Journal of Military Ethics (2003) (2(3)): 245
/251

Editor’s note: The aim of these Book Discussions is to examine contemporary works in the
field of military ethics and highlight how their authors are contributing (knowingly or not) to
on-going discourse or debates on issues that may be of interest to our readers. Some
discussions will direct the reader’s attention to a single book or article, presented in a context
in which it may not have been previously considered, while others will attempt to reveal
connections among a cluster of works that are worthy of further exploration.

BOOK DISCUSSION

David Rodin’s War and Self-

Defense
David J. Garren
Department of Leadership, Ethics and Law, United States Naval Academy, 112 Cooper Road,
Stop 7-B, Annapolis, MD 21402, USA
Tel:/1 410 293 6020, Fax:/1 410 293 4896, E-mail: garren@usna.edu

In the aftermath of Operation Iraqi Freedom one question has risen to the fore and
dominated the post-war debate: did the Iraqis possess weapons of mass destruction,
and if so, of what kind and to what degree? It is widely believed to be the case that if
the Iraqis possessed an arsenal of chemical or biological weapons that were ready
for immediate deployment, that possession, under the autocratic and antinomian
rule of Saddam Hussein, constituted a grave and imminent threat to the peace and
security of the United States and its allies. As such, the United States, along with its
allies, was justified in waging war against Iraq strictly as a matter of national
self-defense. But if Iraq had no such arsenal then it has been suggested that there
was no justification for the war with Iraq, at least not strictly as a matter of national
self-defense, since there was no grave and imminent threat to the peace and security
of the United States or its allies.
It is important to note, however, that what is at issue in this debate is a matter
of fact, not value. Those on both sides of the debate share the same normative
presumption; namely, that a nation-state may justifiably wage war in self-defense
when it is, or is likely to be, attacked. And they are not alone in this view. This is the
view, for example, of the Just War Theory both in its theological and secular forms
(a view, for example, common both to St. Thomas Aquinas in his Summa Theologica
and Michael Walzer in his Just and Unjust Wars ). And it is also the view of
International Law both in its customary and conventional forms (Article 51 of the
Charter of the United Nations, for example, explicitly recognizes the right of self-
defense for its member states if they are subject to armed attack). What is more, this
view seems to reflect a deep-seated, long-standing, common sense intuition that if

ª 2003 Taylor & Francis DOI: 10.1080/15027570310000702

246 Book Discussion

one is attacked or about to be attacked, one may justifiably resist such aggression
and when necessary employ lethal force to overcome it.
David Rodin in his fascinating new book, War and Self Defense (2002),
challenges this intuition and its nearly universal instantiation as a moral and legal
norm. First, he challenges it at the level of the individual. That is, whether the
individual himself has the right to self-defense. Second, he challenges it at the
national level. That is, whether the nation-state has a right to self-defense (one that
can either be derived from or analogized to the individual’s right to defense).
Ultimately he concludes that a plausible and sustainable argument can be made on
behalf of the individual’s right to self-defense, but for reasons that I will discuss
below he concludes that no such argument can be made on behalf of the nation-
state. Oddly, this does not leave Rodin in the untenable position of defending
pacifism as a response to state aggression. Rather, it leaves him in the somewhat
quixotic position of defending law enforcement under the auspices of a minimal
universal state, as a response to such aggression. About this more needs to be said,
but in order to do so we must begin with Rodin’s conception of rights.
According to Rodin, rights are a moral phenomenon characterized by four
distinctive features. First, they are relational. Second, they generally override
competing moral considerations, including and perhaps most especially, conse-
quential considerations. Third, they confer advantage on those who possess them.
And, fourth, they have a unique relation to individual moral subjects.1
Thus when we speak of the individual’s right of self-defense, what we are
referring to, according to Rodin, is a unique relation that exists between attacker
and defender, in which the defender enjoys a specific normative advantage. The
defender is namely at liberty to kill the attacker (he may use lethal force, he is under
no duty to so), while the attacker has no claim against the defender that he refrain
from doing so. As such, the right of self-defense is a form of justification rather than
excuse. Whereas excuse is a defense in which one admits wrongdoing but denies
responsibility (‘Yes, I killed him but only because I was temporarily insane’),
justification is a defense in which one admits responsibility but denies wrongdoing
(‘Yes, I killed him but I was right to do so because he was about to kill me’).
Yet it is important to keep in mind that self-defense is a qualified right, one that
functions as a valid form of justification only if the conditions of necessity,
imminence, proportionality and, as Rodin suggests, end are satisfied. The defender,
in other words, is at liberty to kill the attacker if and only if the good sought to be

1
It should be noted at the outset that Rodin’s discussion of rights, based as it is on the work of the legal
theorist Wesley Newcomb Hohfeld, is extremely technical and perhaps best avoided by the reader solely
interested in the question of whether self-defense can serve as just cause for war. It is also worth noting
that despite Rodin’s reliance on Hohfeld, his conception of rights differs in two important respects. First,
although Hohfeld himself believes that a right in its simplest form is nothing but a claim and therefore a
correlate of duty, Rodin rejects this view, believing that not all rights can be reduced to this one relation.
In addition to claims and correlative duties, Rodin argues that rights can and often do consist of
relations between liberties and correlative no-claims, powers and correlative liabilities, immunities and
correlative disabilities and in many cases some complex combination of all four. Second, where Hohfeld
believes that these concepts of claim, duty, liberty, no-claim, power, liabilities, immunities and
disabilities consist of a three-fold relation between subject, content and object, Rodin believes that they
consist of a four-fold relation between, subject, content, object and end. See Hohfeld (1919).
 Book Discussion 247

protected is of sufficient value (life, limb and in some cases, liberty),2 the threat to
the good is serious and immediate, no other reasonable means, such as retreat or
escape, is available to protect the good and the harm inflicted by the defender is
proportionate to the harm averted.
A central problem of a rights-based account such as this, however, is to
explain how it is that the defender is at liberty to take the life of the aggressor, if the
right of self-defense is entailed by more fundamental rights, such as life and liberty,
and those rights are considered to be not only universal but also inalienable. The
traditional response has been to argue that the defender may take the life of the
aggressor because the aggressor in threatening the life of the defender has forfeited
his right to life. That is, although the individual may not alienate (voluntarily
surrender) his right to life, nevertheless he may forfeit it through his evil deeds. But
that only begs the question: how is it that the aggressor’s and not the defender’s
right to life is forfeit? For at the moment of engagement each poses a threat to the
life of the other.
In the philosophical literature this has come to be known as the problem of
moral asymmetry, i.e., the problem of how to account for the fact that the defender
and aggressor are not symmetrically situated in moral terms despite the fact that at
the moment of engagement each poses a threat to the life and liberty of the other,
and thus each could properly be said to have forfeited his right to life. Rodin
attempts to resolve the problem of moral asymmetry by reviving and reconstructing
the concept of fault. On his view, because the aggressor is at fault and the defender
is innocent the aggressor forfeits his right to self-defense while the defender does not.
As he says:

[I]f the aggressor makes an attack upon my life, in the absence of any special
justifying circumstances, he wrongs me. Because I am innocent and he is at
fault for the aggression, his claim against me that I not use . . . lethal force
against him becomes forfeited (or fails to be entailed by his right to life).
Therefore I have a right (liberty) to kill him. Therefore when I attack him to
defend myself, I do not violate his right to life, and hence I do not wrong him.
Because I do not wrong him, I do not forfeit (or fail to possess) my right to life
(79).

But even if he is right about this, one is left wondering whether Rodin has resolved
one problem only to replace it with another. That is to say, if the concept of fault is
going to account for the moral asymmetry of defender and aggressor, what then of
those cases where the aggressor threatens the life of the defender but is considered
not to be at fault, due to factors such as compulsion, automatism, and the like? In
such cases does the defender not have a right, a simple liberty, to kill the aggressor?
Rodin denies that there is any such right, arguing that where the aggressor is
incapable of voluntary choice he is no longer a moral subject and therefore no
longer capable of wronging the defender, i.e., no longer capable of violating his

2
Indeed, the right of self-defense, like all defensive rights, is a derivative right. That is, it is derived from
more fundamental rights and duties, such as the right to life and the duty of care towards others to
whom one is obligated to protect, as a parent is towards a child.
248 Book Discussion

rights. In short, the aggressor who involuntarily threatens the life of the defender is
very much like a lightening bolt. Both are capable of harming the defender, but
neither is capable of wronging him and thus neither is capable of forfeiture.
This leads to two further problems, however. First, when is the aggressor
properly considered to be acting involuntarily as opposed to voluntarily, i.e., when
is he properly considered to lack the requisite cognitive and affective abilities of a
moral agent? Here Rodin is somewhat ambivalent. Under conditions of physical
compulsion and automatism Rodin believes that the aggressor lacks sufficient
cognitive and affective ability to be considered a moral agent, while under
conditions of duress, necessity and provocation he believes that the aggressor
retains sufficient cognitive and affective ability to remain a moral agent. But under
conditions of mistake, ignorance, infancy, intoxication and insanity Rodin is not so
sure. Sometimes under such conditions the aggressor remains a moral agent and
sometimes he does not, according to Rodin.
Secondly, if one assumes that Rodin is right and the aggressor who
involuntarily threatens the life of the defender is no longer a moral agent, in as
much as he lacks the requisite cognitive and affective abilities to be such an agent,
then the very thing that prevents the aggressor from being killed, i.e., his right
(claim) to life, is absent. To put the point most explicitly, if the involuntary aggressor
is analogous to a non-rational, non-conscious, amoral agent like a fire, for example,
then the aggressor like the fire may be destroyed when he threatens the life of the
defender. Fault and forfeiture, as it were, would be inoperative precisely because
there is nothing, no right, to forfeit on the part of the aggressor.
All of this is prolegomena, however, to Rodin’s central claim, which is that
while individuals have a right of self-defense nation-states do not. Indeed, the whole
of the second half of War and Self-Defense is devoted to curing us of the ‘sickness in
our thinking about war and peace’ which leads us to believe that nation-states have
either by way of derivation or analogy anything like the individual’s right of self-
defense and that self-defense can therefore serve as a valid justification for war.
Rodin begins with the argument from derivation, i.e., the argument that wars
of national defense can be reduced to or best understood in terms of individuals and
their rights. The problem with this argument, according to Rodin, is that it is
predicated upon one of two assumptions, both of which are mistaken. Either it
assumes that wars of national defense are wars fought by individuals in defense of
individuals or it assumes that wars of national defense although fought by nation-
states nevertheless are wars fought in defense of individuals and their rights.
But as Rodin says:

A war of national defense is not just a lot of people exercising the right of self-
defense at the same time and in an organized fashion. Nor is it the state
exercising the right of defense on behalf of its citizens. For the state can claim
the right to defend itself, when none of its citizens is under imminent threat,
and it can claim this right even if it thereby puts its citizens under greater
threat than if no defense were mounted (140).

Finding the argument from derivation unsatisfactory, Rodin next turns to the
argument from analogy. This argument, unlike the argument from derivation, does
not claim that wars of national defense can be reduced to instances of collective
 Book Discussion 249

personal self-defense nor understood in terms of personal self-defense. Rather, the

argument from analogy claims that wars of national defense are wars in which
the super-personal entity of the nation-state protects a super-personal good, one
that is unique to nation-states: specifically, the common life of the community. And
in as much as the right of national self-defense confers a normative advantage upon
the defender, namely the liberty to kill the attacker when a prior more fundamental
right or value (the common life of the community) is threatened, it is analogous to
the personal right of self-defense, which confers the same normative advantage
upon the individual when a prior, more fundamental right or value (life, liberty,
personal integrity) is threatened.
The difficulty, according to Rodin, is that the common life of the community,
however it is understood */political association, cultural or historical heritage,
collective self-determination and autonomy */is incapable of providing a sufficient
moral basis for the right of national self-defense. To begin with, if the common life of
the community is understood in terms of political association, it is hard to see how it
would entail a right of national self-defense, given that (a) a stable political order (at
least, a stable international political order) might be better served by eliminating
nation-states and their right of national self-defense and (b) a stable political order is
not necessarily jeopardized by an invading state; indeed, it may well be augmented
or improved by it.
Moreover, if the common life of the community is understood in terms of
cultural or historical heritage, that is far too subjective to provide an adequate
moral grounding for the right of national self-defense. The fact that a culture, a
history or a common form of life is unique, or distinctive or one’s own is not in and
of itself of sufficient value to entail a right to defend it, given that some cultures,
histories and common forms of life while being unique, distinctive or one’s own are
also brutal, corrupt and manifestly unjust.
Finally, if the common life of the community is understood in terms of
collective self-determination, that may be a good sufficient to ground a right
of national self-defense, but it is difficult to see (a) how the collective would be
individuated; after all states are comprised not of a single community but rather of a
plurality of communities; and (b) once individuated, why the right would belong to
the state rather than the particular community.
As Rodin says:

Two conditions would have to be fulfilled if an account of the value of

communities were to provide an effective underpinning for the right
of national defense as that right is defined in international law and the Just
War Theory. First, we would need clear criteria for settling the identity and
individuation of communities. Secondly, the communities thus identified
would have to be substantially co-extensive with the states. Neither condition
is satisfied in the real world and it is difficult to imagine how they ever could
be, given the realities of human communal life (161).

Given the inadequacies both of the argument from derivation and argument from
analogy, Rodin is led to conclude that there is no moral justification for the nation-
state’s right of self-defense, as that right is conceived of in international law and the
Just War Tradition. Interestingly, and perhaps surprisingly, this does not lead to
250 Book Discussion

Rodin’s adoption of pacifism, but rather to his advocacy of the elimination of the
current international order. An extension of Hobbes’ contractarian project as it
were (although one Hobbes himself rejected) in which sovereign states would
surrender their sovereignty, while retaining their political associations, and submit
to an impartial international authority. War then would be permissible and morally
justifiable as a means of law enforcement under the auspices of this minimal
universal state.
Although a provocative and at times quite powerful argument, I remain
unconvinced of Rodin’s conclusions. If the state exists to protect the rights, interests
and security of its citizens then surely it has a duty of care towards those citizens
which in turn gives rise to a right on the part of the state to act in defense of them
when their rights, interests and security are threatened. And surely it is the case
that when the territorial integrity and political sovereignty of a nation-state are
threatened so too are the rights, interests and security of its citizens. Indeed, talk of
territorial integrity and political sovereignty is elliptical for the rights, interests and
security of individuals and is incomprehensible without them.
Rodin himself seems to recognize this but argues that such threats may be
conditional rather than imminent and sites the possibility of bloodless invasion as
an example. But he overlooks two things: first, although the possibility, the logical
possibility, of bloodless invasion exists, certainly the probability is, and therefore the
presumption must be, that an imminent threat to territorial integrity and political
sovereignty is at once an imminent threat to the rights, interests and security of
citizens. Indeed, given the absence of an international police force and other similar
constraints that are operative at the domestic level, but inoperative at the
international level, it would be suicidal to require of nation-states that they adopt
a wait and see approach. And this is especially true given the existence of highly
advanced weaponry */nuclear, bio-chemical and the like */capable of striking and
decimating entire populations within minutes.
Additionally, Rodin overlooks the fact that even if every imminent threat to
the territorial integrity and political sovereignty of a nation-state does not pose an
imminent threat to the rights, interests and security of its citizenry, in those cases in
which it does, clearly there is a right, a morally justified right, of national self-
defense; one that is derived from or entailed by the duty of care the state owes its
citizens. To that extent, then, Rodin’s criticisms go to the scope of the right not to its
existence or possible moral justification.
This is not to deny that there are questions surrounding the right of national
defense. As Rodin aptly points out there are questions about necessity, proportion-
ality and forfeiture. For example, who actually bears responsibility for the threat in
a defensive war, how broadly or narrowly should the notion of threat be
understood, how far may a state go in averting the threat, etc. But it is important
to keep in mind that these are questions about how to conduct a defensive war, not
whether such wars may be conducted. In short, they are about the means and not
the end: so long as the end is the individual, that is, the protection and preservation
of the individual and his rights, interests and security, such wars are justifiable.
But that I remain unconvinced of Rodin’s conclusions does not dissuade me
from recommending War and Self-Defense . It is an insightful, informative and
illuminating book that should be read by anyone interested in the principle of
 Book Discussion 251

self-defense and its incorporation and application in the Just War Tradition and
international law.

References
Hohfeld, Wesley Newcomb, 1919. Fundamental Legal Conceptions as Applied in Judicial
Reasoning . New Haven, CN: Yale University Press.
Rodin, David, 2002. War and Self-Defense . Oxford: Oxford University Press.

Biography
David J. Garren is an assistant professor of philosophy in the Department of
Leadership, Ethics and Law at the United States Naval Academy. He holds a law
degree from Brooklyn Law School, a Ph.D. in philosophy from the State University
of New York at Buffalo (2002) and is the recipient of numerous fellowships,
including most recently an Ella Baker Fellowship from the Antioch New England
Graduate School.