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1 The Path to Universal Peace: John Rawls and the Just War Doctrine Huw L Williams ([email protected]) Draft Paper Please do not quote without author’s permission Abstract Rawls’ just war doctrine is primarily interpreted as an elaboration of Walzer’s theory. However, when considered in light of Rawls’ Kantian commitments and the utopian nature of The Law of Peoples, his perspective on just war is distinctive and challenging to mainstream theories. Whilst endorsing principles similar to many other contemporary theorists, the Kantian influence leads to a nuanced doctrine with a commitment to peace as the regulative principle of war, characterised as principles of transitional justice that are never fully just. A perspective emerges that is sceptical of adventurism and interventionism and rejects the conventional move of extending the just war doctrine to humanitarian warfare. The statesman with a Rawlsian view of foreign policy would be a dove, rather than a hawk, committed to the belief that war is an evil to be avoided and overcome, and that universal peace should be aspired to. I - Introduction This paper takes as its inspiration the limited remarks that John Rawls makes on just war, and outlines an interpretation that constitutes a unique contribution to the subject. It characterizes the just war doctrine as one of transitional justice, defined by the regulative principle of establishing future peace in a worldwide society of peoples. The distinctive nature of this perspective is exemplified in its application to the problem of humanitarian warfare, which introduces the idea of ‘justifiable’, rather than just war. The paper also represents an important contribution to the debate around Rawls’ work on international politics The Law of Peoples (LP). It suggests that contributions thus far have been too hasty to characterize his position as being hawkish, rather than dove-like. A new interpretation of his work is presented with particular reference to the Kantian influence, eliciting a view more inclined towards pacifism, contributing to the literature that takes LP seriously as the completion of Rawls’ project. The argument is presented in three stages. The first section is largely expositional. I introduce some of the commentary on Rawls as broadly ‘Hegelian’ in his view of just war, seemingly following Michael Walzer’s theory closely and extending the doctrine to humanitarian warfare. I present the claim that we should interpret Rawls’ approach in light of his clear commitment to Kant’s text, Perpetual Peace (PP), suggesting how this points to apparent tensions within his just war doctrine and its interpretations by others. In the second stage I work through these tensions to demonstrate the unique nature of his just war doctrine. This argument develops in two steps: following Arthur Ripstein’s recent work on Kant I argue that Rawls’ approach is characterised by the Kantian idea that peace is the regulative principle of war. I then buttress this claim by demonstrating how Rawls’ just war doctrine represents principles
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The Path to Universal Peace: John Rawls and the Just War Doctrine

Huw L Williams ([email protected])

Draft Paper – Please do not quote without author’s permission

Abstract

Rawls’ just war doctrine is primarily interpreted as an elaboration of Walzer’s theory. However, when considered in light of Rawls’ Kantian commitments and the utopian nature of The Law of Peoples, his perspective on just war is distinctive and challenging to mainstream theories. Whilst endorsing principles similar to many other contemporary theorists, the Kantian influence leads to a nuanced doctrine with a commitment to peace as the regulative principle of war, characterised as principles of transitional justice that are never fully just. A perspective emerges that is sceptical of adventurism and interventionism and rejects the conventional move of extending the just war doctrine to humanitarian warfare. The statesman with a Rawlsian view of foreign policy would be a dove, rather than a hawk, committed to the belief that war is an evil to be avoided and overcome, and that universal peace should be aspired to.

I - Introduction

This paper takes as its inspiration the limited remarks that John Rawls makes on just war, and outlines

an interpretation that constitutes a unique contribution to the subject. It characterizes the just war

doctrine as one of transitional justice, defined by the regulative principle of establishing future peace

in a worldwide society of peoples. The distinctive nature of this perspective is exemplified in its

application to the problem of humanitarian warfare, which introduces the idea of ‘justifiable’, rather

than just war.

The paper also represents an important contribution to the debate around Rawls’ work on

international politics – The Law of Peoples (LP). It suggests that contributions thus far have been too

hasty to characterize his position as being hawkish, rather than dove-like. A new interpretation of his

work is presented with particular reference to the Kantian influence, eliciting a view more inclined

towards pacifism, contributing to the literature that takes LP seriously as the completion of Rawls’

project.

The argument is presented in three stages. The first section is largely expositional. I

introduce some of the commentary on Rawls as broadly ‘Hegelian’ in his view of just war, seemingly

following Michael Walzer’s theory closely and extending the doctrine to humanitarian warfare. I

present the claim that we should interpret Rawls’ approach in light of his clear commitment to Kant’s

text, Perpetual Peace (PP), suggesting how this points to apparent tensions within his just war

doctrine and its interpretations by others.

In the second stage I work through these tensions to demonstrate the unique nature of his just

war doctrine. This argument develops in two steps: following Arthur Ripstein’s recent work on Kant

I argue that Rawls’ approach is characterised by the Kantian idea that peace is the regulative principle

of war. I then buttress this claim by demonstrating how Rawls’ just war doctrine represents principles

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of transitional justice, moving from the non-ideal state of war to the ideal state of perpetual peace.

In the last stage I elaborate this novel Rawlsian perspective with reference to the highly

contentious and contemporary issue of humanitarian warfare, claiming that on Rawls’ terms it can

only be justifiable – not just. Specifically, there can be no claim to right in such a war. Although

Rawls’ treatment of just war is sparse, and therefore open to a number of interpretations, it is claimed

here that if we take his comments on the Kantian influence seriously, we are presented with a novel

and circumspect approach to just war - one which is more promising in terms of mitigating against its

misappropriation for aggressive foreign policy and adventurism.1

I – Reading Rawls on Just War and Humanitarian Intervention

Rawls’ treatment of war has received relatively little attention. One reason is that the majority of

those who have engaged with LP were philosophers inspired by A Theory of Justice (henceforth TJ),

and were most interested in questions of redistribution in the international context. The ferocity of

their critique also did little to draw International Relations scholars to the text.

At first glance, and taken in isolation, it is not easy to discern a distinctive contribution to the

doctrine; moreover, Rawls makes no claims in this regard. His discussion in LP spans sixteen pages

and it suggests little in terms of substantive points that diverge explicitly from Walzer’s approach. In

setting out his ideas on jus in bello he acknowledges that he presents ‘six principles and assumptions

familiar from traditional thought on the subject’.2 In a later footnote to his discussion of non-

combatant immunity he states ‘I follow here Michael Walzer’s Just and Unjust Wars...and what I say

does not, I think, depart from it in any significant respect’.3 One might assume that Rawls’ admission

applies to his entire discussion of just war. This seems to have been the perceived wisdom; as Rex

Martin states, ‘it has been claimed that Rawls adds very little, if anything, to Walzer on just war

theory’.4 Martin does, however, contrast their approaches, making the case that Rawls’ perspective

marks an improvement in several ways in his treatment of the rights of combatants, the conditions of

1 Implicit in this rendering of Rawls’ just war doctrine is that the foremost 20th century Anglo-American philosopher has a theory embedded in practice and history that blurs a seemingly distinct line between the analytical and historical approaches to just war, whilst bearing interesting resemblances with the Christian tradition with regards to the themes of the evil of war and the hope for peace. 2 John Rawls, The Law of Peoples (Cambridge, MA, London: Harvard University Press, 1999) p.94 3 Ibid., p.95 n8. 4 Rex Martin, ‘Walzer and Rawls on just wars and humanitarian interventions’, Journal of Social Philosophy, Volume 36, Issue 4 (2005): 453

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supreme emergency, and the legitimate agents for humanitarian intervention. Peri Roberts has made

another significant contribution with regards to Rawls’ treatment of the supreme emergency, drawing

out its significance with respect to Rawls’ broader account of international relations,5 and I follow

Roberts’ lead in locating his views on just war explicitly within the wider context of his thought.

Here I set out Martin and Alyssa Bernstein’s understanding of Rawls on humanitarian

intervention in particular, as illustrative of a broader view of Rawls as a rather conventional just war

theorist. Rawls’ comments on intervention are sparse, but there is some recognition that there may be

societies where human rights are violated frequently and purposively.6 In such cases there may come

a time when ‘forceful intervention’ is ‘acceptable and would be called for’: namely when ‘the

offenses against human rights are egregious and the society does not respond to the imposition of

sanctions’.7 Bernstein notes the tensions between a principle demanding the honouring of human

rights and a principle of a right to war that limits just war to wars of self-defense. She surmises that,

Rawls either contradicts himself or else: (a) he does not regard intervening militarily in order to halt egregious violations of human rights as going to war, or (b) he proposes to interpret the fifth principle of LP, which denies to peoples a right to go to war for reasons other than self-defense, as modified by the sixth principle, which requires peoples to honor human rights’.8

It is her, and Martin’s view, that Rawls has taken option (b). For Bernstein, Rawls picks up where

Kant finished: with his criteria for decency and the urgent basic rights he builds an allegedly Kantian

view on humanitarian warfare that provides us with more detail and guidance on this difficult and

tragic issue.9

Bernstein’s interpretation of Rawls does not set the bar excessively low in terms of armed

intervention. Indeed, elsewhere she argues that Rawls’ philosophy does not condone intervention in

5 Peri Roberts, ‘The supreme emergency exemption: Rawls and the use of force’, European Journal of Political Theory Volume 11, Issue 2 (2012) 155 - 171 6 Rawls, LP, p.90 n1 7 ibid p. 94 n6. 8 Bernstein, Alyssa (2009) “Kant, Rawls, and Cosmopolitanism: Toward Perpetual Peace and The Law of Peoples,” in Jahrbuch für Recht und Ethik/Annual Review of Law and Ethics, Volume 17 (Berlin: Duncker & Humblot, 2009, pp. 3-52); p.33. 9 That Bernstein claims Kant lays the basis for a theory of humanitarian intervention is illustrative of wider issues here relating to interpretations of Kant’s own approach to just war.

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undemocratic societies in order to secure regime change to a democratic order.10 Decent societies

represent legitimate forms of political rule, whilst other types of societies must tolerated in the same

manner; those Rawls terms Benevolent Absolutism, where no structures exist to allow citizens to

reform the political order, but where basic human rights are respected and protected. Bernstein does,

however, draw attention to the possibility that a Rawlsian approach justifies humanitarian warfare,

and that if a country’s government ‘has been violating basic human rights to such an extent there is

sufficient moral reason to depose it’.11 However, she is at pains to argue that even if this action

entails the need for post-war assistance, the establishment of a democratic regime cannot be used as a

justifying factor for war; moreover it is a moral duty to ensure such post-war reconstruction is

compatible with the history, traditions and explicit desires of the society in question and does not

impose democratic structures. It is not the claim that Rawls sanctions such a use of force that I will

take issue with in this paper – rather the attempt by Bernstein to argue that it amounts to a fully

developed extension of his just war doctrine to include humanitarian warfare.

Although Martin does not venture into a discussion regarding regime change, he is equally

unequivocal regarding Rawls’ extension of the just war doctrine. With regard to Rawls and Walzer

he states that ‘[b]oth theorists argue that a country can justifiably go to war for two reasons: it can do

so in self-defense or collective defense against aggression or it can do so in response to serious and

unamendable human rights violations’.12 In taking this stance, Martin points out that this version of

Rawls’ doctrine is in keeping with many others’ understandings of just war. Considering Rawls

explicitly states that he takes his principles from ‘the history and usages of international law and

practice’,13 which are also meant to accord ‘with a recent dramatic shift in how many would like

10 Alyssa Bernstein, "A Human Right to Democracy? Legitimacy and Intervention," in Rawls's Law of Peoples: A Realistic Utopia?, eds. Rex Martin and David Reidy (Oxford: Blackwell Publishing, 2006). 11 Bernstein, "A Human Right to Democracy?" p.293. 12 Martin, ‘Walzer and Rawls’ p.439. 13 Rawls, The Law of Peoples, p.57.

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international law to be understood’14 there are grounds to assume that Rawls intended for his just war

doctrine to include humanitarian war.15

What is perhaps most significant about these claims regarding Rawls is the type of

characterisation it offers of his approach. His just war doctrine is portrayed as being ‘Hegelian’, in its

acceptance of war as a permanent feature of the international order, and as relatively permissive in

allowing for the declaration of a just war under many circumstances. In fact, there is sufficient

ambiguity regarding how high Rawls draws the line for forced intervention that Henry Shue can

suggest a Rawlsian perspective would justify the declaration of war against any state that exhibits

tendencies towards disrespecting human rights.16 For Shue, this permissiveness stems from Rawls’

failure to outline ‘principles to structure non-belligerent relations’17 between members of his Society

of Peoples and outlaw states. In fact, Shue paints a rather apocalyptic picture of international relations

viewed through a supposedly Rawlsian lense.18

Whilst Shue’s argument exemplifies the extent to which Rawls’ position can be characterized

as hawkish, there is reason to suppose that even Bernstein and Martin’s more measured approach is at

odds with the general tenor of Rawls’ approach. He might equally be described as measured and

nuanced in his views, and as Darren Moellendorf notes, his account is ‘enmeshed in a rich set of

practical commitments for international relations’.19 It is these largely Kantian commitments that I

will now broach, and the identification of tensions both with the foregoing accounts, and indeed

Rawls’ wider account of international relations, will lay the basis for a more distinctive interpretation

of a Rawlsian approach to just war.

14 Ibid., p.27. 15 Martin, it should be noted, urges caution in the interpretation of such an argument. ‘Walzer and Rawls’, p. 448. 16 Henry Shue, ‘Rawls and the Outlaws’ Politics, Philosophy & Economics, vol. 1no.3 (2002): pp. 307-323. I would refer to David Reidy’s work to provide a more accurate picture of where Rawls’ intuitions lie on the subject of intervention. See "Human Rights and Liberal Toleration," Canadian Journal of Law and Jurisprudence, v. 23. n. 2 (2010): pp. 287-317. 17 Shue, ‘Rawls and the Outlaws’ p.308. 18 Ibid., pp.309-310. 19 Darren Moellendorf, ‘Just War’ in A Companion to Rawls (Blackwell Companions to Philosophy) edt. David Reidy and Jon Mandle p. 383

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In view of some of the previous arguments, Rawls is in danger of being depicted as an

apologist for war, a depiction that should provide pause for thought (indeed, Moellendorf suggests the

term ‘contingent pacifism’20 is appropriate for the position he begins to develop in TJ). Moreover,

with respect to LP, it is Rawls’ grounding claim that he follows Kant’s PP, and that he believes states

can aspire to the gradual formation of a peaceful worldwide federation. Instinctively, one would

suppose that these views do not sit well with the rather bellicose characterization of his approach.

Indeed, following Arthur Ripstein’s recent work on Kant, it will be argued that for Rawls, peace is

‘the central concept in the morality of war’.21

Rawls states in introduction that his ‘basic idea is to follow Kant’s lead as sketched by him in

Perpetual Peace and his idea of foedus pacificum’.22 More specifically, his approach entirely ‘accords

with Kant’s idea that a constitutional regime must establish an effective Law of Peoples in order to

realize fully the freedom of its citizens’.23 Given Rawls’ desire to emulate PP, the position on just

war in this text requires some scrutiny. In this famous text, after all, Kant rejects the doctrine outright.

He refers to Grotius, Pufendorf and Vattel - in their attempts to justify war under international

law - as sorry or ‘tiresome comforters’.24 Kant argues instead that states should move from a state of

relative anarchy (shaped by a law based on sovereign equality and independence where each state

‘sees its majesty...in its being subject to no external legal coercion’25) to a treaty based on a pacific

federation. Such a ‘free federalism’ would act as ‘a surrogate for the compact of civil society’.26 It is

under this surrogate only that a concept of international right can ‘mean anything at all’. 27

International right conceived otherwise as a right to war, is nothing more than a ‘presumptive right to

determine what is right...but rather by means of violence, according to one-sided maxims’.28 Kant

rejects the idea that right has any straightforward role in the declaration and practice of war. More

20 Moellendorf, p.382 21 Arthur Ripstein, ‘Just War, Regular War and Perpetual Peace’ 2016 Kant Studien, p.184 22 Rawls, The Law of Peoples, p.10. 23 Ibid, p.10. 24 Immanuel Kant, Toward Perpetual Peace and Other Writings on Politics, Peace, and History (edt. Pauline kleingeld, translated by David L. Colclasure) (Yale University Press, New Haven and London, 2006) p.79 25 Ibid., p.79. 26 Ibid., p.80. 27 Ibid., p.80. 28 Ibid., p.81.

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practically, he worries that theorists such as Vattel are providing an unjustified and philosophically

incoherent pretext under which states can declare war, for these sorry comforters ‘are still faithfully

cited to justify an offensive war’.29

Given Kant’s concerns about the dangers of embedding the rules of just war in international

politics, and their potential for increasing instability and violence in PP, Rawls might have accounted

for his own acceptance and endorsement of just war theory whilst acknowledging this divergence with

Kant’s thinking on the issue.30 Moellendorf points out:

Rawls takes Kant’s Perpetual Peace as a guide for the development of his views in LP (LP, 10). But nothing could be further from Kant’s concerns in Perpetual Peace than the interest that Rawls has in incorporating principles of just war into the Law of Peoples. Kant is openly hostile to just war principles and is scathing in his criticism of his predecessors who sought to develop the doctrines of just war.31

Rawls offers no direct response, or an explanation of the decision to enshrine principles of just war as

principles of justice within the charter of his law of peoples. They appear as part of what we might

term the constitutional essentials of his international law. Whereas Kant’s general approach to war in

PP focuses on the actions states can take to undermine the impulse to war, whilst dismissing just war

thinking as a premise for violence, Rawls gives these principles pride of place alongside his other

principles of international justice. Kant accepts war is a highly regrettable part of the practice of

international politics as it is - where a common law and a claim to right do not exist - but believes its

destructive elements push us in the direction of rejecting it in the long term and seeking out a peaceful

resolution; superficially it might seem that Rawls allows for a more permanent role for war.

This apparent tension in Rawls’ approach is further emphasised with reference to Walzer’s

seminal work on just war. The not insignificant difference between his and Rawls’ presumed

‘Kantian’, meta-ethical perspective, is suggested by Walzer in his introduction to Just and Unjust

Wars. Walzer is primarily interested in elucidating and unveiling the ‘present structure of the moral

world’ in setting out principles for just war. However, he also identifies a perspective which is

29 Ibid., p.80. 30 Admittedly, some, such as Orend (2000) have argued that Kant has a theory of just war, but this view only gained any ground after the publication of LP and depends to a large extent on drawing from Kant’s other texts. 31 Moellendorf, p.389

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committed ‘to restructuring international society’.32 He refers to such an approach as utilitarian, but

his broadbrush description can be applied Rawls, whose response ‘to the poverty of the contemporary

international regime’ is imputing within it some purpose – ‘the achievement of some sort of “world

order” – and then reinterpreting the law to fit those purpose’.33 Whilst Walzer has the more measured

ambition of articulating ideas of just war, restricting the ferocity and frequency of war and ensuring a

better peace, Rawls’ international theory is explicitly grounded on the assumption that his principles

and ideas provide the stimulus for realizing a peaceful world order – a realistic utopia.

Understood in such terms, as the means to a utopian and peaceful worldwide society, the first

impression - that Rawls would establish the just war doctrine as first principles of his law of peoples -

must be questioned. It is not simply that this would be a rejection of Kant’s critique, it would also

enshrine the idea of just war as an apparently permanent part of the fabric of international relations:

an approach clearly in tension with his claims for a worldwide realistic utopia. It appears to take him

closer to a Walzerian perspective that is less sanguine about the hopes for a perpetual peace, and

regards acts of aggression as a permanent threat. Just wars can never be expected ‘to stamp out illegal

violence, but only to cope with particular violent acts’.34 Importantly, this is how he seems to have

been understood by his interpreters. It is in working through this tension and focusing on Rawls’

“rich set of practical commitments” that I present a different interpretation of his just war doctrine,

showing him to be more dove than hawk, with a nuanced approach to humanitarian intervention that

echoes Kant’s reservations about war.

II – Rereading Rawls on War

In interpreting Rawls with reference to Kantian themes, I will characterize his principles of just war as

ones defined in particular by the idea that peace is the regulative principle of war: principles of

transitional justice. In arguing that Rawls is a dove rather than a hawk, and a philosopher who is

sceptical about war, it seems apt to note that Rawls himself experienced combat as a soldier. When he

32 Michael Walzer, Just and Unjust Wars, 4 edt. (Basic Books, 2006) p. Xxi. 33 Walzer, Just and Unjust Wars, p. Xi. 34 Ibid., p.121.

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therefore states ‘war is a kind of hell’,35 he does so with some feeling and authority. In later life he

would admit that the events of war,36 as well as the incomprehensible nature of the Holocaust, turned

him away from Christianity, and towards philosophy. In fact, a deep lying motivation for Rawls’

philosophical preoccupation with justice can be taken to be his belief that ‘once the gravest forms of

political injustice are eliminated by following just (or at least decent) basic institutions...great evils

will eventually disappear’.37

Following Rousseau, Rawls believes that where values of justice and decency exist, and are

embodied within the institutions of a society, there is every reason to suppose that those who grow up

within these institutions will come to affirm them.38 The idea that persons and peoples are capable of

moral learning is key to the possibility of realizing a realistic utopia both domestically, and

internationally - where all societies in the world can agree on a basic law of peoples. In such a society

of liberal and decent peoples, the great evils of human history can be eradicated and, in keeping with

the assumptions of democratic peace theory, these peoples will live in peace. Although Rawls is at

pains to present LP as a political and not metaphysical theory, in his Rousseauean faith in human

nature he makes explicit the type of optimistic metaphysical underpinnings that distinguishes him as a

thinker, and reveals the impulse that animates his realistic utopianism.39

Rawls’ first discussion of just war was presented in TJ (a few year prior to Walzer’s work).40

The primary aim in this context was to set out his justification of conscientious refusal (at the time of

the Vietnam War), and doing so entailed a brief sketch of a law of nations that would eventually be

elaborated in LP. In essence, his aim was to establish just war principles as the grounds for a political

conception of conscientious objection. He argues the ultimate justification for a war of self-defence is

a society’s preservation of ‘its just institutions and the conditions that make them possible’,41 whilst

35 Rawls, The Law of Peoples, p.103. 36 See Thomas Pogge, John Rawls: His Life and Theory of Justice (Polity Press, 2007) for these stories and other biographical detail. 37 Rawls, The Law of Peoples, p.7. 38 Ibid., p.7. 39 Rawls, The Law of Peoples, p.103. 40 Rawls, John (1999b) A Theory of Justice [1971], revised edn (Oxford, New York: Oxford University Press), pp. 331-4. 41 Ibid., p.333.

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the principles regulating the means of war are grounded in the aim of war: a just peace. As such ‘the

means employed must not destroy the possibility of peace or encourage a contempt for human life that

puts the safety of ourselves and of mankind in jeopardy’.42

Two points of significance present themselves here. Although Moellendorf notes that the

account in TJ displays some problems, most notably the lack of discussion relating to the principles of

jus in bello, what is of utmost importance here is the ‘policy of general and radical skepticism’43 that

Rawls establishes with regard to the question of whether wars can satisfy the demands of just war. In

view of this ‘a form of contingent pacifism may be a perfectly reasonable position’.44 Such a starting

point is not without its significance, both reflecting Rawls’ own experiences and informing, I will

argue, his views on humanitarian intervention.

The second point is the central significance Rawls places on the aim of a just peace as the

defining concept with respect to our treatment of war. It is in this respect we can identify a Kantian

theme at work, as described in Ripstein’s explanation of Kant’s approach to war. Ripstein explains

how although Kant reserves a special disdain for warfare, he allows for the possibility that it can be

conducted in view of a conditioning principle; with war, the ‘only rightful result is securing the

peace’.45 In essence, war is a barbarian state of affairs where legality perishes; however, one can

discern the ideal of right, and therefore a guiding principle, in the idea that something analogous to a

contract has been assumed – that both parties have accepted that they are seeking to establish their

rights through war. It can only be rendered intelligible if we think about war in these terms (even

though it is presumed the warring factions do not understand it in this way) – and that they are

resolved to bring the dispute to an end with an acceptance of the peace that follows. ‘That is, the

grounds and conduct of war must be consistent with future peaceful resolution… a positive condition

in which states accept that disputes will be resolved peacefully, that is on their merits’.46 Rawls’

42 Ibid., p.332. 43 Moellendoerf, p.382 44 Rawls, TJ p.335 45 Ripstein, 2016 p.193 46 ibid., p.190

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understanding of just war, it is argued here, cleaves to the same guiding value as Kant: that ‘peace is

the constitutive principle through which war can have a regulative principle… Even in horrific

circumstances, morality still has something to say’.47

Rawls’ discussion of just war is developed in LP, redolent with the emphasis on peace in TJ.

In fact, one might venture that these principles are as derivative of the ‘early Rawls’ as they are of

Walzer’s theory. The two principles he outlines as part of his charter of the law of peoples read as

follows:

5. Peoples have the right of self-defence but no right to instigate war for reasons other than self-

defence... (my italics)

7. Peoples are to observe certain specified restrictions in the conduct of war.48

With regard to jus ad bellum, the law of peoples assigns, according to Rawls ‘to all well-ordered

peoples (both liberal and decent)...the right to war in self-defence’.49 In acting in self-defence

peoples may have different interpretations of what it is they are defending, but with reference to the

regulative principle of peace, one might suggest that Rawls is grounding the presumed ‘right to war’

and the conscription of citizens to the cause, in the possibility of peace and liberty it represents. The

governing of war is embedded within the broader aspiration of a peaceful worldwide federation with

the emphasis not solely on protecting persons, but of upholding and encouraging good governance (a

theme James Turner Johnson identifies with the Christian tradition).50

The principles for jus in bello are elaborated in more detail by Rawls. These are principles and

assumptions that Rawls states are familiar in traditional thinking on the issue, in the same way that his

eight principles for the charter of the law of peoples are ‘familiar and largely traditional principles’.51

Yet Moellendorf notes that neither of the first two principles (the aim of a just war is a just and lasting

47 ibid., p.195 48 Rawls, The Law of Peoples, p.38. 49 Ibid., p.91. 50 ‘Contemporary Just War Thinking: Which is Worse, Friends or Critics?’ Ethics and International Affairs Vol. 27 no.1 (2013) p.41 51 Rawls, The Law of Peoples, p.43.

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peace and well-ordered societies do not wage war against each other) are traditionally principles of

jus in bello.52 He accounts for them in terms of their instrumental value ‘in the long-term project of

achieving international justice’53 – in other words we see embedded within Rawls’ account of the

principles of warfare the regulative principle of peace and the ambition of creating a foedus pacificum.

The figure of the statesman emphasises this idea (a figure who displays facets similar to Kant’s

‘moral politician’ who tries to adhere to right rather than expediency, and regards politics as a moral

task and not a technical task as conceived by the ‘political moralist’).54 Rawls ascribes a tremendous

importance to this figure, the ideal of which ‘is suggested by saying: the politician looks to the next

election, the statesman to the next generation’.55 The statesman is a person of unique nature ‘who,

through their exemplary performance and leadership in their office, manifest strength, wisdom and

courage’.56 Rawls has in mind individuals such as Washington and Lincoln, who in times of danger

are crucial in ensuring that well-ordered states conduct themselves in keeping with the principles of

jus in bello - and are not swayed by passion or vindictiveness. Equally, they are able to exercise

political judgement, when these principles may only guide them so far. Above all else ‘statesmen are

to hold fast to the aim of gaining a just peace’ and thereby act according to the regulative principle of

peace.57

It should be noted, nevertheless, that the statesman is not to stand alone, articulating these moral

dilemmas and executing decisions of incalculable importance single-handedly. It is the task of

philosophers to ‘express the permanent conditions and the real interests of a well-ordered society’58

whilst the norms of just war must be embedded within the political culture of liberal and decent

peoples. He argues that even had ‘an articulate expression of the principles of just war’ emerged

before the bombing of Hiroshima and Nagasaki, it would have been too late as bombing civilians was

52 Moellendorf, p.386 53 ibid., p.386 54 Kant, PP, 100 55 Ibid., p.97. 56 Ibid. 57 Rawls, The Law of Peoples, p.98. 58 Ibid., p.97.

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‘an accepted practice of war’.59 Therefore, to have any influence, these principles need to be part of

the political culture in advance of conflict, in the same way that the foundations of democracy should

be continually discussed, and presumed to be functioning in the background.60

Here we see the convergence and divergence in Rawls and Kant’s views; the former has a clear

belief that the principles of just war can work to avoid the worst excesses of war and de-escalate,

rather than escalate situations of (potential) violence. Whereas Kant suggests one must assume a

(largely absent) idea of right in war in order to conceive of the regulative principle of peace, Rawls

holds that in a defensive war, at least, right is clearly discernible and can be articulated within the

framework of a just war doctrine. However, whilst Rawls differs from Kant with respect to right, he

shares the key idea that we can and should move towards a stable peace – and in this respect his

principles of just war are enmeshed in the commitment to securing a stable peace in the long term.

What we see, therefore, is a divergence between him and Kant not in their faith in perpetual peace,

rather in the means required to secure it.

I now wish to move on to the second argument that is the basis for claiming that a Rawlsian

approach to just war is novel and to distinct, namely that his doctrine is one of transitional justice.

Elucidating this argument has to do with the challenge of addressing a tension in Rawls’ faith in

peace, and the apparently settled role of just war doctrine in his account of international politics - the

appearance of what may be described as a Hegelian perspective. The general precedence given to the

state in his ethical thinking, the priority given to state interests in LP, and his depiction of war as a

‘legitimate form of political interaction’61 are all recognisably Hegelian motifs. Howard Williams

argues that contemporary just war theorists such as Walzer tend to be broadly Hegelian in their

approach, with their implicit assumption ‘that war has its part to play in the normality of international

relations’ and an ‘assumption of the legitimacy of war as a means of resolving disputes in the current

international framework’62 – an attitude reflecting the views of Grotius, Pufendorf and Vattel, and

59 Ibid., p.102. 60 Rawls, The Law of Peoples, p.102 61 Howard Williams, 2012, Kant and the End of War (Palgrave Macmillan: Basingstoke) p.162-3 62 Howard Williams, p.143

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what Ripstein entitles to as the ‘regulative’ perspective on war.63 Rawls is no exception, even if he

‘breaks out of the Hegelian mould in granting there may be a better and more peaceful world society

to come.’64 Here I want to argue that Rawls may ultimately be regarded as more Kantian than

Hegelian, in his view that the transitional principles of just war can be dispensed with in a future

realistic utopia.

The Hegelian tendencies that are at the root of Rawls’ views are tied to the concept of reflective

equilibrium that is a foundational aspect of his philosophy. This method is important to grasp in

appreciating why Rawls’ embraces just war theory in the first place. It recalls Hegel’s view that the

role of philosophy is to view the actual world as its object and attempt to draw out the reason inherent

within it – rather than reason abstractly or postulate future ideals. In Rawls’ view, any moral theory

that is worthy of consideration, which can lay a stable basis for legitimate political principles, must

chime with, and allow us to make sense of our quotidian judgements and values that have been built

up over time. For a political philosophy to have viable foundations, it must allow us to reflect upon

and critique our considered judgements of what is just. There must also be scope for readjusting the

theory on the basis of these considered judgments. Only when such a philosophy allows us to

articulate, and re-articulate our principles, can it be considered a viable theory. Such a theory can be

said, according to Rawls, to be in reflective equilibrium.65

In this sense, the first place we should look in testing our political theory is the public political

culture and the ideas and values that this culture embodies. Whereas Kant’s transcendental idealism

appeals to the authority of reason in expressing the ideas of perpetual peace, LP is to fall back on the

fixed moral points of the international public political culture. It is therefore entirely appropriate that

he should choose a just war doctrine that has emerged within international society over centuries - as

opposed to following the path of constructing a Kantian-inspired critique. To dismiss just war theory

out of hand would be to question one of the fixed moral points of international society as it is today,

63 Ripsten, 2016 64 Howard Williams, p.161 65 See Chandran Kukathas, and Philip Pettit, John Rawls’ “A Theory of Justice” and its Critics (Polity Press, 1990) for a discussion of reflective equilibrium and the analogy with the relationship between language and grammar. See also for a discussion of Rawls’ Hegelian tendencies. pp. 7-8, pp.144-8

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and to ultimately question his own philosophy. As such one can understand that, faced with the

prospect of abandoning his own philosophical method or one aspect of Kant’s international thought,

Rawls should choose the latter course.

Yet despite this ‘Hegelian’ rupture with Kant’s view, we come to appreciate the distinctiveness of

a doctrine that shares the pacifist ambitions of Perpetual Peace. In one respect, we can recognise the

preference for a Kantian perspective in the way Rawls’ just war doctrine is enmeshed within his

version of the foedus pacificum. The right to war in self-defence is one principle amongst many

within a federation of free peoples, which represents the type of surrogate of an international covenant

that Kant refers to. International right is grounded in the multi-lateral, internationally (if not

universally) valid law of peoples, not on the individual right of states to pronounce a war as just.

Kant, as he has been more traditionally understood, would baulk at the suggestion of labelling any

war as just, and would deny such an uncomplicated ‘right’ to war; right in the condition of war is

more usually understood as unintelligible66 or at best, inferred67. Nevertheless, a war declared by a

member of a federation of states with the consent of its other members might hold greater legitimacy

for Kant than a unilateral declaration of war where no binding international covenant exists.

Despite this Kantian context of these principles, the apparent tension between the impulse to

peace, and the Hegelian tendency towards the immutability of war remains. To arrest this tension and

appreciate how Rawls breaks out of the Hegelian mould, we need in the final analysis to recognize the

importance of his distinction between ideal and non-ideal theory. Whereas ideal theory presumes

compliance on behalf of actors (i.e. ideal circumstances), non-ideal theory presumes the very

opposite. As such, in the context of LP it concentrates on the moral and practicable actions that can

achieve the long-term goal of securing a worldwide realistic utopia.68 In particular, non-ideal theory

has to look to the ‘specific conditions of our world’ in seeking out effective answers to how ‘to work

66 Philip J. Rossi, 2016 ‘War as Unintelligible: Sovereign Agency and the Limits of Kantian Autonomy’ in The Monist, 99, pp.1-12 67 Ripstein, 2016, pg.191 68 Rawls, The Law of Peoples, p.93.

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from a world containing outlaw states...to a world in which all societies come to accept and follow the

Law of Peoples’.69

This distinction between ideal and non-ideal theory is easily overlooked in assessing Rawls’

initial statement of the charter of the Law of Peoples, where the basic principles are presented in an

apparently arbitrary order. He does state that ‘some are superfluous in a society of well-ordered

peoples, for example, the seventh regarding the conduct of war and the sixth regarding human

rights’,70 but this is a rather limited acknowledgement of the differing nature of the eight principles,

and the implications of this difference. In fact, to emphasise the transitory nature of his just war

doctrine, it may have been helpful had Rawls divided the principles of the law explicitly, in the same

way that Kant drew a distinction between his preliminary and definitive articles. This would be a

clear illustration of how his just war doctrine is distinctive, diverging from other contemporary

thinkers in his emphasis on the imperfect nature of the idea, and its instrumental role as a means to

achieving a worldwide peaceful Society of Peoples.

The categorisation of his just war principles as non-ideal, or transitional, buttress and capture the

mutability of war and the prospects of a just peace emphasised elsewhere in LP. The transitional

nature of the doctrine and the sense in which it is shot through by the regulative principle of peace is

captured neatly in the guidelines for the statesmen and soldiers alike. By respecting the human rights

of enemy soldiers and civilians, they foreshadow the peace aspired to, and they ‘show in an open way

the nature of their aims and the kind of people they are’.71

The statesman understands that relations with the present enemy have special importance: war must be openly and publicly conducted in ways that prepare the enemy people for how they will be treated and that make a lasting and amicable peace possible.72

In this section I have set out certain points of connection between Rawls and Kant’s views on war and

in so doing presented two key arguments in drawing out Rawls’ unique approach. The dominant

theme of war being conducted with the aim of a just and lasting peace, coupled with the idea of just 69 Ibid., p.90. 70 Rawls, The Law of Peoples, p.38. 71 Ibid., p.98. 72 Rawls, The Law of Peoples, p.101.

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war principles as nonideal and transitory, give a very different feel to Rawls’ just war doctrine. It

identifies him with the description Walzer offers of thinkers who envisage restructuring the

international system, rather than explicating it. Whereas there is a tendency for some to view the idea

of war as an immutable part of global politics (or at least speak of it as if it were immutable), and

therefore the principles of war as a permanent part of international law, Rawls provides us with a very

different view of them: as representing a transitory stage in world society. Non-ideal principles of

just war, we can hope, will eventually go into abeyance (as they have within the European Union), to

be called upon again only when regression to warfare or humanitarian tragedies occurs.

These transitional principles of justice therefore represent not some permanent ideal that should

be part of any fully just world order, but rather principles for our imperfect world. This argument can

be restated with reference to the assumption that all violence, and thus war, is evil. From this starting

point, where any type of killing always has some element of injustice, no war can be considered fully

just, but only justifiable in terms of protecting peace and order in the longer term. This is a position I

believe one can ascribe to Rawls’ principles of just war. Indeed, labelling his principles of just war as

transitional principles suggests that these are not principles of justice in the same sense as, for

example, his two principles of social justice for a fully just society. Inherent within principles of just

war is an element of injustice that we must ultimately look to overcome. A war may be justified with

recourse to these principles, but the pronouncement of a war as ‘just’ is not to be understood as the

statesman having right unreservedly on his side. He may be able to justify a war, to proclaim it to be

legal, but this is not to say war itself can be legitimized as fully just – to use Rawls’ phrase.

Another way of expressing the difference might be to suggest that a just war is legal, but it is not

righteous. Rawls says, ‘war is a kind of hell; but why should that mean that normative distinctions

cease to hold? sometimes all or nearly all may be to some degree guilty; but that does mean that all

are equally so’.73 Here he points both to the moral ambiguity of warfare, but also the necessity of

maintaining what he describes as the ‘fine-grained distinctions of moral and political principles and

73 Rawls, The Law of Peoples, p.103.

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graduated restraints’.74 In other words these principles do not for Rawls represent an ideal of justice,

rather they represent the most adequate form of moral principles relevant to the highly unjust and

destructive conditions of war. The affinity between Rawls and Kant - and Aquinas’s - position is

evident in their emphasis that justice, especially in war, is approximate rather than categorical: as Joan

Tooke says, ‘any killing, even in war and even if unintentional, is only half just’.75

Humanitarian Intervention

In the previous sections, arguments have been presented as to why Rawls’ position is distinctive. He

clearly advocates just war doctrine because he believes it gives us the moral tools to critique, regulate

and ultimately undermine war. For him, contra Kant, just war – limited to self-defence - is the most

promising approach for ensuring peace is the regulative principle of war. Couching the doctrine as

non-ideal reflects his hope that its principles are ones of transitional justice, and so he clearly shares

Kant’s hope of perpetual peace, whilst diverging on the means to secure it. It was also suggested that

although Rawls does not problematise the status of right in war to the same extent as Kant, it is

nevertheless presented as far more contingent and fragile in the state of war - a just war can never be

fully just.

In this penultimate section, the aim is to draw out more explicitly how Rawls’ theory is notably

different with respect to one of the most important aspects of the contemporary debate, namely

humanitarian intervention. In so doing I attempt to buttress the view of Rawls as a ‘dove’. I argue

Rawls does not extend his just war doctrine to Humanitarian Intervention because ‘right’ will not

extend to aggressive acts of war - a claim to justice in this context is unintelligible. In a sense, Rawls

extends the Kantian idea of the regulative principle of peace to a war of aggression, but does not do so

in the name of ‘right’. The use of force in this instance is understood by Rawls in analogous way to

how Kant is taken to regard all war – a barbarian act which is used to bring an end to the dispute. In

more direct terms I will claim that Rawls presents us with a case for justifiable, rather than just war.

74 Ibid. 75 Joan D. Took, The Just War in Aquinas and Grotius (London: SPCK, 1965) p. 156.

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Humanitarian Intervention is not just, in that there can be no claim to ‘right’, but it may be publicly

justifiable (that is justifiable in the face of scrutiny by politicians, philosophers and the considered

judgements of the public) - if the action can be shown to unequivocally promote the possibility of a

stable peace. Ultimately, my suggestion is that we can read Rawls as placing restraints on the use of

war, pushing back against what Cian O’Driscoll has recognized as the widening and loosening of its

application.76

Arriving at this conclusion is not without its difficulties, however. Interpreting Rawls on the

matter of humanitarian intervention is a difficult business, and as with his views on development

assistance, his perspective is amenable to various accounts. As outlined at the outset, Bernstein and

Martin are persuaded that Rawls intended to extend the just war doctrine to this particular use of

force. Bernstein surmises that Rawls believes the duty to defend human rights modifies the principle

of self-defense - not that military intervention defending human rights does not constitute war. In

view of my interpretation of Rawls here, it is perhaps unsurprising I am less persuaded than Bernstein.

However, it is equally difficult to defend the latter argument: it is difficult to describe the acts of

violence between states that Rawls clearly contemplates as anything other than “war”, and he himself

uses the term “war” at least once to describe this form of action. I instead propose a third

interpretation: that Rawls tries to navigate a course between the two – that humanitarian intervention

is indeed an act of war that might be publicly justifiable, but it is not an act that can be categorically

described as an act of “just” war, modifying the principle of self-defense.

His reluctance to extend his just war doctrine in this regard is represented both in the

language used and in the ad hoc, adumbrated manner he deals with the issue. In his first discussion of

the problem he describes war as “an admissible means of government policy and is justified only in

self-defense, or in grave cases of intervention to protect human rights”.77 Humanitarian intervention

can be justified, but this is not to state that it is just, and tellingly it does not lead to a systematic

inclusion of the act within his just war doctrine. Moreover, in the subsequent discussions of

76 Cian O’Driscoll, 2008 Renegotiation of the Just War Tradition and the Right to War in the Twenty-First Century (Palgrave MacMillan: New York) 77 Rawls, The Law of Peoples, p.79.

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humanitarian warfare within nonideal theory - largely confined to footnotes - he resists the word ‘war’

in favour of more ambiguous terms: “some kind of intervention”78 and “forceful intervention”,79

whilst in another case it is unclear whether “intervention of some kind”80 relates to the use of force or

a range of policies. Moreover, in his discussion in §13.2 of Well-ordered Peoples’ Right to War,

Rawls allows for only one qualification of the ‘right to war in self-defense’ which, as specified in the

footnote, is ‘the right to help to defend one’s allies’.81 There is no clear or unambiguous endorsement

of the idea of humanitarian warfare as belonging to the just war doctrine.

In engaging more specifically with the problem in the context of non-ideal theory, it is noticeable

also that Rawls resists the temptation to formally add the type of “outlaw” society under discussion to

his taxonomy of peoples. This is despite the obvious fact he regards such societies that are not

aggressive, but perpetrate egregious human rights violations, as presenting a very particular problem.

It is intriguing that he should not take this step, given that another societal type, “benevolent

absolutisms”, are integral to his taxonomy, although they receive perhaps even less critical attention

than what we might call “tyrannical absolutisms”. There is a reticence on Rawls’ part to treat them in

a systematic manner and I take there to be a very good reason for this: such an approach could entail

laying down the type of explicit moral injunctions that are inappropriate for such cases, where human

rights and the norm of non-intervention clash, where lines are blurred and what is properly just and

unjust is difficult to decipher, and where clear outcomes are very difficult to predict. In Kantian terms,

we have entered the realm of moral unintelligibility, where uncomplicated claims to just action is

simply not feasible, and no clear path can be found to right.

Caution, and recognition of the practical difficulties, are evident where he discusses the Law of

Peoples as Guide to Foreign Policy. It is here that his most extensive discussion of ‘forceful

intervention’ appears – and not as part of his discussion of a right to war. Rawls shies away from

extending in any explicit or formal manner jus ad bellum to a doctrine of humanitarian warfare. This

section represents a more general treatment of the issue of liberal peoples’ foreign policy towards 78 Rawls, The Law of Peoples, p.90 n1. 79 Ibid., p.94 n6. 80 Ibid., p.93 n6. 81 Ibid., p.91 n2.

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states, which are not aggressive, but where human rights are violated routinely (that Shue overlooks).

With regard to these “tyrannical absolutisms”, as with foreign policy more generally, it is the

regulative principle of peace - the long term aim of a worldwide realistic utopia - that is the main

priority. Rawls here makes a telling admission suggesting the limits of hard and fast moral reasoning,

and the limits of applying prescribed ethical principles: that how this peace is to be achieved in these

cases ‘calls for political wisdom, and success depends in part on luck. These are not matters to which

political philosophy has much to add’.82

It is his opinion that for the main goal to be realised - of bringing ‘all societies eventually to honor

the Law of Peoples’– the Society of Peoples will need to establish ‘institutions and practices...for their

common opinion and policy toward non-well-ordered regimes’.83 Such institutions will seek to apply

diplomatic pressure on outlaw states and other more invasive forms of intervention, such as denying

them any involvement in mutually beneficial practices, establishing economic sanctions and denying

assistance. There may come a time, however, when the human rights offences are egregious and there

is no response to sanctions, and it is in such cases that Rawls describes armed intervention as

acceptable – but not just.84

Rawls, therefore, does not on my reading incorporate humanitarian intervention as one of the

principles of his just war. All of his discussions on this matter suggest that Rawls sees these tragedies

as morally nuanced and terribly difficult to negotiate, where providing a hard and fast duty of justice

to intervene is untenable. Given his Kantian commitments, it is apt that he is sceptical about issuing

such principles that might be misused by rational, self-seeking states, or politicians who in Kant’s

terms are political moralists. It can be reasonably suggested that it is a deliberate move, not to extend

jus ad bellum to humanitarian intervention. Rather, what Rawls allows for is the possibility that in

some situations, as the last option of foreign policy, statesmen may legitimately take recourse to

forced intervention, or in other words, war. In the terms set out by Ripstein, our best hope is that

although no right of war can be appealed to, the act of war will be subsumed under the regulative

82 Rawls, The Law of Peoples, p.93. 83 Ibid. 84 Ibid., p.94 n6.

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principle of peace; thus all action is justifiable and undertaken in terms of the long term aim of a

stable peace. Whilst in some sense defensive war is right and moral for Rawls (although never fully

just), humanitarian war cannot be justified in these terms, only with respect to the hope for peace.

Viewed from the perspective of the statesman, therefore, humanitarian intervention cannot be

legitimized as an extension of just war. As a tool of foreign policy, however, it may be considered a

legitimate decision - one that is justifiable in its guiding aim of securing the expansion of a peaceful

Society of Peoples, and in this context force is the last option. As with all such actions it is

‘essentially a matter of political judgement and depends upon a political assessment of the likely

consequences of various policies’.85 Such a policy would be expedient for the statesman in our non-

ideal world as it is, but in pursuing such action jus ad bellum cannot be invoked as a defence – the

statesman maybe justified in taking such a route in his foreign policy, but he cannot claim to be acting

justly. The final arbiter is whether this unjust action is aligned with the regulative principle of peace.

Rawls draws crucial limits on the just war doctrine, but he allows for the possibility that

humanitarian intervention (although not even half just in the same way as a defensive war) may be, to

use his language, the “decent” course of action. Such variegated moral categories are entirely

consistent with Rawls’ general approach to moral theory. It is important also that he does not deny

that such acts should be described as war, because so described, we should take for granted that the

principles of jus in bello still hold. Indeed, as Mollendorf noted, Rawls’ own rendering of these

particular principles are important because they pay particular attention to the need to regulate the

conduct of war so that it lays the basis for a stable peace. Given that humanitarian intervention is a

morally ambiguous and problematic course of action, it is important to ensure that this use of force -

best described as legitimate or decent - should still be unequivocally subject to the internationally

recognised restraints on warfare. This decoupling of jus ad bellum and jus in bello reflects the

importance of sustaining the dichotomy – more recently questioned86 – between the law governing the

85 Rawls, The Law of Peoples, p.93 86 See, for example, Jenny Martinez and Antoine Bouvier, ‘Assessing the Relationship Between Jus in Bello and Jus ad Bellum: An "Orthodox" View’ Proceedings of the Annual Meeting (American Society of International Law) Vol. 100, (2006), pp. 109-112; Robert D. Sloane, ‘The Cost of Conflation: Preserving the Dualism of Jus Ad Bellum and Just in Bello in the Contemporary Law of War’, Yale Journal of International Law, Vol. 34

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resort to force and the law governing the conduct of hostilities. So therefore even if Rawls’

framework allows for such an aggressive war, not justified by jus ad bellum, this would still mean the

regulative principle of peace applies to the war itself.

This stance vis-à-vis humanitarian warfare has additional significance in reflecting on the events

of the last decade. Arguments on both sides of the Atlantic in justifying warfare in relation to

Afghanistan, Iraq, Libya and Syria have been conducted with respect to the lexicon of just war. No

doubt Rawls would have welcomed the fact that it has become so firmly woven into the international

public political culture, particularly with respect to the principle of jus in bello. This must be

regarded as an improvement on the lack of such moral sensibility he identified in the Second World

War. Nevertheless, it is unimaginable for me that he would have welcomed the way the doctrine has

been loosened, and extended to the realm of humanitarian warfare - in such a way that it has been

used as a means for the justification of an escalation of violence and made a stable peace, in the

Middle East in particular, seem so far away. This can be viewed as the systematic misuse of just war

theory in exactly the way described by Kant, and it is my claim here that it is clearly opposed to the

spirit in which Rawls develops his own doctrine.

Indeed, politicians have been too quick to use the term “just” with regard to warfare in a manner

that sits uneasily with the tradition as illustrated by Rawls. If there were no recourse to the notion of a

just humanitarian war, and if they were forced to defend their decisions to go to war in terms of the

regulative principle of peace, it should prove far more difficult for them to justify warfare (I have

witnessed this myself in debate with my local Member of Parliament, who in defending his decision

to support the use of British military force in Syria in December 2015, quoted the dictates of just war

at length). Rather than act as a restriction, it is clear that contemporary just war theorists have built

accounts of just war, which do indeed look for the ‘full justification of the military actions of the

(2009) pp.47-112.

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specific protagonist in any conflict.’ 87 Were politicians not able to secure such categorical

justifications and claim the force of right on their side, it would be incumbent upon them to be to

articulate in more detail, with more transparency, and with greater justification exactly how these

actions are contributing to the cause of a stable peace in the long run and the extension of a worldwide

foedus pacificum – rather than turning to the trump card of “just war”.

Conclusion

The main aim of this paper has been to set out Rawls’ just war theory in a way that elucidates his

distinctive approach and its contribution to the contemporary debate, in particular his approach to the

problem of humanitarian intervention that provides an important, sceptical alternative to the recent

tendency to regard it as consistent with claims of right. In so doing I have challenged the reading of

Rawls as a conventional, Hegelian theorist who regards war as an immutable and legitimate part of

international relations that can be extended to humanitarian intervention. The argument was

developed first in reference to current interpretations of Rawls and the obvious tensions with his

commitment to the vision of international politics presented by Kant in PP. In working through these

tensions I elicited those significant and novel aspects of his theory, firstly arguing that for Rawls, as

with Kant, it is peace that is the regulative principle of war – even if this is couched within an

acceptance rather than rejection of just war theory. As such, Rawls has the same long term aims as

Kant but contrastingly believes that the principles of just war can lead to a stable, lasting peace. This

claim was buttressed by the second argument that this Kantian impulse breaks Rawls’ theory away

from its more Hegelian moorings, and this is illustrated clearly in his framing of the just war doctrine

within his non-ideal theory. In this respect, the principles of just war for Rawls can be seen as

principles of transitional justice, relevant to the bellicose condition we find ourselves in, but

ultimately working towards a realistic utopia; we cannot conceive of them as principles that are fully

just and permanently applicable to international politics, rather they are moral standards to be

maintained in a highly immoral and violent ‘hell’.

87 Williams, pg. 145

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Rawls’ just war theory is therefore novel and unique its Kantian underpinnings and the

circumspect and skeptical view of war, as characterized in his first work with the term ‘contingent

pacifism’. This novelty is most telling with regard to the problem of humanitarian intervention, an

action that for Rawls takes us towards the realm of moral unintelligibility where it is only the

statesman’s judgement and the regulative principle of peace that can provide the public justification

for war. There can be no claim to right in such violence, only an argument built on conscientious and

painstaking evidence and reasoning that can demonstrate to the public that it will contribute to a stable

and lasting peace in the long run. In the year of the Chilcot report we might regret that spurious

claims to justice - first in the name of self-defence and then in the name of a humanitarian mission -

were given greater importance than the questions, doubts and objections to the flimsy weight of

evidence offered up in the name of right.