Do We Need A Morality of War

5
Do We Need a ‘Morality of War’? 1

Henry Shue
5.1. GENERAL CONTEXT
Everyone understands that if wars are fought at all, acts are committed in them
that are utterly impermissible in ordinary life. War is constituted by assaults and
attacks that are intolerable in, at the very least, any other circumstances. Pacifists
have formulated powerful arguments that run, quite plausibly, from the imper-
missibility, in the context of ordinary life, of many acts characteristic of war to the
impermissibility of war itself. How can it be permissible to engage in a practice
that unavoidably and perfectly predictably, because characteristically, involves the
commission of acts that are impermissible in any other situation?
One alternative view is that as long as either wars are sometimes justified or
excused, perhaps in defence of the otherwise defenceless, or wars simply do in
fact continue, wrongly or even inexcusably, to be fought, some account of what is
permissible and impermissible in war ought to be formulated, especially if such
an account might reduce, although obviously not eliminate, the savagery of war.
And given the characteristic features of war—the fact that war precisely consists of
wounding and killing people and damaging and destroying objects—the specific
rules for conduct in war, if any notion of such rules can be intelligible at all,
must be radically different in content from the specific standards for conduct
in ordinary life. Yet, to be recognizable as normative standards, the rules for the
conduct of war cannot be detached from ordinary moral moorings, even if the
specific rules appropriate for ordinary contexts no longer apply. So, this suggestion
is that different specific standards from the specific standards that apply to ordi-
nary life—all life outside war—apply inside war. 2 The circumstances of war are so
different from the context of ordinary life that even when the same fundamental
moral touchstones are the reference, the differences in the circumstances yield
different specific guidelines.
1 For extremely helpful conversations about the issues in this chapter, I am grateful to Jeff
McMahan, David Rodin, Seth Lazar, and Per Ilsaas.

2 Obviously, there are twilight zones that are neither war nor what I am calling ordinary life, in
which it will be difficult to know which rules apply, if different specific rules apply to different contexts.
In general, this complication about grey areas is neither unusual nor avoidable. It is possible, although
not guaranteed, that if we can deal with the relatively clear polar cases, we can muddle through the
unclear ones. For this chapter, the clearer cases are in any case trouble enough.
88 Do We Need a ‘Morality of War’?
5.2. MMAHAN’S TWO TIERS
In an intellectually provocative series of essays now stretching over decades and

continued in this book, Jeff McMahan has been struggling with admirable honesty
and penetrating insight to confront in a morally responsible and philosophically
cogent manner the disturbing reality of the extreme differences between what is
thought acceptable in normal situations and what is thought acceptable in war,
mounting a powerful critique of dominant understandings of just war, including
Michael Walzer’s most influential version. In his chapter in this book, McMahan
has proposed what he calls ‘a two-tiered morality of war’ consisting of ‘the prin-
ciples of the basic, non-conventional morality of war’ and ‘the laws of war’. One
tier is a ‘morality of war’ and the other tier is laws of war. Strictly speaking, then,
McMahan’s account is not a two-tiered morality, and his label for it is misleading. 3
It is a two-tiered picture, but morality is on only one tier. The other tier contains
law.
I readily acknowledge that it is often useful to distinguish morality and law,
but the crucial distinction here, I will be arguing, is the cross-cutting distinction
between the standards, be they moral or legal, for ordinary life and the standards,
be they moral or legal, for war. If we were going to insist on having ‘tiers’, there
could then be four tiers: laws for ordinary life, laws for war, morality for ordinary
life, and ‘morality of war’. I do not propose to try to maintain the image of tiers,
but because morality and law are different, and ordinary life and war are different,
we must concede that in the abstract, these four categories are available. The
underlying purpose of this chapter is to complicate the simplistic 4 × 4 picture
generated by two kinds of standards cutting across two kinds of contexts.
One crucial difference between McMahan and me will be over the degree of
continuity between the specific standards, whether moral or legal, for ordinary
life and the specific standards, whether moral or legal, for war. I am not suggesting
that there are two separate moralities, one inside war and one outside. Morality
is all of a piece; the fundamental moral considerations are the fundamental moral
considerations. But the first thesis I will be advancing is: there is less similarity
than McMahan assumes between ordinary life and war and, therefore, less analogy
between the specific standards respectively appropriate to each. McMahan’s focus
is the distinction between morality and law. 4 My focus is the distinction between
3 David Luban has briefly suggested a kind of two-morality solution to some of these same
problems—see Luban, David, ‘Preventive War and Human Rights’, in Henry Shue and David Rodin
(eds.), Preemption: Military Action and Moral Justification (Oxford: Oxford University Press, 2007).
Crudely speaking, on Luban’s picture, as on the one I will sketch here, the standards for war are
farther from the standards for ordinary life than they are on McMahan’s picture. Gregory Reichberg
suggests that McMahan’s two tiers parallel Grotius’s distinction between internal justice and external
justice—see Gregory M. Reichberg, ‘Just War and Regular War: Competing Paradigms’, JUW, n. 50.
If so, McMahan could be suspended across the same deep—unbridgeable?—dichotomy that haunts
Grotius.
4 In an influential earlier essay, McMahan wrote: ‘It is important to understand that the account I
have developed of the deep morality of war is not an account of the laws of war. The formulation of
the laws of war is a wholly different task . . . ’—see McMahan, Jeff, ‘The Ethics of Killing in War’, Ethics,
ordinary life and war. My distinction cuts across his distinction and, for a start,
raises doubts about analogies within both morality and law. 5
A second, more significant difference concerns whether, once one has the
morally best legal rule specifically for a certain kind of situation, it is useful to
assume that in competition for each agent’s allegiance, there always remains an
alternative specific moral rule. McMahan does not make this assumption regard-
ing ordinary life, but his manner of dealing with conflicts between morality and
law in the case of war reveals that he makes the assumption regarding war. My
suspicion is that it is because he cannot accept how disanalogous the content of
even the best laws for war must be (my first thesis) that he feels compelled to
cling—disanalogously—to a competing ‘morality of war’. I realize that this second
thesis must be opaque at this point and hope to make it clearer in due course. 6
Michael Walzer, whose basic position on the distance between the contexts
of peace and war I will be defending against McMahan’s critique, has, as usual,
put the point beautifully: ‘what Jeff McMahan means to provide . . . is a careful
and precise account of individual responsibility in time of war. What he actually
provides, I think, is a careful and precise account of what individual responsibility
in war would be like if war were a peacetime activity.’ 7 In writing that McMahan
would be correct if war were a peacetime activity, Walzer is, I think, making the
same observation that I intend to make in saying that the set of specific standards
appropriate to war is more distant from the specific standards for ordinary life
than on McMahan’s picture, granted that the underlying moral touchstones are
the same. All this also remains to be explained. Phrased negatively, my first thesis
is that McMahan’s ‘morality of war’ is not intelligible except as the morality of
ordinary life misapplied to the radically different context of war. My second still-
opaque thesis is that where the laws of war are morally justified, there is no func-
tion to be performed by a competing ‘morality of war’ consisting of alternative
rules. We do not need a ‘morality of war’ if we can get a morally justified set of
laws of war.
McMahan and I agree, I believe, that one ought to aim at the morally best
laws of war, recognizing fully well that these laws will (justifiably) certainly differ
from the specific moral standards that apply to life outside war and possibly
depart from the existing laws of war, the Law of Armed Conflict (LOAC) as it
currently is formulated. 8 The laws would be ‘the morally best’ in that they would
114/4 (July 2004), 730. I take the ‘morality of war’ in this book to be the successor to the ‘deep morality
of war’ of 2004.
5 Fundamentally, then, our differences concern the morally relevant features of war. In disagree-
ments about morally relevant facts, it is difficult to distinguish the empirical from the moral elements
of the differences. But to some degree our disagreements are empirical ones about war.
6 See especially the section below on ‘McMahan on Conflicts Between Morality and Law’.
7 Walzer, Michael, ‘Response to McMahan’s Paper’, Philosophia, 34 (2006), 43–5, at 43. Walzer is
responding to a different paper containing a similar position. For this citation, I am grateful to, of all
people, Jeff McMahan.
8 For an authoritative recent survey of the customary principles of the LOAC, see Henckaerts,
Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, vol. I: Rules
(Cambridge: Cambridge University Press, 2005). For the conventional principles, see Roberts, Adam
have taken as much account as reasonably can be taken of fundamental moral

considerations, given the critical facts that they must function as laws and that
they are laws for war, which is extremely different from, and in many respects the
opposite of, ordinary life. For example, in ordinary life, one is bound generally
to try to avoid harming others, while in war, one’s purpose, for a time, is to
harm (certain) others—enemy forces—as decisively as possible. The goal is deeply
morally informed international laws, but laws that can function inside deadly
combat. These must, I suggest, be unlike ordinary laws. 9
The rules for war will ordinarily take the form of black-letter law, in part,
for most of the usual reasons, such as the clarity and reciprocity that promote
compliance. 10 But events control the extent to which the best rules are actually
expressed in international law, events that depend heavily on politics because
states determine what in fact becomes international law. To the extent that evil
states dominate the international system at any given time, international law may
be corrupted. When, for example, a hegemonic state makes wide use of torture
during war, international laws against torture may be undermined. 11 So, we can
always ask whether an existing element of the LOAC is the morally best law
possible for the situation it covers or is an unprincipled compromise produced
by wrongful state practices or by arbitrary refusal to ratify good treaties.
There are, then, specific standards that apply to ordinary life and specific
standards that apply to war. The laws that should govern war are the morally
best laws for war. Where the actual laws of war (the LOAC, conventional and
customary) are not the morally best laws for war, the actual legal provisions ought
to be changed. My second thesis, contrary to McMahan, is that there is no ‘basic,
nonconventional morality of war’ consisting of moral rules specific to war that
always competes with even the morally best laws of war and creates conflicts
between even the best laws for war and this residual ‘morality of war’ imagined
by McMahan. The actual laws of war (the LOAC) may depart in more or fewer
respects from the best laws for war; sometimes this divergence will rest on a failure
of the laws of war to give moral considerations due weight. But there is no place
for a separate ‘morality of war’ in McMahan’s sense that remains in perpetual
competition with the morally best laws of war (and is also distinct from the specific
moral standards for ordinary life).
In ordinary life, the applicable standards include both morality and law; as
McMahan himself notes, law sometimes departs in morally justifiable ways from
and Guelff, Richard (eds.), Documents on the Laws of War, 3rd edn. (Oxford: Oxford University Press,
2000).
9 I lack the space here, even if I had the ability, to lay out persuasively how very different war is
from peace. A good start, for those not already aware, would be to read two novels, Ninh, Bao, The
Sorrow of War (London and New York: Vintage, 2005) and O’Brien, Tim, The Things They Carried
(New York: Broadway Books, 1998). I am grateful to Per Ilsaas for recommending Bao Ninh and to
Cheyney Ryan, for Tim O’Brien.
10 See Roberts, Adam, ‘The Principle of Equal Application of the Laws of War’, JUW, for persuasive
argument appealing to the role that laws of war must play if they are actually to do any good.
11 Fortunately, not necessarily, the legitimacy of the state engaging in torture may be what is
undermined.
what morality might require if the context did not require a law, and sometimes
we rightly abide by the law, not by what morality would have required in the
(hypothetical) absence of law. McMahan and I agree, I believe, that morality is
all of a piece, but that what one ought to do is complicated by, among other
considerations, the functional requirements for good laws. Morality sometimes
requires that laws governing ordinary life be different from the principles of a
hypothetical morality operating in the absence of law. But we do not have to
choose, in ordinary life, between what the morally best laws permit and require
and what morality permits and requires, because morality requires that, where we
need laws, we formulate the best laws and then follow them where they apply. We
can take the morally best action by obeying the morally best law, where we ought
to follow a law. We may of course have to choose between the actual laws and what
morality requires the law to be, but that is because, and when, the actual laws are
not the best laws.
The same, I will argue, is true in the case of war. This is one point at which an
analogy does hold. McMahan recognizes both the morality of ordinary life and the
best law for ordinary life, which form a kind of division of labour so that where the
best law applies, moral rules need not compete (because the best law has already
adequately taken morality into account). But in the case of war, the law of war
seems, according to McMahan, forever to conflict with the ‘morality of war’, and
indeed one is evidently often intended by him to side with the ‘morality of war’
against even the best laws of war. 12 This would leave it entirely unclear what it
could mean for a law of war to be morally justified: if the law were fully morally
justified—if it were the morally best law—why would ‘morality of war’ override
it? And what is this ‘morality of war’, if not what would be required by the moral
rules, if war were not as different from ordinary life as it actually is—if war were,
in Walzer’s phrase, a peacetime activity? Instead, the differences between ordinary
life and war require us to try to formulate the morally best rules for war to do the
job that the rules for ordinary life—morality and law—cannot do, namely, to deal
with the extraordinary mass violence of war. So, the content of even the morally
best laws for war will depart greatly from both the specific morality and specific
law for ordinary life (my first thesis), but the morally best laws for that violent
context, though very different in content, ought—morally ought—to be obeyed
(my second thesis).
5.3. THE MORALLY BEST LAW FOR ORDINARY LIFE
Here is one of McMahan’s examples of how in ordinary life outside war, morality
can require a law that departs from what morality would appear otherwise to
require:
Another possible example of the necessary divergence between law and morality concerns
the penalty for rape. Suppose for the sake of argument that it is true that some people can
12 See below the section, ‘McMahan on Conflicts Between Morality and Law’.
deserve to die and that the death penalty can be justified in some cases. And suppose it is
also true that rape is such a serious crime that some rapists can deserve to die. It would
nevertheless be wrong—indeed, morally wrong—to punish rape with death. For if rape
were punishable by death, the punishment for rape would be no worse than the punishment
for rape and murder. It would then be in the interests of rapists to kill their victims, since
that would reduce their risk of identification and capture but would not increase the penalty
they would face if caught. 13
For present purposes, I will simply accept some questionable assumptions built
into the example. The underlying challenge is rightly seen to be that laws serve
multiple purposes. One purpose of a law specifying punishment for rape is to deter
rape; for the purpose of deterrence, perhaps the penalty of capital punishment
would be more effective than lesser punishments, as the example assumes. But
another purpose is to protect rape victims from additional harm, and specif-
ically murder; for that purpose, the penalty of capital punishment is assumed
to be positively counter-productive. Accordingly, as McMahan argues, it seems
reasonable—naturally various ones of these assumptions could be debated—to
choose a penalty less than capital punishment, even if capital punishment could
be justified as a matter of desert, in order to avoid creating incentives for murder
on the part of the kind of person who would commit rape and thereby avoid
provoking the deaths of some rape victims, even if the more severe penalty would
have prevented, by deterrence, more rapes of other victims by other potential
rapists. McMahan is obviously balancing the number of deaths prevented by not
making capital punishment the penalty for rape against the number of rapes not
prevented by not adopting the death penalty; I do not want to quarrel here with
the reasoning internal to the example.
Instead, I want to note two points. First, this is not actually an example of
‘divergence between law and morality’. It is a divergence between the best law,
moral considerations (like the assumed difference in moral seriousness between
death and rape) taken into account, and what morality might otherwise have
required if one were not designing a system of general law. One might think:
rape is an awful crime, so rapists deserve to be shot. Assume this judgement
about desert is correct: rapists do deserve to be shot. This is a moral judgement:
a judgement about which punishment is deserved by which acts. Then, if we were
not trying to create a legal structure, and we simply had one rapist who ought to be
punished, ‘morality’, or anyhow the particular judgement about desert indicating
that rapists deserve to be shot, would require shooting him.
But, McMahan’s point is, since we are designing a general legal structure, we
have to watch out for perverse incentives across society as a whole and not create
laws that give people incentives to murder victims of one crime (rape) in hope of
escaping capture and punishment for this original crime by eliminating the victim
as a witness. This too, however, is a moral matter: it is of moral significance
whether in our efforts to give rapists the punishment they deserve we cause victims
who have already suffered rape to suffer murder as well by, in effect, suggesting to
rapists this method of eliminating the crucial witness to the original offence. The
13 McMahan, Jeff, ‘The Morality of War and the Law of War’, JUW, 33–4.
law, then, is not diverging from ‘morality’ in some overall sense. It is diverging
from what desert specifically is assumed to require, but the departure from the
moral judgement about desert is for the sake of implementing another moral
judgement, namely, that one ought not to provoke murders while trying to deter
rapes. ‘Morality’ is on both sides, or rather, at least one moral consideration is on
each side. In deciding not to have a law penalizing rape with capital punishment,
we are opting against one implementation of a specific moral judgement about
desert, as stipulated for the example, and in favour of an implementation of a
moral judgement about saving the lives of some people even at cost of allowing the
deterrable rapes of some other people. The law has not diverged from ‘morality’;
it has diverged from one conception of desert in favour of a moral judgement that
murder is too terrible to be allowed to increase in order to have fewer rapes, that
is, to deter more rapes. 14
We may of course simply make the wrong judgements in the course of deciding
which law to have; in that case, we do not have the morally best rape law. But
if we make the morally best judgements, morality has been properly taken into
account in the formulation of the law. There is, then, not—this is my second
and main point about McMahan’s example—some residual ‘morality of rape’
that tells us that from ‘the’ moral point of view we really ought to be executing
rapists, even though the morally best law refuses to execute rapists. Certainly, if
I sincerely believe that rapists deserve to be shot, I might well regret not being
allowed to shoot a particular rapist. What I cannot coherently think, however, is
that although contexts like the punishment of rapists ought to be governed by law,
and the best law does not permit the execution of rapists, I still ought, all things
considered, to execute this rapist. If there were a ‘morality of rape’ consisting of
specific guidelines for action perpetually in tension with the ‘law of rape’, we would
then always have to decide whether to act on the best law or on ‘the morality’. 15 We
would face, indeed, the artificial and incoherent situation that, I will later argue,
McMahan’s two-tiered picture generates in the case of war.
5.4. THE MORALLY BEST LAW FOR WAR
Immediately after the rape example, McMahan makes the same general point
about the relation between law and moral considerations for the case of war that
he has just made for the case of ordinary life:
14 Surely, the relative numbers of murders and rapes is at least relevant. Does one allow, that is, fail
to deter, any number of deterrable rapes (however large) in order to avoiding increasing the temptation
to commit any number of murders (however small) that would otherwise not occur? But here I am
taking the example as presented.
15 Obviously, if the existing law is not the morally best law, it is coherent to think that I morally
ought to disobey it and follow a moral rule instead, for example, I might engage in civil disobedience
in hope of improving the law. But naturally, the morally best course may or may not be to disobey less
than ideal laws, depending on many considerations other than the content of the law. I return to this
briefly later in the text.
Similar problems arise in the international law of war. Ideally, we would like for the laws of
war to coincide as closely as possible with the requirements of morality. But here too moral-
ity itself requires that the formulation of the law take account of the likely consequences of
its promulgation and attempted enforcement. The laws of war must, for example, mitigate
and contain the destructive effects of war rather than exacerbate them. 16
Here too, then, I suggest, we could not intelligibly be left with some free-standing
residual ‘morality of war’, any more than in the earlier case we still confronted an
ineliminable ‘morality of rape’ continuing to make specific demands upon us for
actions different from those mandated by the morally best law for the same cases.
If indeed ‘the formulation of the law take[s] account of the likely consequences
of its promulgation and attempted enforcement’ in the way morally appropriate
for war, moral considerations will have been incorporated in so far as they can be
into the law, and we will have in the law the morally best rule for war. If this is a
situation in which we need general law, this law ought morally to be obeyed.
Of course, it never ceases to be reasonable to ask: are the actual laws of war the
morally best rules for war? Surely not all, at present. 17 The appropriate question
is indeed: which law applicable to war best embodies our moral commitments?
Unfortunately, there are confusingly many apparent options. Four possibilities
make sense. It may be that (1) the existing law of war for the type of case at hand
is the morally best rule for this type of case and should be complied with generally
and in the current instance; (2) the existing law of war is not the morally best rule
for this type of case, so the law should be reformed in order to embody moral
concerns more adequately (and meanwhile one (a) might obey the existing law
or (b) might act in accord with what the reformed law—the morally best rule—
would say, depending partly on considerations other than the differences in the
content of the two laws, such as how best to bring about reform); and (3) the
existing law of war for the type of case at hand is the morally best rule for this
type of case and should be complied with generally, but not in the current instance
because the current instance is genuinely exceptional and, like all truly exceptional
instances, could not be reflected in any general rule. I will leave aside such genuine
exceptions to all law and morality (as does McMahan). It is also possible that
16 McMahan, Jeff, ‘The Morality of War and the Law of War’ JUW, 34. An alternative interpretation
of McMahan would be that the reference to ‘likely consequences’ indicates a probably inadvertent but
complete slide into consequentialism for either the case of war, the case of law, or at least the case of
laws of war. He has earlier written: ‘The formulation of the laws of war is a wholly different task (from
the formulation of the morality of war), one that I have not attempted and that has to be carried out
with a view to the consequences of the adoption and enforcement of the laws or conventions’—Jeff
McMahan, ‘The Ethics of Killing in War’, 730. Yet, I take it that when ‘morality itself requires that the
formulation of the law take account of the likely consequences . . . ’, this is the same morality at whose
centre lies the moral liability of individuals, as we will see below. That is, I take the morality to be one
that takes both social consequences and individual responsibility seriously, as any sane morality must;
we must consider the consequences because our (non-consequentialist) morality requires us to. I am
grateful to David Rodin for discussion of these issues.
17 I have many complaints about the LOAC, at least as usually interpreted—see, for example,
Shue, Henry and Wippman, David, ‘Limiting Attacks on Dual-Use Facilities Performing Indispensable
Civilian Functions’, Cornell International Law Journal, 35/3 (Winter 2002), 559–79.
(4) there are gaps in the coverage that can be provided by law and these gaps
are covered only by moral principles (or even moral virtues, like honour, not
formulable into principles)—this would be the situation in which the best rules
turned out not all to be laws; instead, some of the best ‘rules’ might be moral
virtues appropriate to gaps between laws. The morality for the gaps between the
laws would not, however, compete or conflict with the laws in the cases that were
covered by the laws.
The crucial point here is that what we cannot, however, make sense of is the
following: (5) the existing law of war for the type of case at hand is the morally
best rule for this type of case, but one ought always or often to disregard this law
of war and instead comply with a principle from the ‘morality of war’ that applies
to the same type of case and makes conflicting demands, such as requiring what
the law of war forbids or forbidding what the law of war requires. If the law of war
in question is the morally best rule for the kind of case it covers, one morally ought
to comply with the law unless—case (3) above—the instance at hand is genuinely
extraordinary—‘the exception that proves the rule’—in which case one should
make an exception to the law, but one would have no reason to change the law
and there would also be no applicable general moral principle. If the law of war
in question is not the morally best rule for the kind of case it covers, one morally
ought to modify the law so that it more adequately embodies the requirements of
morality. 18
What is not coherent is any suggestion that alongside the morally best rules
of war (some of which may have become, through custom or treaty, elements in
the LOAC) stands a system of moral rules for war such that the content of the
moral rules for war is different from the content of the morally best rules for war,
embodied in law, and that one always or usually faces the question, shall I follow
the best rule for war (which may be international law) or follow the moral rule
for war applicable to this same case? Why is this incoherent? Because there is no
intelligible meaning to be assigned to ‘the specific moral rule more appropriate
to the case than the morally best rule for that case’. The best rule—sometimes,
a morally fully justified law—will have taken morality into account to the extent
that it can be taken into account in the context of war. Any ‘purer’, stricter, or more
demanding rule would be appropriate only if war were a peacetime activity.
Many of our specific moral rules, tragically, do not apply in war; they apply
only to the rest of life. This is despite the fact that the same fundamental moral
considerations are still the final touchstones for all human action. War is extremely
different from ordinary life in that, for example, much more killing and violence
have to be tolerated, if war can be tolerated, because wars are competitions in
lethal violence and destruction. Clearly, any rules for war, irrespective of the extent
to which they are law, morality, or both, will often have to settle for limit where
18 How one behaves meanwhile is a difficult but separable matter that depends on such considera-
tions as whether the system of law is sufficiently stable to be able to tolerate conscientious disobedience
and whether reform is more likely with obedience or with conscientious disobedience; we can leave
these questions aside for the sake of focusing sharply on the content of various laws and principles.
the rules for ordinary life (morality and law) contain prohibition. Where the rules
for the rest of life say, ‘do not harm’, the rules for war say, ‘if you must for a time
harm these, still do not harm those’. Terrible acts may be done, but only within
limits. 19 In the resounding words of the Preamble to the St. Petersburg Declaration
of 1868: ‘The only legitimate object which states should endeavour to accomplish
during war is to weaken the military forces of the enemy.’ 20 Death and destruction
are not prohibited; they are constrained. The best that war can be is terrible acts
limited. 21 And there is a limit on the limits. Violence sufficiently limited is not war
(and often all the better for it).
This is why, unless we can eliminate war, we need dedicated rules for war to
protect what we can even during war: rules specifically for war. Laws for war
cannot echo many ordinary moral rules—specific rules for the rest of life—such
as many complete prohibitions on the use of force and on the infliction of injury
and death. Otherwise, they would outlaw war, not limit war. 22 But the hope is
that the rules for war can nevertheless take into account some bedrock moral
considerations, such as the evil of cruelty and the evil of pointless and excessive
killing and destruction. 23 But once the rules for war had taken into account all
the moral considerations that the conduct of a war could take into account, one
would have what I am calling the morally best rules for war. Let me repeat: I do
not assume that we already know the morally best rules for war, much less that
they have already been expressed in the LOAC—I have serious criticisms of some
existing laws. I am simply specifying an abstract category that we aspire to satisfy:
the morally best rules for war. Current laws are surely not all in that category. The
point is simply that the morally best rules of war would have taken into account
all the considerations from our fundamental morality that they could reasonably
take into account. McMahan seems to me, in effect, to assume that the laws of war
are not now, and could never be, the morally best rules for war. I do not see why
not.
19 For the fundamental significance of limits, see Camus, Albert, The Rebel: An Essay on Man in
Revolt (New York: Vintage Books, 1956). ‘If on the other hand rebellion could found a philosophy it
would be a philosophy of limits, of calculated ignorance, and of risk. He who does not know everything
cannot kill everything’ (289).
20 Roberts and Guelff, 55. This has become Rule 1 of the customary law of war: ‘The parties to the
conflict must at all times distinguish between civilians and combatants. Attacks may only be directed
against combatants. Attacks must not be directed against civilians.’—Henckaerts and Doswald-Beck, 3.
21 One can always still ask: is that good enough? Is pacifism correct? But this path does not lead to
a competing ‘morality of war’.

22 Perhaps we should be outlawing war, not trying to limit it. Here, I assume only that attempting
to see how limited war might realistically be is a vital part of the investigation of whether trying to limit
it is preferable to trying directly to eliminate it. If it cannot be limited much at all, we should perhaps
simply resist it as best we can (if resistance is the best means to elimination). Of course, incremental
limitation could be the best, but indirect, means to elimination. Or elimination might have nothing to
do with ‘outlawing’. If the road were clearer, we might be farther along it.
23 If someone claimed that there were two totally separate moralities without overlap, a completely
distinct morality for war and a morality for the rest of life, we would need to ask, among other
questions, in what respect this ‘morality of war’ was a morality at all. What would make it a morality
if it shared none of the concerns of morality as we ordinarily understand it?
Indicating respects in which even the best rules for war still diverged from the
rules of morality governing ordinary life would always remain a fully worthwhile
exercise, as long as one understood that this would not entail straightaway that
better rules were available, for war. The morally best rules for war would surely
always be very different in content from the moral rules guiding ordinary life. The
divergence would be a measure of how far even war at its least awful departs from
ordinary standards of morality, and the divergence might well lead one to con-
clude that war cannot be justified—that pacifism is the only morally sustainable
position. But what is not correct is any assumption that wherever even the morally
best rules for war depart from what morality requires in ordinary life, the morally
best rules for war are inferior to something that can be called the ‘morality of
war’. This ‘morality of war’ can only be (a) the rules that would be applicable to
ordinary life—that would be applicable to war if only war were not as different
from ordinary life as it is in fact—or (b) the content for a morally better version
of a law of war. If the latter, it should be adopted as a law of war in place of the
current law to which it is superior as a rule for war. If the former, it should be
ignored as inapplicable to war and applicable only to ordinary life (or to war as a
peacetime activity).
5.5. THE SPECIFICS OF WAR: ‘MORAL LIABILITY TO ATTACK’

VERSUS LEGITIMATE TARGETS
So far I have been exceedingly—perhaps excessively—abstract. It is well past time

to indicate specifically where McMahan’s conceptual framework falls into the dif-
ficulties that I have sketched. Late in his chapter, he writes: ‘Thus far I have argued
that at least in present conditions, the laws of war must diverge substantially from
the basic, nonconventional morality of war.’ 24 I readily grant that at present some
actual laws of war are not the morally best rules for war; that is, the laws of war
can be changed in ways that would reduce the extent of their divergence from the
fundamental requirements of morality. Both McMahan and I want to judge the
laws of war with the moral considerations that also underlie the moral rules for
ordinary life as somehow the touchstone. This is what I mean by aiming at the
morally best rules for war.
The questions are exactly how and to what extent fundamental moral con-
siderations can serve as the touchstone for the laws of war. McMahan seems to
me systematically to beg the question against the actual laws of war by simply
assuming that there is something appropriately called ‘the morality of war’ and,
most important, that the content of the ‘morality of war’ is often essentially the
same as the content of the moral rules applicable to ordinary life. He assumes
that there is a close analogy between ordinary moral rules and the rules in his
‘morality of war’ (and that the laws of war ought to express these highly analogous
24 McMahan, Jeff, ‘The Morality of War and the Law of War’ JUW, 36.
rules). Immediately after the sentence quoted just above, he continues: ‘In general,
morality forbids unjust combatants to attack just combatants, but the law [of war]
permits this. The law [of war] forbids the intentional killing of noncombatants
and prisoners of war, while in some cases morality may permit or even require the
killing of persons in these legally protected categories.’ 25
Now the questions are (1) which moral rules sometimes require the execution
of prisoners of war (POWs) and non-combatants, which the existing laws of
war prohibit, and forbid unjust combatants to attack just combatants, which the
existing laws of war permit? and (2) how do we know that these rules are the
rules applicable to war-time situations? McMahan is claiming that the morality
in question is the morality of war; I believe that it is the morality for ordinary
life, unadjusted for the differences between war and ordinary life, but nevertheless
called ‘the morality of war’ and making impossible demands upon the conduct
of war. At bottom, McMahan is arguing by analogy from ordinary situations to
situations in war that are crucially disanalogous; the assumption that the two
cases, ordinary life and war, are analogous begs the question against the laws of
war. The fundamental issue is: when can the laws of war be analogous to the
moral rules governing ordinary life and when can they not? McMahan’s ‘morality
of war’ is the rules that war would have if it were not as different from ordinary life
as it actually is. It is ordinary moral rules misapplied to war by ignoring critical
differences between the two contexts.
The crucial bridge by which McMahan attempts to connect what I believe can-
not be connected is his insistence that moral liability to attack is a necessary con-
dition of attack during war. How could the ‘morality of war’ sometimes allow the
killing of POWs, which is strictly prohibited by the laws of war? 26 Because some
POWs are, according to McMahan, morally liable to attack because of their moral
responsibility for an unjust war. Why are ‘unjust combatants’, that is, combatants
fighting for an unjust side in a war, forbidden from attacking ‘just combatants’,
that is, combatants fighting for a just side in a war? Because just combatants are
not morally liable to attack since they are not morally responsible for an unjust
war (since their war is just): moral liability is necessary. McMahan’s account of the
content of liability to attack is: ‘In war, the criterion of liability to attack must be
somewhat broader than it is in cases of individual self-defence. I believe it is this:
a person is morally liable to attack in war by virtue of being morally responsible
for a wrong that is sufficiently serious to constitute a just cause for war or by being
morally responsible for an unjust threat in the context of war.’ 27 The problem,
however, is not so much with the specific content of the conception of liability as
with the role assigned to considerations of individual liability. 28
25 McMahan, Jeff, ‘The Morality of War and the Law of War’, JUW, 36.
26 See 1949 Geneva Convention III Relative to the Treatment of Prisoners of War; in Roberts and
Guelff, 243–98.
28 Of course, if the content of a conception of liability diverged sufficiently from the content of the
conception standard in ordinary morality, the modified conception might be able to play some role
within war. I am grateful to Per Ilsaas for pointing out pitfalls here.
The fundamental problem with McMahan’s view, I believe, is the assumption

that it would ever generally be possible during deadly combat to make judgements
about the moral liability to attack of individuals (whatever the content of the
criterion of liability, short of a highly non-standard conception). At most, combat-
ants can sometimes make judgements about threat, which is one traditional basis
for considering others to be combatants; being ‘non-innocent’ means threatening
harm. 29 But to require regular judgements of individual moral liability would
be to require that the combatant judge not only whether there is a threat of
harm but also whether the threat is wrongful in each individual case. This would
require making discriminating judgements about features of specific individuals
in a situation in which many individuals, most of whom he or she cannot see, are
routinely and relentlessly, hour after hour, day after day, trying to kill him or her.
This is not generally possible, however morally desirable. 30 One could not return
fire from an adversary prior to establishing that the source of the fire was ‘morally
responsible for an unjust threat’.
Combatants have neither the information nor the opportunity for reflection
necessary for making such a multitude of individual judgements about unknown
and often unseen/unheard but deadly adversaries, and a requirement of making
such impossible judgements is inappropriate to the circumstances of war. 31 Fun-
damentally, this is a matter of ought presupposes can. 32 What would a criterion
of individual moral liability mean for a pilot flying an Air Force bomber? A
gunner on an aircraft carrier? How do they check potential targets for liability
to being killed? McMahan is attempting to inject into war a requirement for the
determination of individual moral liability that is indeed essential to ordinary
life but is usually inapplicable to warfare between large organized forces. As Tony
Coady convincingly argues, it is not possible, however morally desirable it would
be if it were possible, in the circumstances of war to avoid operating with general
presumptions. 33 This is not an appeal to consequences—it is an observation
29 Of course, being threatening does not entail being morally liable to attack. Adam Roberts has
argued convincingly that the equal application of the laws to both sides does not presuppose any thesis
of moral symmetry or of equal moral liability to attack. Moral liability in McMahan’s sense drops out of
the picture—see Roberts’s chapter in this book. I am suggesting that it is impossible to put individual
liability into the picture.
30 As Seth Lazar has noted, in ordinary life as well, one sometimes lacks the information and
time to make discriminating judgements of moral liability. But such situations are the exception in
ordinary life, while they are the overwhelming rule in war, where one usually will not even be able
to identify specific individuals. If ‘stand-off ’ weapons are employed, as they increasingly are, one may
never perceive any particular individuals before killing or being killed by them.
31 The underlying mistake, as Per Ilsaas is demonstrating in The Concept of Evil and the Justification
of War (D.Phil., Oxon., in progress), is the focus on features of individuals—individual combatants or

individual bystanders—rather than on the role of combatant in the context of war. The presence or
absence of moral liability to attack is the specific individual feature on which McMahan focuses.
32 Again I am grateful to Seth Lazar for seeing this clearly.
33 Exceptional cases in which information is adequate for judgements of moral liability will of
course occur when, as Coady notes, ‘enemy troops are palpably in the right, or offer no serious threat.
Indeed, soldiers who realise that their own war-fighting is unjust are doing grave wrong in killing
enemy soldiers’. But Coady allows for ‘a presumption that warriors are entitled to direct lethal force
about what is possible. The impossibility within war of making many important
ordinary moral discriminations is a large part of what is so alarmingly tragic about
war and is, once again, one of the main reasons why wars must not be entered into
as lightly as they recently have been.
The concept of legitimate targets in the LOAC strongly differs from the concept
in ordinary life that someone is morally liable to attack. 34 McMahan is proposing
to substitute the latter for the former, which would be a revolutionary change. War
is not about killing people who are morally liable to be killed; it is about killing
people who may otherwise kill you. This may be a good reason to reject war, as
pacifists do; it is not a feature of war that can be reformed. McMahan is proposing
a kind of war that respects rights (by not killing individual persons who are not
morally liable to be killed). There is no such kind of war in which death is generally
allocated so individually and so discriminatingly. 35
Over the years, in a number of articles, McMahan has grippingly, and dis-
turbingly, illustrated how very divergent are the respective operative notions of
who may be permitted to be attacked in ordinary life and in war. My sugges-
tion, however, is that the question is begged against the admittedly different—
even alien—notion at the heart of the existing laws of war. It is only assumed,
not shown, that in war some kind of individual moral liability to attack largely
similar to the conception embodied in the moral rules of ordinary life can be, and
only then ought to be, employed rather than the distinctive concept of legitimate
targets that has evolved through the centuries of moral reflection on war. This
amounts to a bad argument by analogy, based on presupposing that war is not
sufficiently different from ordinary life that it must employ a different kind of
criteria to specify who and what may properly be attacked. Since war consists
of mutual assaults on an organized and massive basis, any assumption of the
applicability of any criterion of individual liability is thoroughly implausible.
Let us look in a little more detail at the two putative divergences quoted above
from McMahan, beginning with ‘in general, morality forbids unjust combatants
to attack just combatants, but the law permits this’. 36 In fact, morality—that is the
moral rules for ordinary life—has no position on, and does not mention, ‘combat-
ants’, because ordinary life contains no combatants. In ordinary life, everyone—
both the cops and the robbers—are civilians, and ‘civilians’ has its meaning by
contrast with ‘combatants’. Combatant is a role unique to warfare, is created by the
laws of war, and is given a technical definition by the LOAC involving requirements
against opposing warriors where they have some plausible warrant for seeing them as wrongdoers or
attackers’. The presumption applies to opposing warriors collectively; they cannot be judged one by
one in the midst of combat—see Coady, C. A. J., ‘The Moral Status of Combatants’, JUW, 164.
34 For the operative account of legitimate targets, see 1977 Geneva Protocol I, Art. 50–8; in Roberts
and Guelff, 448–53.

35 The most that we can usually hope for, I believe, is the vital discrimination between combatants
and non-combatants already shakily (in the case of air-strikes) required by the LOAC, on behalf of
which, I believe, we should dig in firmly. See Shue and Wippman, ‘Limiting Attacks on Dual-Use
Facilities Performing Indispensable Civilian Functions’.
to distinguish oneself from the civilian population, thus defining combatants in

part by essential reference to civilians. 37 It is impossible to be a combatant in the
strict sense specified in the laws of war outside war any more than one can be a
shortstop outside of baseball, a senator outside of politics, or a defence attorney
outside the judicial system. The norms of combatancy are constituent norms.
They are addressed to combatants, and persons qualify as combatants only to the
extent to which they abide by the norms.
Needless to say, the grey areas in the borders between combatants and civilians,
where guerrillas, insurgents, irregulars, and many others operate, are extremely
messy. There is a complex spectrum between the paradigm combatant and the
paradigm civilian; the criteria of a combatant in the 1977 Protocol I are the subject
of international dispute. One can always ask, is an insurgent more like an armed
civilian or more like a combatant? The Bush/Cheney Administration has created a
largely diversionary furore—to distract attention from its policy of the widespread
use of torture—over ‘unlawful combatants’. 38 Nevertheless, the only evident way
of bringing any intellectual order into the chaos of reality seems to be to use
combatant and civilian as opposite poles and try to locate everyone, including
unlawful combatants, somewhere in relation to these poles.
Thus, in ordinary life outside war and other military conflict, there are no com-
batants, and the moral rules for ordinary life take no positions about combatants.
Of course, husbands beat their wives, wives poison their husbands, drunks brawl
in alleys, burglars wound home-owners, jailers assault their prisoners, parents
beat their children, students rape their dates, and muggers cosh strollers. Outside
war there is plenty of killing, wounding, and assaulting, and the moral rules
for ordinary life are centrally about protection against violence and what I have
called social guarantees for security rights. 39 But there are no combatants—only
civilians.
Consider muggers and strollers. According to both the moral rules and the
legal rules for ordinary life, if a mugger assaults a stroller, the stroller has a
right to defend himself or herself by counter-attacking against the mugger. If
37 The traditional criteria are listed in 1907 Hague Convention IV, Annex, Section I, Chapter I,
Article 1; in Roberts and Guelff, 73. Combatants and civilians are defined by contrast with each other.
The current criteria (rejected by the United States) are given in 1977 Geneva Protocol I, Section II,
Articles 43 and 44; Roberts and Guelff, 444–5.
38 For a sensible discussion of ‘unlawful combatants’, see Roberts, Adam, ‘The Laws of War in the
War on Terror’, in Borch, F. L. and Wilson, P. S. (eds.), International Law and the War on Terror,
International Law Studies, vol. 79 (Newport, R.I.: Naval War College, 2003), 175–230. For clear and
compelling evidence of an official US policy of torture of prisoners, see Benjamin, Mark, ‘The CIA’s
Torture Teachers’, Salon.com, 21 June 2007; Eban, Katherine, ‘Rorschach and Awe: The War on Terror’,
Vanity Fair, 17 July 2007; Rose, David, ‘Revealed: MI5’s Role in Torture Flight Hell’, The Observer, 29
July 2007; and Meyer, Jane, ‘The Black Sites: A Rare Look Inside the C.I.A.’s Secret Interrogation Pro-
gram’, The New Yorker, 13 August 2007. For an eloquent protest against the Bush/Cheney squirming,
see [Gen.] Kelley, P. X. and Turner, Robert F., ‘War Crimes and the White House: The Dishonor in a
Tortured New “Interpretation” of the Geneva Conventions’, Washington Post, 26 July 2007, A21.
39 See Shue, Henry, Basic Rights, 2nd edn. (Woodstock, Oxon. and Princeton, N.J.: Princeton
University Press, 1996).

this defensive counter-attack occurs, the mugger is then of course under attack
himself or herself. Does he or she in turn, then, have a right to defend himself
or herself by whatever means necessary against the stroller’s defence? Absolutely
not—why? Because the stroller was attacked without provocation and while doing
nothing wrong, but the mugger was attacked in defence while engaged in illegal
and immoral activity. 40 Now when McMahan writes that ‘in general, morality
forbids unjust combatants to attack just combatants, but the law permits this’,
it is at first difficult to know what the references are. The focus could be on
the laws and moral rules for ordinary, domestic life or the law of war and the
‘morality of war’. On the one hand, the point could be that the moral rules for
ordinary life forbid the mugger—the ‘unjust combatant’, who, however, is not a
combatant but a civilian mugging another civilian—from attacking the stroller—
the ‘just combatant’, who, however, is not a combatant but a civilian strolling.
But McMahan adds ‘the law permits this’, and of course domestic law forbids
the mugger from injuring the stroller in an effort to prevent the stroller from
defending himself or herself every bit as firmly as ordinary moral rules do. So
the law to which McMahan is referring must be the law of war. The law of war
undoubtedly permits combatants on each side to attack combatants on the other
side. So the moral rules for ordinary life forbid muggers from attacking strollers,
but the law of war allows combatants on each side to attack combatants on the
other side. This of course would be simply the contrast between ordinary life and
war from which all the issues arise—this is the problem, not the solution. So the
‘morality’ that forbids ‘unjust combatants’ from attacking ‘just combatants’ that
is being invoked must be McMahan’s ‘morality of war’.
This brings us to the key question: what is this ‘morality of war’ and where did it
come from? The answer, I believe, is that it rests specifically upon the unsupported
transference into war of a requirement of individual moral liability to attack,
analogous to the requirement that holds in general in ordinary life for civilians,
that is, ordinary persons. The mistake thus made has been brilliantly characterized
by Christopher Kutz as an attempt at ‘attuning the evils of war to the wrongs of the
parties’. 41 Admirably, McMahan would like for war to make moral sense, judged
by the standards of ordinary morality; he would like the evils of war to fall only
upon those who have done wrong. This is fervently to be wished, but not, I fear,
possible. War is not a distributive mechanism. War is especially not a mechanism
that can allot the evils of death and destruction only, or even mainly, to those who
have done wrong and protect the lives and goods that belong to those who have
done right. This is a profoundly important reason not to fight wars, especially—it
must be said in the wake of the disastrous invasion of Iraq in 2003 by the United
States and the UK—discretionary wars, or ‘wars of choice’. But it sadly does not
40 Interestingly, a directly analogous principle is found in the laws governing the resort to war by
states but not in the laws governing the conduct of war by individuals. ‘There can be no self-defense
against self-defense’—USA v. Von Weizsaecker et al. (the Ministries case) (Nuremberg, 1949), 14 NMT
314, 329—cited in Yoram Dinstein, War, Aggression and Self-Defence, 4th edn. (Cambridge: Cambridge
University Press, 2005), 178, n. 20.
41 Kutz, Christopher, ‘Fearful Symmetry’, JUW, 75.
provide us with a basis on which it is possible to make the conduct of any wars
that are fought morally better.
Here is McMahan’s fundamental defence of the unjustified analogy that I have
just criticized
It is, however, a mistake to suppose that the legal principles [of war] can be defended in
this way, for the corresponding moral principles are false. It is not true, for example, that
one makes oneself liable to defensive attack simply by posing a threat to another. If that
were true, those who engage in justified self-defence against a culpable attacker would then
lose their right not to be attacked by him or her. And police would forfeit their right not
to be attacked by criminals they justifiably threatened. The correct criterion of liability to
attack in these cases is not posing a threat, nor even posing an unjust threat, but moral
responsibility for an unjust threat. According to this criterion, just combatants cannot be
liable to attack by their unjust adversaries. As in the case of an individual who engages in
justified self-defence, a combatant who takes up arms in self-defence or in defence of other
innocent people against an unjust threat does nothing to lose his moral right not to be
attacked or to make himself or herself liable to attack. 42
Let us accept for present purposes that moral responsibility for an unjust threat
is the correct criterion for liability to attack in life outside war among civilians.
This is why the stroller may attack the mugger, but the mugger may not attack
the stroller. Even a war fought fully in accord with LOAC is very very different, as
McMahan rightly keeps emphasizing. The combatants on an unjust side of a war,
who are the nearest—but not very near—analogue to the mugger, may attack the
combatants on a just side, who are the nearest—but not very near—analogue to
the stroller. This is a terrible thing: it brings death and destruction upon people—
combatants on a just side—who do not deserve to suffer death and destruction—
who indeed do not deserve to be ripped from the bosoms of their families and
thrust into bloody battles. War is terrible, even if it is fought in accord with the
laws of war. And we have no assurance that the existing laws of war are the morally
best rules for war and, I believe, much reason to think that some are not.
War is terrible, and one specific respect in which it is terrible is that the criteria
for targets that may legitimately be attacked is not moral liability for wrong—for
unjust threat. Defenders are not engaged in unjust threat; they are only defending
themselves. They ought not to have to die. Michael Walzer put it eloquently in
1977: ‘The wrong the aggressor commits is to force men and women to risk their
lives for the sake of their rights.’ 43 One might not be able to justify participating
in an activity so profoundly unfair; certainly politicians like Bush/Cheney who
choose to fight unnecessary wars deserve severe condemnation. But McMahan
is not advocating the elimination of war; he is advocating the piecemeal reform
of war through having his ‘morality of war’ override the laws of war for consci-
entious individuals. Specifically, he is advocating the replacement of the criteria
for persons and objects legitimate to attack embodied in the existing laws of
42McMahan, Jeff, ‘The Morality of War and the Law of War’, JUW, 21–2.
43Walzer, Michael, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 4th edn.
(New York: Basic Books, 2006), 51. The first edition appeared in 1977.
war (the criteria of ‘legitimate target’) with the same kind of criterion employed
outside war in ordinary life, a standard of individual moral liability, as we will
see below when we turn to his handling of conflicts between law and morality. 44
This is the revolutionary recommendation for which the case would have to be
made.
This does in fact seem to me to be a ‘reform’ of war that would require the elimi-
nation of war, but my point in this chapter is not so much that the McMahan thesis
that the criteria must be criteria of individual moral liability is incorrect as that it
is entirely unproven and flies in the face of obvious differences between peace and
war. Fundamentally, we are shown only that the handling of appropriateness of
targeting for attack in war is disanalogous to its handling in ordinary life, which
of course is correct, but then told that it ought to be analogous. This seems to
me simply to beg the question, which is: should it be analogous? And, first—since
ought presupposes can—could it possibly be analogous? The context of interna-
tional conflicts, for example, is radically different from the domestic context. So-
called realists in international relations exaggerate wildly when they say that all
international affairs is a Hobbesian anarchy. On the contrary, international affairs
is partly structured by laws and norms, including most notably (and amazingly)
laws and norms governing war. But wars themselves are instances of anarchy in
the sense that they are fights with many shifting participants and without referees;
no one is available to enforce the laws of war except the participants in the war,
who must then attempt to enforce the rules upon each other while attempting to
defeat each other and avoid death. It would hardly be surprising if the best rules
that could govern such an anarchic, violent realm as international conflict were, in
various ways, disanalogous to the principles governing ordinary life, where there
is ordinarily a more or less sovereign government with the authority and power to
enforce whatever laws there are, as well as the information and time to reflect on
individual moral responsibility.
This does not mean, contrary to the most simple-minded ‘realism’, that there
can be no effective rules for war, nor that none of the rules can bear any resem-
blance whatsoever to domestic rules. What it does mean is that it is always an
open question how analogous various aspects of the international arena, and in
particular international armed conflict, are to normal domestic life and, therefore,
an open question to what extent the rules and principles appropriate to domestic
life are appropriate to various international contexts. This is simply a reminder
of the obvious point that the notorious ‘domestic analogy’ often does not hold.
Walzer was correct:
The domestic analogy is of little help here. War as an activity (the conduct rather than the
initiation of the fighting) has no equivalent in a settled civil society. It is not like an armed
robbery, for example, even when its ends are similar in kind. Indeed, it is the contrast rather
than the correspondence that illuminates the war convention. 45
44 For the currently operative criteria, see 1977 Geneva Protocol I, esp. Articles 50–8.
45 Walzer, Michael, Just and Unjust Wars, 4th edn., 127. Cheyney Ryan refers to this as the ‘non-
equivalence problem’, noting that ‘war-as-its-own-reality emphasizes the distinctiveness of the soldier’s
David Rodin has pointed out that my position may be taken to be analogous to
the position of someone who opposed the abolition of slavery while advocating
‘humane reforms’, for I do not embrace pacifism but instead advocate that we
follow the morally best laws of war (as long as wars continue), while acknowledg-
ing that even law-observant war would still be a rights-violating horror. Why is
this not like advocating keeping slaves but treating them a little better? Obviously,
an adequate answer to this troubling worry would require more space than is
available here, but something should be said about it. On the one hand, I do not,
of course, oppose the abolition, or rather elimination, of war. Not being a pacifist
does not involve believing that wars are a good way to settle disputes. On the
contrary, I believe that we ought to do everything morally acceptable in our power
to prevent virtually all wars, especially wars of first resort like the catastrophe
inflicted upon Iraq by Bush/Cheney. For reasons based on my understanding of
political and historical change, I believe that the best means towards the end of the
elimination of war is the prevention of particular wars. When no particular wars
start, war in general will have been eliminated, whether or not legally abolished.
On the other hand, two qualifications, one smaller and one larger. Until some
awful practices other than the practice of war itself change, I believe that justified
war can, in rare circumstances, be the least evil path. This judgement is obviously
a compound of empirical and moral considerations. Where genocide is being
perpetrated against defenceless victims, one ought to use military force to protect
the victims—the counterfactual Rwanda 1994. Of course, it would be better still
by far to prevent the genocide than to stop it by force; but better to stop it by
force than to stand by and let it run its course after failing to prevent it. 46 When
we fail to prevent the genocide, we ought to come to the aid of the victims (who
are perhaps in some part our victims precisely because we failed to prevent the
genocide).
More consequential for the foreseeable future, some wars will in fact occur
whether the resort to war is ever justified or not. When they are not justified,
we should obviously say so and we should urge young people not to fight in them.
But we should still have guidance for those who are forced to or choose to fight
in them. This is what the laws of war are for; given what they are for, they should
be the morally best laws they can be. The reasoning is not that the practice of
war is morally acceptable provided we make it more humane—compare: slavery
is acceptable if only we treat the slaves better. It is: as long as wars are in fact
fought, we should fight them in the least inhumane manner that opposing sides
can be brought to accept. On this point, I believe that McMahan and I are in
complete agreement. Our disagreement is in our judgements about how much less
role’—see Ryan, Cheyney, ‘Moral Equality, Victimhood, and the Sovereignty Symmetry Problem’, JUW
137–8.
46 I have discussed Rwanda in particular elsewhere: Shue, Henry, “Let Whatever is Smouldering
Erupt”?: Conditional Sovereignty, Reviewable Intervention, and Rwanda 1994’, in Between Sovereignty
and Global Governance: The State, Civil Society and the United Nations, Paolini, Albert, Jarvis, Anthony,
and Reus-Smit, Christian (eds.) (London: Macmillan, 1998; and New York: St. Martin’s, 1998), 60–84.
inhumane war can be and, in particular, to what extent warriors can be expected
to behave in ways analogous to conduct acceptable in ordinary life, and most
specifically, whether it is reasonable to aim at war’s killing only persons morally
liable to be killed. 47 McMahan and I disagree, not about which change would be
morally better, if it were possible, but about which is possible.
We are indebted to McMahan for showing us in such painstaking and painful
ways how different, and in general how much more awfully permissive, the exist-
ing laws of war are than the rules of morality for ordinary life. My underlying
contention, however, is that a demonstration of difference is not a demonstration
of a requirement of greater similarity, while nothing else changes. Between ordi-
nary life and war, the activities and the arenas are different; the rules for conduct
in those arenas are bound to be correspondingly different as well. We have to be
shown more than divergence; we need to be shown why, and how, it is possible to
reduce the divergence. I do not believe that case has been made.
In addition to its lack of grounding, which rests on dubious analogies, I think
that McMahan’s approach confronts two serious internal problems, which I will
sketch in respectively the final two sections of this chapter.
5.6. MMAHAN ON CONFLICTS BETWEEN MORALITY AND LAW
It might be suspected that McMahan does not really expect the current criteria
for legitimate targets to attack in war to be supplanted by the criterion of moral
responsibility for an unjust threat and that he simply (but importantly) is warning
us against the illusion that, even at best, war can be fought in any manner that is
remotely fair. 48 He might have been presenting us with an unresolved dichotomy
between ‘morality of war’ (Grotian internal justice?) and law of war (Grotian
external justice?). His section (Section 2.6.1, Chapter 2) on ‘Conflicts Between
Morality and Law’, however, demonstrates otherwise. He does not expect the
laws of war to be changed, but he advocates systematically violating them in the
name of the ‘morality of war’ in a number of kinds of cases, while nevertheless
retaining them. McMahan attempts to resolve his dichotomy, and he resolves it
fundamentally in favour of the ‘morality of war’. This raises deep issues about what
status he can actually attribute in the end to the laws of war and about whether his
whole account is coherent.
He sketches three general types of conflict: a permission with a prohibition,
a requirement with a permission, and a prohibition with a requirement. Each
47 I am grateful to David Rodin for underlining how much McMahan and I agree on. For example,
we both believe there is a deep bifurcation, but we characterize it differently. For me, it is between
the rules it is reasonable to follow in ordinary life and the rules it is reasonable to follow in organized
deadly combat. For McMahan, I think, it is between the ‘morality of war’ and the laws of war, where
the former is supposed to guide individual action in war. What the latter are supposed to do is, as I
note below, quite unclear to me.
48 I took this to be the point of McMahan, Jeff, ‘The Ethics of Killing in War’.
type naturally has two forms, depending on which side represents the ‘morality
of war’ and which represents the law of war, for a total of six forms of conflict. For
example,
one type of conflict is that in which a principle from one domain permits a certain act or
form of conduct while a corresponding principle from the other domain forbids it. Thus,
[A] the morality of war might permit a certain act while the laws of war would forbid it,
or [B] morality might forbid it while the law would permit it. This is not a serious form of
conflict. In each case, one ought to obey the prohibition. 49
On the contrary, this is an extremely serious form of conflict—absolutely

fundamental—and it is far from obvious that prohibitions should always trump
permissions in the circumstances of war. But the most important element to note
is that McMahan is presenting these conflicts as choice situations in which one
ought to decide to obey one kind of principle and violate the other. The principles
of the ‘morality of war’ are not simply reminders to us that wars, even wars fought
in accord with the laws of war, are nasty and unfair. We are not simply being
cautioned not to have illusions about ‘fair fights’—always a salutary reminder
about the horrors of warfare. We are, according to McMahan, to abide by the
principle from the ‘morality of war’ and violate the principle from the law of war
whenever the former is a prohibition and the latter is a permission. Prohibitions
always trump permissions. By any measure this is an extremely strong claim.
When the conflict takes the form I have labelled [B]—the prohibition repre-
sents ‘morality of war’ and the permission represents the laws of war—this is an
extraordinarily strong claim. It means that whenever the negative demands of the
‘morality of war’ are more stringent than the demands of the laws of war, the war
ought to be fought in accord with the ‘morality of war’, not in accord with the
(more permissive) laws of war. McMahan has made it abundantly clear—this is
perhaps his primary thesis—that no one ought to be subject to attack unless he
or she is morally responsible for an unjust threat. This means, apart from special
cases, that no combatant on the unjust side of the war ought to attack a combatant
on the just side of the war. The laws of war permit combatants on each side to
attack combatants on the other side. Since the laws permit, but morality prohibits,
the combatants on the unjust side are prohibited from attacking the combatants
on the just side and ought not to do so, according to McMahan’s recommendation
about this type of conflict.
Now, as everyone understands, there is an obvious sense in which combatants
on an unjust side ought not to attack combatants on a just side, namely, unjust
wars ought not to be pursued, and no one ought to participate in them on the
unjust side. This is the principle governing the resort to war (jus ad bellum), and,
I agree with McMahan, it ought to be the principle governing individual choice
about whether to participate in war. If it is unjust, do not do it. Only initiate a war,
if you are a leader, or fight in a war, if you are a soldier, if it is just—really just,
objectively just.
Once one has decided that one is fighting on the just side of a war, however,
the preceding is very little help—not absolutely no help—with the conduct of
the war (jus in bello). It is still some help, because a good rule might always be
to ask oneself every once in a while, am I really sure that this war I am fighting
is really just? And once the war has been going for a while, it is useful to ask:
even given that this war was just when we began, is it still just or has the mission
crept beyond the justified into the unjustified? 50 But the principle that one ought
to fight only in wars that are just tells one little else about how to conduct wars
that one has decided to fight in. One would know, for example, that if one had
misjudged the war and so one was fighting against a just side, one ought not to
be attacking anyone on the other side. Again, even the mere possibility that one
might be mistaken is not totally useless as a guide for action: one might decide that
one should not kill where it was only necessary to wound, not wound where it was
only necessary to capture—generally, minimize the damage necessary for victory
in case one was mistaken. 51 Appreciating that one’s beliefs may be mistaken may
well encourage restraint in acting upon them. What it will not do is lead one to act
as if they are mistaken, while one still believes them. What one would not decide
is not to attack anyone on the other side, even though one had decided that one
ought to participate in the fighting.
One difficulty, then, with McMahan’s recommendation always to abide by pro-
hibitions like the prohibition against attacking those who are not morally liable to
attack is that it is next to useless as an action-guiding principle for the conduct of
war. It would encourage critical reflection and encourage restraint, but it would
otherwise be useless to an agent deciding how to fight, even if, per impossible, he
or she had the information and opportunity to apply it to individual adversaries.
This, in turn, sharply raises the question: how did this principle become part of
the ‘morality of war’, since it is largely useless in the context for which it is recom-
mended as a guiding rule? Indeed, how did it not only become part of the ‘morality
of war’ but also become such an important principle that it is the basis for ignoring
the laws of war? Citizens deciding whether to participate in a war—deciding about
their state’s resort to war—can helpfully bear in mind a principle that says that
it is wrong to kill when your cause is not just. This means that it is supremely
important to discover whether what the state is telling you to do ought to be done.
Bush/Cheney (and Blair) lied about Iraq; governments often lie to young people
whom they would like to have kill and die for them. But soldiers who have joined
the war, having now decided to fight it, are given almost no guidance—apart from
the importance of continued reflection and restraint—by a principle saying that
50 Both Tony Coady and Tony Coates make the crucial point that wars that start out being justified
can become unjustified through violations of the standards governing the conduct of war and viola-
tions of the requirement of right intention—see Coady, C. A. J., ‘The Status of Combatants’, JUW, and
Coates, Anthony, ‘Is the Independent Application of jus in bello the Way to Limit War?’ JUW.
51 Such a requirement, although not this fallibilist grounding, is at the heart of the St. Petersburg
Declaration: ‘For this purpose it is sufficient to disable the greatest possible number of men; . . . this
object would be exceeded by the employment of arms which uselessly aggravate the sufferings of
disabled men, or render their death inevitable’; Roberts and Guelff, 55.
it is wrong to kill those who are not morally responsible for unjust threats. In
their understanding of their own circumstances, the principle may mean that their
adversaries ought not to be killing them, a judgement with which they already
heartily agree. It is, however, mostly irrelevant to their own choices of actions
directed at adversaries whom they have already decided to fight. Principles about
how you should behave if your own beliefs about what to do are false are not
helpful as action-guiding principles, whatever other uses they may have.
I am, I hope it is clear, not embracing relativism. I am not suggesting for a
second that if you believe your cause is just, you are justified in pursuing it, even to
the point of killing people for its sake. I am simply observing that principles that
are intended to be action-guiding must be understandable as relevant by those
whose actions they are to guide. The addressee presupposed by the principle must
bear some resemblance to the agent’s self-conception. Cheyney Ryan has put it
eloquently: ‘if our reflections on war are to impact the conduct of soldiers, then
(at certain moments, at least) they must speak to them as soldiers, hence to the
experiences that constitute them as such’. 52 A soldier in combat does not need
to be told what he should be doing now if his decision to be where he is were
mistaken, that is, that he should not be killing the people on the other side if he is
wrong to be fighting on his side. That is of course true: he should indeed not be
killing the people on the other side if he is wrong to be on his. But since he believes
he is right to be there, as evidenced by his behaviour in joining his own side, he
will find this principle irrelevant to his circumstances as he understands them, and
it will not guide his action. In order to guide his action, a principle must be of the
general form: even if you are right, you cannot kill civilians, surrendering com-
batants, and POWs—this is how to fight, assuming (as you do) that you should
be fighting at all. Tony Coady, who is equally no relativist, puts it beautifully: ‘Not
only is it likely that both sides to a violent conflict will believe themselves to have
a just cause, but this subjective fact often mirrors certain objective features of the
situations leading up to war, even if the mirroring is subject to distortions.’ 53 The
need for the rules of conduct to guide actual combatants is a vitally important
point also made by Tony Coates and Adam Roberts in their chapters in this book.
5.7. STATUS OF THE LAWS OF WAR: A DILEMMA FOR MMAHAN
The other most problematic feature of McMahan’s approach to the severe conflicts
that result from his two-tiered picture is the dubious status his position assigns to
the laws of war. 54 I believe that just as in ordinary life—on this point, analogy
52 Ryan, Cheyney, ‘Moral Equality, Victimhood, and the Sovereignty Symmetry Problem’, JUW,
132.
53 Coady, C. A. J., ‘The Status of Combatants’, JUW, 164–5.
54 I agree with Adam Roberts that this is profoundly troubling—see his chapter in this book. It is
monumentally important that we have laws of war that we can have some hope that all sides who are
not truly diabolical might generally abide by.
holds—one morally ought to obey the morally best laws for the circumstances
even when their content differs from the content of the rule morality would
hypothetically have required if one did not in fact need law. The laws of war permit
combatants on each side to attack combatants on the other side (and only them).
McMahan believes this contravenes the ‘morality of war’, which tells us that while
the combatants on the just side may attack the combatants on the unjust side,
those on the unjust side may not attack those on the just side. If what is said about
the ‘morality of war’ were true, where would this leave this particular law of war,
which is widely understood to be Rule 1 of the customary laws of war? 55 Is the rule
permitting combatants on each side to attack combatants on the other side the
morally best rule for this aspect of war, or is there a different rule that is morally
better? We want the laws of war to be the morally best rules for the circumstances
of war. It is by no means obvious that the morally best laws for war are those whose
content is most similar to the moral rules (or the law) for ordinary life. 56
The tough issues arise for soldiers on what is objectively an unjust side. Think
of these soldiers as decision-making agents being given conflicting guidance for
their actions. Law says: you may attack combatants on the other side (because
the law applies equally to both sides). Morality, according to McMahan, says: you
must not attack combatants on the other side (because your side is wrong). The
law has a single standard for everyone; McMahan’s ‘morality of war’ has what is
literally a double-standard: one standard for combatants who are on a just side and
one for combatants who—often unknowingly—are on an unjust side. I argued in
the previous section that it is largely useless, even if not incoherent, to address to
people guidance for action in a situation based on the premise that their believed
reasons for being in this situation are mistaken. Such advice amounts to saying:
given that you are misguided to be here at all, this is how you ought to conduct
yourself. 57 Now I press a different problem: how can the relevant law be the
morally best law if, as McMahan assumes, the moral rule is correct? Why tolerate
(but disobey) a law of war that flatly contradicts the relevant rule of morality?
Philosophers sometimes defend the existing rule of discrimination (combatants
may be attacked; non-combatants may not be attacked) by appeal to what are
described as the practical difficulties of operating a double-standard of the kind
in McMahan’s moral rule. The arguments come in various specific forms, but the
general idea is that if one says Good Chaps are permitted to do X and Y, but Bad
Chaps are prohibited from doing Y, practically everyone will do X and Y because,
apart from bizarre cases, people tend to consider themselves to be Good Chaps
55 Henckaerts and Doswald-Beck, 3. The authors are reporting the findings of a monumental
research project authorized by the International Committee of the Red Cross.

56 I would speculate that McMahan simply cannot believe that a law whose content is so different
from the content of the moral rules applicable to ordinary life could possibly be the morally best rule
for the circumstances. I have not, of course, even attempted to show that Rule 1 of the customary law
is the morally best rule. My contention is only the negative one that the great divergence of its content
from the rules for ordinary life is not a conclusive reason to think it is not. The best rules for war will
greatly diverge because the circumstances of war are so radically different.
57 Surely, the better guidance is: leave.
(or, if they really do take themselves to be Bad, they may well think that Bad Chaps
should exploit loopholes like this one). So, if one says that the just side may execute
POWs who wrongly planned the unjust threat being resisted, but the unjust side
must not execute any POWs, lots of POWs will in fact be executed by both sides.
So, if it seems enforceable, better just to say: never execute POWs (if wrongful
war-planners deserve to die, they can be tried and executed after the war is over).
This might be called the problem of the psychological irresistibility of the lower
standard.
Either this appeal to the irresistibility of the lower standard is a good psycho-
logical argument or it is not; I cannot pursue it for its own sake now. If it is not a
good argument, then it is difficult to see why it works for law any more than for
morality. In that case, why would not a morally better law have a double-standard
parallel to the one invoked by morality? Or, if it is a good argument for law, why
is it not applicable to morality?—perhaps double-standards are to be avoided in
both arenas because human psychology is the same in both.
One additional mysterious feature of McMahan’s view, then, is why the law of
war and the ‘morality of war’ should give contradictory guidance with the law
having a single-standard and morality having a double-standard. Is there some
reason to believe that a lower moral standard is not irresistible while a lower legal
standard is irresistible? What is that reason? Law is morally permitted to have a
single-standard, but, on McMahan’s position about conflicts between morality
and law, the moral action is to ignore the law (because the moral rule prohibits
while the law permits). Why do we not either arrive at a morally better law or, if
the one we have is the morally best law, obey it? Indeed, what are the laws of war
for, on McMahan’s position?
I believe that Jeff McMahan, like David Rodin, whose quite different argu-
ments I have not had space to engage directly, are pursuing a profoundly morally
appealing but impossible dream: a conception of a war that does not violate
rights. But wars cannot be fought without violating rights. 58 Until all wars can
be prevented, we need rules for their conduct that take the objective reality of
rights-violation into account. These will be rules like no others, for nothing else
is remotely like war. As Cheyney Ryan puts it, we must confront ‘war-as-its-own-
reality’. Analogies with ordinary life only mislead.
58 The most thorough analysis of rights and war that I know is Per Ilsaas, The Concept of Evil and
the Justification of War.

Do We Need A Morality of War

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5

Do We Need a ‘Morality of War’? 1

5.1. GENERAL CONTEXT

McMahan, David Rodin, Seth Lazar, and Per Ilsaas.

5.2. MMAHAN’S TWO TIERS

In an intellectually provocative series of essays now stretching over decades and

have taken as much account as reasonably can be taken of fundamental moral

5.3. THE MORALLY BEST LAW FOR ORDINARY LIFE

5.4. THE MORALLY BEST LAW FOR WAR

a competing ‘morality of war’.

5.5. THE SPECIFICS OF WAR: ‘MORAL LIABILITY TO ATTACK’

So far I have been exceedingly—perhaps excessively—abstract. It is well past time

The fundamental problem with McMahan’s view, I believe, is the assumption

of War (D.Phil., Oxon., in progress), is the focus on features of individuals—individual combatants or

and Guelﬀ, 448–53.

to distinguish oneself from the civilian population, thus deﬁning combatants in

University Press, 1996).

5.6. MMAHAN ON CONFLICTS BETWEEN MORALITY AND LAW

On the contrary, this is an extremely serious form of conﬂict—absolutely

5.7. STATUS OF THE LAWS OF WAR: A DILEMMA FOR MMAHAN

research project authorized by the International Committee of the Red Cross.

the Justiﬁcation of War.

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