comprised of the common moral customs of humankind. This customary,

shared morality essentially includes a body of moral doctrine. This doctrine ispart of the jus gentium because of its widespread acceptance, and not because

of its correct derivation from moral principle. This agreement was reasonably

taken as evidence that the jus gentium generally reflects the moral truth based

upon the natural law.

But the difference between the jus gentium as a body of customary moralbelief and the natural law as a body of moral truth based on moral principle is

practically important. As a positive social reality thejus gentiunz has a differ-

ent kind of objectivity than can be achieved by argumentation that promises toget closer to the moral truth of things. And thus just as Walzer’s exploration

of the moral world can achieve results moral theory cannot, so the explorationof the jus gentium was thought to promise advantages over the natural law—

to provide, for example, plausibly binding customary law governing themutual obligations of polities with respect to such things as the treatment of

each others’ citizens and the provision of safe harbor. Reasoning from moral

principles (even if, as the scholastics supposed, there was wide agreement

about them and their correct application) can hardly settle such matters in

detail, and so established custom generally seems the appropriate, fair stan-

dard.

1 noted at the start that traditional moralists are those who study a certain

body of moral doctrine in a particular way. The analysis so far indicates that

Casuistry and the Boundaries of the Moral World 87

the body of doctrine studied can be understood in two quite different ways: as

a set of moral truths shown to be such by derivation from moral principle andas a body of moral belief that is more or less widely accepted over time and

from community to community. Donagan primarily studies the former, Walzer

the latter.

For the moralist the study of morality, however it is conceived, is not

simply descriptive and explanatory, but normative as well. Walzer’s “tour ofthe rooms” is not undertaken for speculative or aesthetic purposes but to pro-

vide guidance for constructing rooms yet to be conceived and for straightening

out rooms that have become a mess. As he notes (p. xvi), the proper method

for this investigation is casuistic—that is, one should reason about difficultmoral cases without appeal to general moral principles. The kind of moral rea-

soning Walzer seems to have in mind is the consideration of cases-examples

of morally problematic decisions—in sufficient detail so as to reveal their mor-ally relevant features in ways that allow the drawing of inferences to and from

other more or less similar cases. With this method one can arrive at moraljudgments about the more complex and obscure cases by reference to the

simpler and more paradigmatic.

The development of what Walzer calls the legalist paradigm for the con-

duct of international interactions by the use of the domestic analogy is a

perspicuous example of the method (pp. 58–63). One starts with the agreed-

upon steps that may be taken to stop and punish crime within a polity, and then

makes the adjustments in moral judgment required by the differences between

international and domestic society; the result is that the initially perplexing

norms governing international society become intelligible, at least presump-tively justified, and the objects of consensus.

The derivation of precepts from moral principle makes use of reasoning

with important similarities to the kind of casuistry Walzer uses. The deriva-

tion of precepts from principle requires a careful specification of actions and

their morally relevant features.4 Thus, the task of moral reasoning is onlybegun, not finished, by indicating the moral principle—for example, the

requirement that rational persons be respected as ends in themselves. The

more complex part of the reasoning is clarifying what makes actions of one

[llld 01 ‘XNXh81 compa(~liem incompat~ble with the moral principle.

Intuitively, slavery, rape, and murder fail to respect rational nature, but intui-

tions fail and informal conceptual clarification is often needed, especially in

hard cases. Thus, although to kill a human is generally to fail to respect his orher rational nature, killing in self-defense is not so easily judged, nor are capi-

‘ Donagan, 6G74


tal punishment and some kinds of suicides The informal reasoning needed to

determine in detail what does and does not respect rational nature is essentially

casuistic.Thus, the main difference between Walzer’s casuistry and the derivation of

precepts as carried out by moralists in the tradition represented by Donagan isthat in the latter the moral consideration of actions is always controlled by

explicitly articulated moral principles. Consequent y, this reasoning is not soimmediately contingent upon the moral features that emerge in the consider-

ation and comparison of specific cases.

Moral reasoning of the kind Donagan discusses and exhibits in The Theory

of Morality is largely absent in the first three parts of Just and Unjust Wars,

and appropriately so, since Walzer’s project is not to deal with the foundations

of ethics. As suggested, Walzer’s casuistic reasoning can serve to extend the

widely agreed-upon body of moral doctrine concerning warfare to difficult

and new situations. And when Walzer’s argument extends beyond the area onwhich the casuistry of the common moral world can throw light, his reasoning

is more like the projection and weighing of consequences than like Donagan’s

method of inquiring as to how actions of certain kinds are logically related to

moral principle.

Walzer’s casuistic reasoning certainly has precedents in the classical

sources of his moral world, and with the exception of Donagan’s traditional

method of deriving precepts from moral principle, the methodological alterna-

tives to Walzer’s approach would seem to be alien impositions upon the bodyof moral doctrine he explores.

The most plausible alternative method is consequentialism, which I under-

stand to be a method of moral reasoning which takes as morally decisive the

likelihood, judged from an impersonal, disinterested perspective, that the bene-fits of an action or policy for all affected by it will outweigh its harm. But as

Walzer notes, considerations of utility are subordinate within the common

moral world, which seems intuitively grounded in human rights (p. xv–xvi).

Of course, the relatively limited extent of consequentialist reasoning within the

common moral world does not exclude the possibility that the final justifica-

tion for the morality of that common social world is consequentialist. A social

arrangement in which considerations of how best to promote the good are con-strained by individual and group rights and other personal prerogatives isarguably an arrangement more likely to promote the good than one in which

such constraints are lacking. Plainly, such an “indirect” form of consequen-

‘ Donagan, 76-90.


tialism would allow for the importance of human rights and the casuistry

required for thinking about their implications.Indeed, it seems to me that human rights are less a theoretical justification

of the moral world than a part of that world. Agreements about rights arepossible and indeed exist in the presence of deep theoretical disagreements

about their justification. Thus, if there is a contemporary jus gentiwn, rightsare surely an important part of it. Practically minded consequentialists will

likely accept this and so reasonably will enter the moral world primarily ascasuists, saving calculation for the overall justification of the moral system and

perhaps some very extreme emergencies.

Another alternative to approaching the moral world casuistically is intui-tionism, by which I mean a method for arriving at moral judgment which

downplays the role of reasoning in favor of immediate perception or insightinto the moral features of a situation. The moral insight in question is not

necessarily part of the mental equipment of all people; rather; it is oftenregarded as a special ability achieved in the arduous development of virtue.Once virtue is developed, a citizen, politician, or soldier “just sees” the morally

correct solution to a difficult choice in warfare.

Although there are intuitionist elements in many versions of traditional

ethics, intuitionism appeals to something like perception at points where

casuistry invites and provides reasoning. As Walzer emphasizes, the moral

world is a world of discourse, of good and bad arguments, of emerging con-

sensus that some arguments are simply to be dismissed, that others do not yet

pass muster, and so on. Intuitionism gives no account of this aspect of the

moral world, and this is the aspect of the moral world that most resists expla-nation as an expression of individual or group feeling or of merely partisan

commitment (see pp. 13–20). By appealing to what is evident, at least to the

virtuous, intuitionism also frequently short circuits the argumentative dialectic

in which moral reasoning is tested and rationalization exposed.

In sum, Walzer’s casuistry, his tour of the rooms of the morality we share,

is sensible and justified as far as it goes.

The Limits of CasuistryThe power of Walzer’s approach lies in its capacity to generate practical agree-

ment that is plausibly connected to moral truth. Agreement on moral matters

is reached by starting with a body of moral doctrine that many and diverse

people accept and then moving carefully, in small steps, to more difficult cases.Plainly, neither the antecedent nor the hoped for future consensus guaran-

tees moral truth. But that is not a general objection to Walzer’s casuistry.


Walzer is aware that bias can affect even the common moral judgments of

enemies and strangers. But he trusts that the discourse which defines the moral

world will eventually unmask the rationalizations which infect it (pp. 44-45).

Thus, the permissive standard of the war convention and international law

in respect to sieges is rejected authoritatively by taking note of the Talmudic

law of sieges—a law which states, in effect, that besieged civilians have a right

to exit (p. 168). Perhaps there is not yet any consensus that the Talmudic law

is part of the jus gerztium, but the argument compels; it appeals to nothing

beyond the widely accepted elements of the moral world. Presumably, Wal-

zer’s point in engaging in casuistry of this kind is precisely that, because of the

coercive nature of moral argumentation, positions like that of the Talmud must

be accepted as part of the moral world, even if the consensus has not caught upwith the logic.

If, however, Walzer’s verdict on besieged civilians’ right to exit is plainly

justified by his method, some of his other judgments are not. To remain withsieges, for example, Walzer maintains that should a besieging army honor theright of besieged civilians to exit and should they decline the offer and remain,

they become legitimate objects of military attack: the offer of free exit turns all

those people who choose to remain in the city, or who are forced to remain,

even if they are still in their “proper and permanent abode,” into something

like a garrison; they have yielded their civilian rights (pp. 168-69). Here, Iwill argue, we are outside the consensus and the coercive power of its logic.

To see why, we must note Walzer’s belief that in forms of warfare closely

involving civilians, “the issue of coercion and consent takes precedence over

the issue of direction and indirection” (p. 169).

The issue of direction or indirection concerns how killing and other harms

to civilians are brought about, whether intentionally or as a side effect. In

other words, it concerns the application of the doctrine of the double effect to

the harming of civilians. This doctrine judges as morally permissible someactions which bring about as side effects harms it would be wrong to bring

about intentionally. As applied to the conduct of warfare, double effect worksin tandem with the prohibition against killing noncombatants to limit the

absolute application of the prohibition to the intentional killing of noncombat-ants and to permit some actions which are foreseen to bring about noncombat-

ant deaths.Two preliminary comments are in order concerning Walzer’s belief that

issues of coercion and consent are more fundamental than issues of intention.

First, one of the undoubted merits of Walzer’s work on the ethics of war is his

attention of the moral importance of the coercion and consent of soldiers and

civilians alike. These considerations play little role in classical just war theory.


Second, it is possible that the double-effect reasoning, which Walzer rele-gates to a secondary role, does not play as fundamental a role in common

moral thinking as the influence of Catholic just war theory and Catholic

bioethics might cause us to think. A moral theorist can argue that double-effect reasoning will be a part of the most compelling moral theory, but not all

moral theorists will agree. Donagan, for example, rejects double effect and

finds different rationales for making the moral distinctions which those influ-enced by the Catholic tradition would make by using double effect. Thus,

Donagan argues that noncombatants should not be targeted in military actions

“and that the deaths of noncombatants who are killed in direct attacks on mil-

itary installations are to be deemed accidental, on the ground that it is the

enemy’s fault they are there. ”b The practical lines drawn by the use of

Donagan’s notion will be similar or identical in most cases to those of double-

effect reasoning, but plainly the conceptual basis is different: “direct” is a

causal, not an intentional, notion, and “accidental” means simply that the fault

is not the agent’s.I conclude, therefore, that double effect has at best an ambiguous role in

the common moral world. Some of the moral differences double effect justi-

fies—for example, concerning the immunities of noncombatants—are deeply

embedded in that world, but double effect itself has no fixed position. The

reservations of so traditional a moralist as Donagan and the seemingly endlessdebates about how to justify its central ideas and apply them in practice sug-

gest tome that double effect is less part of the common moral world than it is

part of some theoretical accounts of that world. Consequently, Walzer’s favor-ing of considerations about consent and coercion over double effect is not itself

in conflict with such moral consensus as exists.That said, however, there remain two distinct moral considerations con-

cerning sieges: the consent of the civilians to be in the besieged place and the

requirement that the y not be targeted. Walzer’s reasoning for giving prece-

dence to the former seems to me to go beyond the consensus of the moralworld. For although as a civilian one can change one’s status to that of a sol-

dier, one cannot do this simply by an interior act of will, nor does it happen

simply because others might regard one’s actions as status-changing. For

one’s status as a civilian seems independent of one’s will and of much of what

one does, except insofar as one more or less voluntarily enters into hostile

activity. It is such action, part of what would verify an enemy’s belief that waris being made against him, that makes one a combatant. Something like my

characterization of the combatanthoncombatant distinction seems to underlie

‘ Donagan, 87,


the commonly accepted norm that prohibits harming “civilians,” despite thecomplexity of defining the term as warfare changes. Walzer’s discussion con-firms this claim (pp. 14546). But to choose to remain in one’s abode within

a besieged city is not as such to engage in the sort of hostile action that makesone, in effect, a soldier.

As this suggests, I believe that Walzer’s verdict on sieges is too permissive

(just as I believe that many, though not all, of his verdicts on military actions

that are impossible without great harm to civilians are too permissive). But I

do not think that my more rigorous view has unequivocal precedent within the

consensus of the moral world. Rather, it is based on an absolutist under-

standing of the rule against harming civilians. (The version of natural lawtheory I believe to be correct, not coercion by the logic of what is widely

accepted, justifies my understanding of the rule. Walzer’s contrary judgment

seems to me equally outside the consensus and may indeed be contrary to it, ifthe concept of “civilian” is as deeply embedded in the moral world as I suspect

it is.)

Thus, when it comes to things like seiges, the casuistry of the common

that is, the materials from which it begins are toomoral world has “run out”-

indeterminate to serve as a basis from which to settle some pressing questions.

When this happens we must carry on as ethical theorists, with little promise ofagreement and only our own wits to get us through.

Consequentialism, Responsibility, and the Common Moral WorldI suspect there is a wide range of morally relevant choices for which the com-

mon moral world provides no guidance, at the very least because of the rapiddevelopment of military technology. The unsettled state of moral opinion con-cerning nuclear deterrence is a salient example. When Walzer comes to dis-

cuss issues like deterrence, he takes note of the impact of the technology but

focuses primarily on the moral extremity of the situation—an extremity

defined by the moral urgency of the ends for which hostile actions are under-taken (p. 222). Here Walzer seems to recognize that the casuistry of the moral

world does not suffice, for he claims that the war convention cannot providefor extreme cases.

Concerns about extremity are most readily formulated in consequentialist

terms, and Walzer’s approach certainly appears to be consequentialist. Indeed,he maintains that utilitarian calculation can force us to violate the rules of war

(p. 268). Perhaps Walzer is supposing here that the rules of war have noagreed-upon application in extreme cases, and so his consequentialism is lim-

ited to providing for the indeterminacies in the common moral world. But it is


important to note that Walzer does use consequentialism to contradict the plainimplication of a fairly widespread understanding of the rule against directing

military force against noncombatants. In contrast to nuclear deterrence,whichis new enough in its technology and conditional enough in its harms to be out-side the moral consensus, the English terror-bombing of Germany in 1940 and

1941 seems to violate not simply the rule but also the consensus as to how the

rule should be applied. And Walzer justifies this action.

Of course, Walzer is much more concerned to limit necessity-based excep-tions to the rules of war than he is to justify them. But the reason for the limi-

tation is questionable. Since consequentialist considerations override the com-

mon moral world’s concern for human rights, it is not clear why the logic of

the common world does not simply rule consequentialist considerations out oforder and deal with the conflicts between rights in a casuistic way. Of course,

the human values protected by rights are better served if fewer violations of

rights occur, and if fewer violations are seen as justifiable. But if this is theargument for limiting justifiable violations of rights, it is a consequentialist

argument based on the values involved. If the constraints of supreme emer-

gency still allow a justification of terror-bombing, as well as an inferred justi-

fication of nuclear deterrence, then it seems hard to fix the limits as stringentlyas Walzer wants.

It seems to me, therefore, that Walzer’s consequentialism sits uneasily withother, more powerful and practical aspects of his approach. Nevertheless, his

use of consequentialist reasoning deserves a closer look. For this I will con-sider his discussion of nuclear deterrence, What Walzer discusses here is

deterrence of the kind practiced by the Western powers against the SovietUnion from the 1950s to the late 1980s (pp. 269–74). He justifies this deter-

rence by two distinct lines of reasoning, one of which applies his conclusionsabout actions justified in conditions of supreme emergency to the situation

faced by the West in the Cold War.Supreme emergency is a condition faced by a nation when two conditions

obtain: one, a threat exists to the nation’s most cherished and fundamental val-ues and, two, that threat is imminent. Walzer thinks that these conditions were

met when the British faced the challenge of Nazism in 1940, and that they jus-tified the terror-bombing undertaken at that time in response to the threat (pp.

251-63). Walzer explains as follows:

But communities, in emergencies, seem to have different and

larger prerogatives [than individuals]. I am not sure that I can

account for the difference, without ascribing to communal life

94 ETHICS & INTERNATIONAL AFFAIRS 1997 Volume11

a kind of transcendence I don’t believe it to have. Perhaps it is

only a matter of arithmetic: individuals cannot kill other indi-viduals to save themselves, but to save a nation we can violate

the rights of a determinate but smaller number of people. Butthen large nations and small ones would have different entitle-

ments in such cases, and I doubt very much that is true. We

might better say that it is possible to live in a world where indi-

viduals are sometimes murdered, but a world where entirepeople are enslaved or massacred is literally unbearable. For

the survival and freedom of political communities—whose

members share a way of life, developed by their ancestors, to be

passed on to their children— are the highest values of political

society. Nazism challenged these values on a grand scale, but

challenges more narrowly conceived, if they are of the same

kind, have similar moral consequences. They bring us under

the rule of necessity (and necessity knows no rules). (p. 254)

On this basis Walzer justifies the initial round of British terror-bombingagainst the Germans in 1940 and 1941, since that was the only means availableto the British for preventing a Nazi triumph (pp. 259–60). This reasoning is

readily applied to nuclear deterrence: a situation of supreme emergencybecame permanent during the Cold War; nuclear deterrence, though not the

ideal, was the best available means to prevent Soviet domination which,

though it would not have been as bad as Nazi triumph, was of the morally rel-

evant kind, nuclear deterrence is relatively painless and involves no killing

(pp. 273-74).Walzer’s other basis for justifying deterrence echoes his point that the

destruction of a people is “literally unbearable.” He argues that the alternative

to using nuclear deterrence in response to an enemy that possesses and is

willing to use nuclear weapons is not tolerable and will not be tolerated. The

intolerableness is based on the absolute disadvantage one faces against such an

enemy. Walzer contrasts that disadvantage with the disadvantages that com-monly arise from adherence to the war convention against enemies not simi-larly constrained. They are always partial and relative; countermeasures and

compensating factors are always possible (pp. 273–74). This is surely over-

stated, but the overstatement does not deprive the argument of force.’

7 See John Finnis, Joseph Boyle, and Gennain Grisez, Nuclear De&errence, Morality and Realism

(Oxford: Oxford University Press, 1987), 330.


Walzer’s arguments concerning the requirements of situations of extremity

are vulnerable to the same kinds of criticisms standardly used against conse-quentialist arguments. John Finnis, Germain Grisez, and I mounted such an

argument some years ago.” And Donagan’s rejection of the form of conse-quentialism which limits direct consequentialist considerations to situations in

which following the norms of common morality will lead to calamity appliesto Walzer’s analysis of supreme emergency. Donagan argues that, “since

nearly everybody’s judgment is disturbed by the anticipation of calamity, it is

probable that much of what is done on the ground of such escape clauses willbe mistaken.’” The objection applies to Walzer’s example because it is not

made clear—and I suspect is not clear in the historical record—how terroriz-ing the German population was understood as serving the purpose of reducing

the likelihood of Nazi triumph.I mention these arguments not to develop the refutation of consequential-

ism, but to illustrate the extent to which Walzer’s discussion of extremity,

because of its consequentialism, stands on its own without the authority of tra-

ditional consensus. Whether correct or not, it is deeply controversial.

I wonder, however, how consequentialist Walzer’s argument is, or needs to

be. On one possible reading it is deeply consequentialist. The cases of extrem-

ity are handled by direct consequentialist reasoning, but direct consequential-

ism is limited to cases of genuine extremity because the values of individualsand communities are ordinarily best served by respecting rights in accord with

the war convention; we enforce this line between cases of extremity and nor-mal warfare by refusing to accept as justified the evil actions required by

extremity, in part by dishonoring those, like Arthur Harris and Bomber

Command, who had to carry them out.I am disposed to reject this reading and instead to take seriously Walzer’s

claim in his preface that his deepest ethical commitment is to human rights,

with considerations of utility in a subordinate position. But if that subsidiary

role plays out in the way Walzer develops, we have a morality structured

somewhat as suggested by Thomas Nagel—that is, a morality in which bothconsequentialist and deontological considerations are regarded as legitimate

but naturally remain in some tension and there is no rational criterion for pre-ferring one sort of consideration over the other in particular conflicts.

If this is the structure of the morality Walzer implicitly endorses, it would

not be irrational to respond to his argument from extremity as follows: I see the

force of the argument, but I think I should stick to the war convention anyhow.

“ Ibid., 178–79, 242-49.‘ Donagan, 207.

96 ETHICS & INTERNATIONAL AFFAIRS 1997 Volumell

If this sort of common response to Walzer’s arguments about extremity is to bedismissed, then it is hard to see how the consequentialist considerations are

subsidiary and not overriding. And if they are overriding, then the deepest

considerations underlying his argument would seem to be consequentialist—

something Walzer wants to avoid. Plainly, these difficulties would be removed

or at least relocated if Walzer’s treatment of extremity were not consequen-tialist. I see two ways of interpreting his reasoning as nonconsequentialist,

each with some support in what Walzer actually says.The first alternative interpretation begins with Walzer’s claims about what

is unbearable and what is intolerable. What is not tolerable, he says with

respect to nuclear deterrence, won’t be tolerated (p. 274). This is plainly

ambiguous and can mean either that what should not be tolerated won’t be or

that what is judged or felt intolerable (whether or not it should be tolerated)

won’t be.The first sense of the expression simply raises the question of what people

should be willing to tolerate, while the second raises a more interesting possi-

bility. If people judge things intolerable or unbearable, then, whether or not itis permissible to do something about them, people likely will, and the intoler-

ableness provides a putative excuse. In other words, while the necessities that

emerge in conditions of extremity do not completely remove human agency,

deliberation, and freedom, they do constrain sufficiently to excuse. As

Aristotle argued, although actions in such situations are properly considered

more voluntary than not, their voluntariness is compromised such that “on

some actions praise indeed is not bestowed, but pardon is, when one does whathe ought not under pressure which overstrains human nature and which no one

would withstand.’’)’) Excuses, in other words, deny or qualify responsibility for

an action, but they do not show that the act is morally right. Quite the oppo-

site, they presuppose it to be wrong.Therefore, decisionmakers’ judgments about what they and their fellow

citizens can endure do not justify the dire steps often taken in extreme situa-

tions, or even the more routine compliance of soldiers with immoral com-mands or political decisions to wage unjust war (Walzer, pp. 37–42, 3 12–16).

When excuses are legitimate, they require that we qualify blame, but they do

not justify. Thus, on this reading, Walzer’s argument achieves far less than the

author seems to intend.The second alternative interpretation takes seriously Walzer’s insistence

that acting according to the necessities of situations of extremity does not

‘“Nicomachean Ethics, bk. III, ch. 1: 11lOa, 23-25. The limits of pardoning in such cases are dis-cussedby Donagan, 174-77.


remove the evil of the actions performed or one’s guilt in performing them (pp.

260, 323–25). This is not the standard consequentialist assessment. As con-sequentialists have noted in criticizing Walzer’s treatment of the tragic politi-

cian who must do evil things for the public good, such dire steps, properlydemystified from a consequentialist perspective, are simply morally good.”They represent the best one can do to-realize the good in a difficult situation.

There might be educational value in denouncing such actions, but the actionsare right,

But Walzer seems to regard the actions required in conditions of supremeemergency as genuinely tragic. Although required, they are wrong: peccafor-

titer (“sin bravely”), as a Lutheran might prescribe. One way to make sense ofthis is to acknowledge that moral dilemmas are real and unavoidable. That is

to say, soundly argued moral judgments about the very same action can be con-tradictory. Aquinas and the more rationalistic of the theorists withinDonagan’s common morality rejected the possibility of this kind of radical

moral perplexity,’2 but if one sets aside theistic beliefs about the dependence ofmorality on divine providence, and if one holds for a strong version of the

thesis that reasons for action frequently are incommensurable, then one can

easily imagine a choice—like those Walzer discusses under the heading ofsupreme emergency—between two alternatives, each of which is completely

compelling on its own terms but unable to trump the other.’~This way of thinking about actions in cases of extremity explains in a way

that consequentialism cannot Walzer’s sense that wrong is still done. It also

avoids some of the specific objections to consequentialist methods. But it still

leaves a gap roughly where consequentialism does, if one supposes as Walzer

seems to do that the whole story about morality cannot be consequentialist.

Even after all moral considerations have been made, one can, it would seem,

only choose randomly between opposing demands or be guided by nonrational

considerations like feelings. Calculation and intuition are replaced by volition

and desire. Again we seem to be at the edge or beyond the edge of a moral

world constituted by discourse and directed toward consensus.

ConclusionI have argued that while Wdzer’s “tour of the rooms” approach to morality

teaches us a great deal that is valuable from a practical standpoint, neither

Walzer nor any other serious moralist can avoid going beyond the logic of such

“ Donagan, 184.‘2Donagan, 14349.“ See Joseph Raz, The Morality of Freedom (Oxford U.K.: Oxford University Press, 1986), 257-66.


moral consensus as exists. When that must be done, the moralist approaches

the deep and controversial issues of moral theory, and that is when he or shebegins to appear impractical.

But impracticality has levels: it is risky for those who respect the consen-

sus to contradict it and riskier still when one’s theoretical view of morality

clashes with the presuppositions of the moral world. One of those presup-

positions is that the moral world is a world of discourse, a world of arguments

that can in principle win wide assent. But to the extent that moral disagree-

ments are based on differences of intuition or volition, that presupposition is

correspondingly weakened.Such differences will remain foundational unless we can find a moral

standard capable of adjudicating them. Since, Walzer and I agree, consequen-tialism does not provide such a standard, particularly if the authority of the

common moral world is to be respected, a rationalistic deontology like

Donagan’s seems the most plausible solution.

just and unjust wars: casuistry and the boundaries of the moral world

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